IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: DECEMBER 11, 2018
SUIT NO. NICN/LA/130/2011
BETWEEN
Clement Abayomi Onitiju
Claimant
AND
Lekki Concession Company Limited
Defendant
REPRESENTATION
D. O. Ogebe, with S. O. Agida, for the claimant.
M. B. Ganiyu, Olalekan Idowu, Mrs Ifeoma Megwai and Bolarinwa Oyeneyin, for the defendant.
JUDGMENT
1. This is a re-assigned case to this Court pursuant to the order of the Court of Appeal made on 17th May 2016 as per its judgment of that date setting aside the judgment of this Court delivered on 25th April 2013 in the matter. In the words of His Lordship Oseji, JCA (who read the leading judgment):
On the whole, it is my finding and I so hold that the lower court failed or ignored to [consider] the fundamental and crucial issue of lack of fair hearing presented to it for determination by the Appellant and this on its own constitutes a breach of the right to a fair hearing and thus vitiates the whole decision of the lower court.
This appeal therefore succeeds and it is accordingly allowed.
The judgment of the National Industrial Court delivered on the 25th day of April 2013…is hereby set aside.
It is ordered that this suit be remitted back to the Lagos Division of the National Industrial Court for accelerated retrial before another Judge.
The Court of Appeal ordered the retrial of the claimant’s case before dismissing the defendant’s counterclaim. The instant judgment is the judgment as per the retrial ordered by the Court of Appeal.
2. The claimant had on 13th October 2011 commenced this action by a complaint, statement of facts, list of witnesses, list of documents and copies of the documents as the then Rules of this Court required. The complaint and statement of facts were later amended. By the amended complaint and amended statement of facts, the claimant is claiming against the defendant the following reliefs:
(i) A declaration that the purported dismissal of the claimant by the defendant vide dismissal letter dated 17 August 2011 is wrongful, unlawful, null, void and of no effect whatsoever.
(ii) A declaration that the claimant is still validly and contractually within the employment of the defendant and therefore entitled to all his salaries, earnings, bonuses and perquisites of office from 17 August 2011 until it is properly and lawfully determined by the defendant.
(iii) An order setting aside the dismissal letter dated 17 August 2011 issued by the defendant to the claimant.
(iv) An order directing the defendant to immediately pay to the claimant the sum of N2,970,500.00 (Two Million, Nine Hundred and Seven Thousand, Five Hundred Naira) only being his salaries for the months of August to November 2011.
(v) An order directing the defendant to immediately pay to the claimant all his salaries, earnings, bonuses and perquisites of office amounting to N742,625.00 (Seven Hundred and Forty-Two Thousand, Six Hundred and Twenty-Five Naira) only per month from December 2011 until judgment is delivered in this suit and thereafter until he is properly and lawfully disengaged from the services of the defendant.
3. The defendant reacted by filing its statement of defense and counterclaim together with list of witnesses, witness statements on oath, list of documents and copies of the documents. In response, the claimant filed two processes: witness statement on oath; and statement on oath in reply and defence to counterclaim. The defendant then filed its reply to the defence to counterclaim. At the re-trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C4. The defendant on its part called two witnesses: Daniel Mayer, a Chartered Accountant (South Africa Registered), who testified as DW1; and Solomon Tolofari, a retired Chief Superintendent of Police (CSP) and Chief Security Officer of the defendant, who testified as DW2. The defendant’s frontloaed documents were tendered through DW1 as Exhibits D1 to D27. At the close of the re-trial, parties starting with the defendant were asked to file and serve their respective final written addresses. The defendant’s final written address was filed on 25th June 2018, while the claimant’s was filed on 27th August 2018. The defendant’s reply on points of law was filed on 24th October 2018.
THE CASE OF THE CLAIMANT
4. The crux of the claimant’s claim is that he was dismissed on allegations of having committed forgery and “siphoning of company funds”, which are criminal offences, without being given an opportunity to defend himself. To that extent, his dismissal was null and void. The Court of Appeal in its judgment of 17 May 2016 held that this narrow issue of denial of fair hearing to the claimant was not resolved by the first trial Judge and, therefore, remitted the point to this Court for determination. To the claimant, he was employed by the defendant vide a letter dated the 20th day of March 2009 as Manager, Information Technology for a probationary period of six months. His employment was confirmed by the defendant effective 30 October 2009 vide the defendant’s letter dated 02 November 2009. (The defendant disputes the existence of this letter.) The claimant continued that he was performing his duty creditably well and this was reflected in among other facts that he was awarded an enhanced remuneration package and promoted to a new grade level from level 5(I). That this was the situation until 16th August 2011 when he was summoned to the office of the Chief Security Officer of the defendant where he was informed that he had been ordered to be arrested on the instructions of the Managing Director of the defendant and be handed over to the Police. That he was subsequently taken to the Maroko Police Station where he was granted bail by the Police on 18th August 2011. That on same 18th August 2011, he received a letter from the defendant in which he was informed that he had been dismissed from the defendant’s company for gross misconduct. It is thus the claimant’s case that he was never confronted with any of the allegations which form the basis of the gross misconduct. The claimant denied that he ever committed any of the acts which the defendant alleged him to have committed.
THE CASE OF THE DEFENDANT
5. To the defendant, the claimant was once its staff. The defendant, however, denies that a confirmation letter was written to the claimant on 2nd November 2009; rather, the confirmation letter which was issued by it to the claimant is dated and issued on 11th January 2010 (Exhibit D2). That contrary to the case which the claimant attempted to foster, namely, that he was performing creditably in his duty, the claimant was actually issued a query and that a disciplinary hearing was convened concerning the claimant to which he was summoned and this was as a result of his failure to exercise due care and diligence in his department. The defendant in consequence of this wrote a “First and Final Warning letter” to the claimant in which he was told in clear terms that the sort of dereliction of duty that was highlighted in the disciplinary hearing would not be tolerated from him again (Exhibit D4). That the claimant’s appraisal score also dropped from 75.5% to 59.7% (Exhibit D4).
6. The defendant went on that it was discovered that series of quotations for services and supplies, which the claimant presented as having emanated from the defendant’s suppliers and contractors, originated and were actually generated from the claimant’s official laptop computer that was provided for the claimant by the defendant. The specific quotations which the defendant mentioned in this respect are (i) the quotation for Free Maintenance battery dated 19th October 2010, which the claimant put forward as having emanated from PI Consulting; (ii) quotation for the supply of Dell Optiplex 160 dated 7th September 2010, which the claimant put forward as having been issued by Torquay Global Solutions Limited; and (iii) quotation for a desktop-computer (DELL OPTIPLEX GX 160) dated 8th September 2010, which the claimant put forward as having been issued by The Source Computer Limited. The defendant continued that it was able to establish that the quotations in question were generated from the laptop-computer of the claimant from the various computer prints out which identified the computer on which the documents were prepared and generated to be the same laptop-computer (the claimant’s official laptop while he was in the employ of the defendant) from which the document entitled “Information Technology Disaster Recovery Plan” dated May 2010 was generated and printed out and not actually from the various companies namely PI Consulting Services Limited, Torquay Global Solutions Limited and The Source Computer Limited which the claimant alleged them to have been issued (Exhibits D7 to D26). That after sundry quotations were obtained by it i.e. the defendant, and based on the recommendation by the claimant, the defendant eventually awarded a contract for the supply and installation of IT framework accessories for its new offices to one Messrs Dunnibel Ventures Nigeria Limited via a contract signed by the letter on 30th June 2011 at the total cost of N7,233,975 and that, based on subsequent reports received by the defendant, the defendant has now established that the claimant secretly profited from the amounts paid to Messrs Dunnibel in an amount corresponding to approximately 25% of the aforesaid value of the contract. That the contract was ultimately awarded to Messrs Dunnibel Ventures Nigeria Limited after the latter had paid the requested bribe to the claimant.
7. To the defendant then, the investigation it conducted showed that four of the quotations from two IT supply firms were forged in that the relevant firms were not known or in existence at the addresses stated on the invoices. That the investigation also established that enquiries at one of the IT supply firms revealed that the prices quoted on one of the quotations were inflated prices since the defendant was able to obtain a lower quote for the same products just by a casual visit to and enquiry from the same firm. That another of the quotations could not be investigated as there was neither an address nor phone number on the invoice, thus causing astonishment as to why such an invoice should have been accepted by the claimant and submitted for processing by the defendant.
8. The defendant’s case, therefore, is that not being a Court or a Tribunal, it was not obliged to accord the claimant a fair hearing before his dismissal. Secondly, that assuming without conceding that the defendant was obliged to have accorded the claimant a fair hearing before his dismissal, the defendant actually accorded the claimant a fair hearing before his dismissal. And thirdly, assuming further without conceding that the dismissal in question is unlawful, the only remedy available to the claimant is his salary which he would have earned during the period of notice to which he is entitled for the proper termination of the contract.
THE SUBMISSIONS OF THE DEFENDANT
9. The defendant submitted three issues for determination, namely:
(1) Whether the defendant ought to have accorded the claimant a fair hearing before his dismissal.
(2) Assuming that the defendant ought to have accorded the claimant a fair hearing before his dismissal, whether the defendant gave the claimant a fair hearing before his dismissal.
(3) Assuming further that the defendant did not give the claimant a fair hearing before his dismissal, whether the claimant is entitled to the reliefs being claimed by him before this Court.
10. On issue (1), the defendant submitted that the law is that an employer is not obliged to accord its employee any right of fair hearing before such an employer exercises its right of dismissal of such employee as the obligation to observe the rule of fair hearing is only applicable to judicial bodies, citing Emeka v. Okoroafor [2017] 11 NWLR (Pt. 1577) 410 SC at 500, which relying on Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) at 262, Ekunola relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641, Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 and Alhaji Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR (Pt. 457) 632 at 644, held that “breach of a fundamental right under section 36(1) of the Constitution arises only when it is charged against a court or tribunal established by law”. That the implication of this is that there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing is that of a non-judicial body. Accordingly, that the defendant was not obliged to have accorded the claimant any right of fair hearing before his dismissal.
11. For issue (2), the defendant submitted that indeed it accorded the claimant a fair hearing before his dismissal. That the defendant did what is expected of it before dismissing the claimant from its employment and the claimant was given a fair hearing. In fact, that the defendant could not have acted otherwise than it has acted in this case. This is due to the fact that after the defendant had satisfied itself that the claimant has committed the acts which the defendant knew are acts which the Police are statutorily clothed with the power to investigate and prosecute, it referred the matter to the police and handed the claimant to the Police. In fact, that the claimant in his evidence said he was taken to the Maroko Police station where he made written statement on 17th August 2011 and he was served with a letter dismissing him on 18th day of August 2011. This can only mean that the defendant was not satisfied with the explanation which the claimant offered in his statement regarding the events surrounding his dismissal. That the major plank of the claimant’s case appears to be that he was never accorded a fair hearing before the letter of dismissal was issued. That this is far from the truth as, on the available evidence, the claimant was accorded a fair hearing. That assuming that he was not accorded a fair hearing, it is the law that the question of fair hearing does not arise in contract of employment not governed or regulated by statute, citing Alhaji Yusuf v. Union Bank of Nigeria Ltd (supra) 632 at 644. In the light of the foregoing, that the defendant could not have started any proceedings with respect to the allegations but to have referred the matter to the relevant department of the state.
12. Issue (3) is whether the claimant is entitled to the reliefs he claims assuming he is entitled to fair hearing and it was not given to him. The defendant addressed this issue in terms of the reliefs claimed. For relief (i) i.e. a declaration that the purported dismissal of the claimant is wrongful, unlawful, null, void and of no effect whatsoever, the defendant submitted that in examining the question of whether this relief is available, it has to be realized that the contract between the claimant and the defendant is that of master and servant. That in a relationship of master and servant, the party who alleges that the contract has been unlawfully terminated, just as the claimant alleges in this case, bears the onus of establishing the terms of the contract by first putting forward the terms of his employment, referring to Anaja v. UBA Plc [2011] 15 NWLR (Pt. 1270) 377 at 394. That in the letter of employment of the claimant, one of the terms of employment is that he can be dismissed on the ground of misconduct. That it is the law that assuming that the case of misconduct has not been made out a declaration that the dismissal “is wrongful, unlawful, null, void and of no effect whatsoever” will not be made by this Court as the dismissal has put to an end the employment of the claimant with the defendant, relying on Co-operative and Commerce Bank (Nig.) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114 at 137-138. That it thus clear that relief (i) of the claimant is totally untenable.
13. The defendant then took reliefs (ii), (iii), (iv) and (v) together given that they are similar. That these four reliefs are based on a total misunderstanding of the law, which is that once an employee has been dismissed whether lawfully or otherwise, in a purely master-servant relationship, the dismissal has brought the relationship to an end. The parties cannot pretend that the relationship continued because it was wrongfully brought to an end, referring to Texaco Nigeria Plc v. Kehinde [2001] 6 NWLR (Pt. 708) 224 at 242, Jirgbagh v. UBN Plc [2001] 2 NWLR (Pt. 696) 11 at 23-24, Co-operative and Commerce Bank (Nig.) Ltd v. Okonkwo (supra), and Ezekwere v. Golden Guinea Brew Ltd [2000] 8 NWLR (Pt. 670) 648 at 658, which explained the rational of the rule.
14. That assuming, without conceding, that it has been proved during trial that the claimant has been wrongfully dismissed by the defendant, all the claimant will be entitled to is the amount he would have earned during the period of notice which ought to have been given to him before his employment was terminated, referring to Alanifimihan v. Nova Lay-Tech. Ltd NWLR (Pt. 547) 608 at 623. That the manner in which the contract was brought to an end or that the employee, as a result of the dismissal, became anxious or disturbed, is also not a relevant factor in the determination of the damages to be awarded a master and servant relationship such as this. Neither should the Court take into consideration any sentiments or non-legal consideration in awarding damages to the employee in this wise, referring to NAB Ltd v. Shaibu 4 NWLR (Pt. 186) 450 at 471 and Shena Security Co Ltd v. Afropak (Nig) Ltd [2008] 18 NWLR (Pt. 1118) 77 at 108.
15. The defendant continued that it must point out that in the recent times this Court (the National Industrial Court of Nigeria) has assumed that it has a new found power to award damages to an aggrieved employee as it pleases based on what it has styled “international best practice”. That the Court of Appeal has in recent cases disavowed and disclaimed the existence of such powers in a series of cases:
• Coca-Cola Nigeria Ltd & 2 ors v. Mrs.Titilayo Akisanya unreported Appeal Number CA/L/661/2016, which was decided by the Lagos Division of the Court of Appeal on 17th of November 2017, held, despite finding that no fair hearing was given, that this Court fell into error in awarding the sum of N17,368,468.00 as damages in favour of the respondent and reduced the damages to which she was entitled to the sum of N1,447,373.33 which was her salary for one month since she would have been entitled to one month’s notice for her salary to be properly terminated.
• Batelitwin Global Services Ltd v. Mr John Muir unreported Appeal Number CA/L/566/2013 which was decided on 3rd November 2016 by the Lagos Division of the Court of Appeal. here after finding that the termination was wrongful as the respondent was entitled to a month’s notice in writing of termination of his employment and that the only remedy available to the respondent is damages in the amount equivalent to the period of notice that he ought to be given as stipulated by the contract which in the instant case, is one month’s salary, The court of Appeal granted only USD 24,750, instead of USD193,050, being one month’s salary in lieu of notice.
• That in fact the Court of Appeal further reiterated the point that this Court lacks the power to award any damages to an employee who claims to have been unlawfully terminated or dismissed other than as laid down in such employee’s contract of employment in the case of Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA) generally.
16. To the defendant, in this case, should the Court find that the claimant’s employment has been wrongfully terminated, the amount of damages to which he is entitled would be a sum which is equivalent to his one month’s salary in accordance with the second paragraph of his letter of employment, which he has put forward as setting out the terms of his employment with the defendant. That even if the letter of employment does not contain the length of notice to which the claimant is entitled, the length of notice to which he would have been entitled to is two weeks since the claimant worked with the defendant for less than five years given section 11(1)(c) of the Labour Act Cap L1 LFN 2004. In conclusion, the defendant urged the Court to dismiss the case of the claimant.
THE SUBMISSIONS OF THE CLAIMANT
17. The claimant in paragraph 2.1 of his final written address stated that he “submits that four issues have been distilled for the determination of this Honourable Court”. He, however, proceeded to submit only one issue i.e. “Whether in view of the criminal allegations of fraud and forgery made against the Claimant, the Claimant was lawfully and validly dismissed by the Defendant”. To the claimant, it is a rather common place and well settled principle of law that where an employer wishes to dismiss an employee for gross misconduct or allegations of crime, the principles of natural justice must apply such that the employee must first be confronted with the allegations, given adequate time to respond to the allegations, and given a fair and dispassionate hearing before he/she is dismissed, citing Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR (Pt. 457) 632 at 644 and Kotoye v. CBN [1989] 1 NWLR (Pt. 98) at 448.
18. To the claimant, the letter of dismissal issued by the defendant to him is dated 17 August 2011 and is tendered as Exhibit C4. The body of the letter reads as follows:
Following an investigation into various procurements made by you as the Manager IT Department, we have uncovered evidence that indicates that you have committed a series of frauds in the Company.
You are hereby summarily dismissed, with effect from today 17th August 2011, from the employment of Lekki Company Limited (“LCC”), for gross misconduct in forgery of procurement documents and siphoning of the company’s funds.
The clamant’s position is that he has maintained in paragraphs 11, 12, 13 and 14 of his amended statement of facts dated 19 December 2011 and the corresponding paragraphs 11, 12, 13 and 14 of his witness statement on oath dated 09 February 2012 that he was never challenged with the allegations or given a chance to be heard. That this specific averment by him was not denied or responded to by the defendant in its defence and neither was he cross-examined on this point or controverted in any way with evidence during the trial. As a matter of fact there is no averment whatsoever to the effect that the claimant was shown the allegations and evidence against him, that he was given an opportunity to respond and that a disciplinary hearing was held before he was dismissed. That it is the law that mere denial, evasive responses or general traverse without specific responses and supporting evidence amounts to no denial and is tantamount to an admission, citing Okwaranyia v. Eke [1996] 3 NWLR (Pt. 436) 335 at 361.
19. More importantly, that the defendant’s witnesses admitted under cross-examination that the claimant was never challenged with the allegations and, therefore, was not given an opportunity to defend himself. That DW1, Mr Daniel Meyer, was asked under cross-examination if the claimant was ever challenged with the evidence before his dismissal and he responded as follows: “He was on final warning when the offence was committed, so management took a decision to terminate his employment”. That DW2 when asked the same question prevaricated and refused to answer the simple question feigning ignorance of any disciplinary hearing as it was not within the scope of his work. When prodded further, DW2 admitted that he did not testify in any disciplinary hearing against the claimant and that if there was any such disciplinary hearing he would have been aware of it and called to testify. The claimant thus submitted that on the unchallenged and uncontradicted evidence of the claimant, the claimant was not at anytime challenged with the evidence or given an opportunity to defend himself before he was summarily dismissed for forgery and siphoning company funds. That this is a breach of the time honoured principles of natural justice and equity and, therefore, immediately renders his dismissal null and void as stated unequivocally by the Supreme Court in Kotoye v. CBN (supra); and SPDC Ltd v. Olarewaju [2008] 18 NWLR (Pt. 1118) 1 at 22, which endorsed the conclusion of the learned trial Judge that the rules of natural justice were breached in the whole process and the respondent’s dismissal based thereon cannot stand, thus holding that the dismissal was wrongful, null and void and was rightly so declared by the two courts below.
20. To the claimant, it is clear beyond disputation that he was not at all heard before he was dismissed. That DW1 confirmed it that it was a management decision since the claimant was on final warning and the facts were clear. As a matter of fact, that the whole process of investigation up to dismissal was all done while infringing all known principles of natural justice and fairness. The purported search of the claimant’s computer where documents were allegedly forged was done by DW1 along with some unnamed experts in the absence of the claimant. Surely, that it cannot be said that the whole investigation process was fair and just. That a similar scenario occurred in SPDC Ltd v. Olarewaju (supra) where a computer expert examined a computer of an accused staff in the accuser’s office without the accused being present. That the Supreme Court held that the risk of miscarriage of justice was not thereby eliminated; as such, the rules of natural justice were breached in the whole process and the respondent’s dismissal based thereon could not stand. The claimant thus contended that once the question of fair hearing has been determined to have been breached, it becomes irrelevant whether the claimant actually committed the misconduct complained of or not as the failure to observe the principles of natural justice and fairness voids the entire process, citing Kotoye v. CBN (supra) and urging the Court to so hold.
21. The defendant had argued that the law is that an employer is not obliged to accord its employee any right of fair hearing before such an employer exercises its right of dismissal of such employee as the obligation to observe the rule of fair hearing is only applicable to judicial bodies; and that whatever doubt there might have been on this issue was removed recently by the Supreme Court in the case of Emeka v. Okoroafor (2017) 11 NWLR (Pt.1577) 410. To the claimant, he searched the length and breadth of the said authority and found no such holding by the Supreme Court. Rather the Supreme Court was only restating the long settled point that Fundamental Rights actions are strictly for infringements of fundamental rights identified in the Constitution while the fair hearing provision captured as a specific fundamental right in the 1999 Constitution is only enforceable against a court or tribunal. Thus if a party intends to enforce the constitutional right to fair hearing under the fundamental right procedure, such right can only be entertained against a court or tribunal. That the Supreme Court proceeded to confirm that administrative bodies under the common law must still observe the principles of natural justice and fairness when Her Ladyship Kekere-Ekun, JSC, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 262) 641 at 699, held as such at page 483 i.e. that: “All administrative bodies, even though they are not courts, are bound to observe the rules of natural justice and fairness in their decisions, which affect the rights and obligations of citizens”. That the present suit is not a fundamental rights suit and does not seek the enforcement of section 36 of the 1999 Constitution. Rather the claimant is relying on the common law principles of natural justice and fairness.
22. Similarly, the defendant’s counsel has argued in paragraph 8.1 page 15 of his closing address as follows:
In fact the claimant in his evidence said he was taken to the Maroko police station where he made written statement on 17th day of August 2011. This can only mean that the defendant was not satisfied with the explanation which the claimant offered in his statement regarding the events surrounding his dismissal.
To the claimant, the defendant is quite clearly at great pains to justify its clearly unjustifiable actions such that its counsel is now giving evidence in the final address, referring to the statement of defence and counterclaim dated 26 January 2012 where there is no averment contained therein to the effect that the defendant got a copy of the statement made to the Police on 16th August 2011 by the claimant, studied same on the same day, held a hearing on the same day and issued a dismissal letter dated the same 17 August 2011. That this is simply preposterous. In the same vein, that there is no such evidence in the witness statement’s on oath deposed to by the witnesses for the defendant. That it is again a pedestrian point of law that counsel’s final address cannot be a substitute for evidence, referring to Nigeria Airways Ltd v. Okutubo [2002] 15 NWLR (Pt. 790) 376.
23. Before concluding on this issue, the claimant responded to a disturbing and nonexistent point of law persistently raised by the defendant’s counsel which is not supported by any known judicial authority. That counsel submitted in paragraph 8.2 page 15 of his written address as follows:
The major plank of the claimant’s case appears to be that he was never accorded a fair hearing before the letter of dismissal was issued, this as we have argued is far from the truth as on the available evidence, the claimant was accorded a fair hearing. Assuming for the purpose of arguments that he was not accorded a fair hearing, it is the law that the question of fair hearing does not arise in contract of employment not governed or regulated by statute.
To the claimant, while he is still astounded by the submission of what the defendant calls the position of the law, he is not surprised that the defendant has not been able to provide a quotation of the judgment of any court where this purported holding was made. Simply put, that there is no such law or authority in existence, urging the Court to completely discountenance same.
24. Finally under its issue (3) the defendant urged the Court not to grant the reliefs claimed by the claimant whether under common law or under statutory provisions. That the defendant has relied on several unreported Court of Appeal decisions which reportedly reduced previous awards of damages made by the National Industrial Court. However, that the defendant did not provide the points of law argued in those cases and which were considered by the Court of Appeal. To the claimant, this Court is strengthened by judicial authorities emanating from the Supreme Court of Nigeria such as Nigerian Produce Marketing Board v. Adewunmi [1972] NSCC 662 to award the claimant all his salaries and entitlements till the date of judgment because his summary dismissal for gross misconduct in the forgery of procurement documents and siphoning of company funds is null and void and of no effect. That this is quite different from wrongful termination or dismissal without reason whereby the employee would only be entitled to the length of notice or payment in lieu. That it is a well settled principle that in cases of wrongful dismissal, the measure of damages is the amount the claimant would have earned had the employment continued according to the contract. This is because the measure of damages in actions for wrongful dismissal is founded on the law of contract, and is aimed at putting the injured party at the position he would have been but for the breach. Thus in Nigerian Produce Marketing Board v. Adewunmi [1972] NSCC 662 which was a claim for damages for wrongful dismissal, the Supreme Court per Fatal-Williams J.S.C held that: “in a claim for wrongful dismissal, the measure of damages is prima facie the amount that the Plaintiff would have earned had the employment continued according to contract”. That this principle has been upheld by the Supreme Court in several other cases such as Shell Petroleum Development Corporation v. Olarenwaju (supra), which is factually on all fours as the present case.
25. In brief, the facts of Olarenwaju were that the respondent was at all material times, a confirmed senior career and pensionable employee of the appellant (his employment was in no way tinged with statutory flavor) and had been in the employment of the appellant for nearly 24 years during which he earned several promotions and commendations for outstanding performance. In 1998, the respondent was accused of circulating a threat letter amongst employees of the appellant. Consequently, the appellant caused the respondent to be arrested and detained by the Police and also conducted an investigation behind the back of the respondent, which culminated in the dismissal of the respondent from the appellant’s employment. The respondent being aggrieved sued the appellant at the High Court and sought the following two reliefs which were granted by the trial court and eventually became the focal points of appeals to the Court of Appeal and Supreme Court:
(v) AN ORDER commanding the defendant to pay the salaries, allowances, bonuses, and entitlements of the plaintiff from 24th April, 1998 up to the date of judgment or until the defendant finally re-instates the plaintiff into its services.
(vi) AN ORDER commanding the defendant to permit or allow the plaintiff to collect all his personal belongings left in his office without any let hindrance or alternatively, AN ORDER commanding the defendant to pay for the values of the said personal belongings.
26. That the Court of Appeal upheld the decision of the trial Judge in granting the above two reliefs and Tabai JSC in his Lead Judgment upheld same in the following words: “in these circumstances, I fully endorse the conclusion of the learned trial Judge that the rules of natural justice were breached in the whole process and the respondent’s dismissal based thereon cannot stand. I hold that the dismissal was wrongful, null and void and was rightly so declared by the two courts below”. That Mohammed JSC in his concurring judgment at page 27 of the Report was even more direct when His Lordship held as follows:
The main case of the respondent as the plaintiff at the trial court against appellant which was the employer of the respondent, was that the dismissal of the respondent from the employment of the appellant was unlawful/illegal/unconstitutional/null and void and of no effect whatsoever. The finding of the trial court that the dismissal of the respondent was wrongful was affirmed by the court below. It is trite that in cases of wrongful dismissal such as the present case, the measure of damages is prima facie the amount the plaintiff could have earned had the employment continued according to the contract of employment, subject to the deduction in respect of amount accruing from any other employment which the plaintiff in minimizing damages either obtained or should reasonably have obtained. See Nigeria Produce Marketing Board v. Adewunmi (1972) 11 SC 111; W.N.D.C v. Abimbola (1966) N.M.L.R 381 and Imoloame v. W.A.E.C (1992) 9 NWLR (Pt.266) 303 at 19. Reliefs V and VI granted to respondent by the trial court and affirmed by the Court below are quite in order.
27. To the claimant, reliefs (iv) and (v) in the present suit are seeking the same reliefs as reliefs (v) in SPDC v. Olarewaju (supra) and as the Learned Lord Justice said the reliefs “are quite in order”. The claimant then urged the Court to grant the reliefs sought as the facts in this case are on all fours with SPDC v. Olarewaju (supra). That the Court is further empowered by section 19 of the National Industrial Court (NIC) Act 2006 to make any order as to compensation or damages in any circumstances contemplated by the NIC Act 2006. That insofar as this statutory provision has not been struck down by any Court of law for being unconstitutional it remains the law and binding on the Court. That the justice of this case demands that this Court awards the reliefs sought by the claimant just as the Supreme Court did in SPDC v. Olarewaju (supra), urging the Court to so hold.
28. Finally, the claimant urged the Court to discountenance all the exhibits tendered by the defendant as they were simply dumped on the Court and not demonstrated to the Court by the defence witnesses, citing Gov., Kwara v. Eyitayo [1997] 2 NWLR (Pt. 485) 118 at 128. Similarly, that Exhibits D6, D7, D8, D9, D10, D11, D12, D13, D14, D15, D23, and D24 are all unsigned documents which are worthless and cannot be relied upon, citing Fasehun v. AG Federation [2006] 6 NWLR (Pt. 975) at 157. Most importantly, that all the issues and allegations raised by the defendant in their statement of defence are caught by the principle of issue estoppel having been litigated word for word in their counterclaim, which was dismissed in the first trial and also by the Court of Appeal on appeal as being “pure speculation and puerile deduction which unfortunately is not allowed in law”, referring to page 48 of the judgment of the Court of Appeal delivered on 17 May 2016. On issue estoppel, the claimant referred to Igbeke v. Okadigbo [2013] 12 NWLR (Pt. 1368) 225 SC at 244-245. Based on all the foregoing, the claimant urged the Court to enter judgment in his favour and grant all the reliefs sought.
THE DEFENDANT’S REPLY ON POINTS OF LAW
29. In replying on points of law, the defendant merely rehashed its argument as to fair hearing and the fact that the measure of damages is what the claimant would be entitled to during the period of notice, assuming that is that the claimant was not afforded fair hearing by the defendant, referring his earlier cited cases like Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA). even in reacting to the cases cited by the claimant, the defendant simply stated that the law as he put it has not changed, citing Oforishe v. NGC Ltd [2018] 2 NWLR (Pt. 1602) 35. That the proposition that an employee who has established the fact of his unlawful dismissal is entitled to more than what he would have earned during the period of notice is contrary to the ratios in Eze v. Spring Bank Plc [2011] 18 NWLR (Pt. 1278) and Oforishe v. NGC Ltd (supra). Also that the position of the law is that where there are two conflicting judgments of the Supreme Court, the lower court is bound by the latter of the two decisions and must follow and apply it, citing Osakwe v. Federal College of Education Asaba [2010] 10 NWLR (Pt. 1201) 1 at 34. In this wise, that since SPDC Ltd v. O1arewaju (decided on 19th December 2008) is earlier in time than Eze v. Spring Bank Plc (decided on 9th December 2011), and Oforishe v. N.G.C. Ltd (decided on 23rd June 2017), the statement of law in Eze v. Spring Bank Plc and Oforishe v. NGC Ltd represents the law on the point.
30. The defendant went on that in the very recent decision of Mr Emmanuel Onamini Odibo v. First Bank of Nigeria Plc unreported Appeal No. CA/L/240/2011 decided on 5th October 2018, the Court of Appeal was confronted with the argument that an employee who has successfully proved that he has been unlawfully dismissed is entitled to be paid his salaries and other entitlements till the day of judgment. That cases like African Continental Bank v. Ewarami [1978] 11 NSCC 269 and SPDC v. Olanrewaju (supra) were cited to the Court of Appeal. That the Court of Appeal followed Oforishe v. NGC Ltd (supra) and Dudusola v. Nigeria Gas Company Limited [2013] 10 NWLR (Pt. 1363) 423 at 438 and rejected the arguments. In any event that this Court had previously applied Oak Pensions Ltd. v. Olayinka, citing Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014 decided on 16th February 2018. In conclusion, the defendant submitted that in the event that this Court comes to the conclusion that the claimant herein was not accorded a fair hearing before his employment was dismissal, he is only entitled to be paid the salaries which he would have earned during the period of notice to which he would have been entitled to.
COURT’S DECISION
31. After due consideration of the processes and submissions of the parties, I start off with the despicable conduct of Mr M. B. Ganiyu, counsel for the defendant, a conduct that is most unprofessional and so must be deprecated. In paragraph 10.27 of his written address for the defendant, he submitted as follows:
It will also be remembered that in any case the claimant under cross-examination admitted to being a director and a shareholder of the company known as TYL Technologies Ltd and the Particulars of Directors (Form C07) and Particulars of shareholders (Form C02) which documents show clearly that the claimant owns the said company by an overwhelming majority. This Honourable Court decided not to admit the documents and in fact decided to expunge them from its record on the grounds that they were neither frontloaded nor pleaded. We submit once more that in so far as the documents were tendered during the cross-examination of the claimant and they were used to test the veracity of his testimony, the documents are admissible and they ought to have been admitted. We rely once more on the case of Dunalin Ltd. v. BGL PLC [2016] 18 NWLR Part 1544. We therefore urge your Lordship to admit the documents and take them into consideration in writing the judgment of this Honourable Court in this case since a document which has been erroneously excluded during trial can be readmitted and can be taken into consideration in writing judgment in the case. We refer to Buhari v. I.N.E.C. [2009] All FWLR Part 459 page 419 at page 543D-F.
32. At the re-trial of this case on 15th February 2018, when the claimant as CW testified, Mr Ganiyu asked the claimant under cross-examination whether he knows T.Y.L. Technologies Ltd. The claimant answered in the affirmative. Mr Ganiyu then sought to show the claimant Forms CAC 2 and CAC 7. At this point, counsel for the claimant objected on the ground that there are no pleadings in that regard and the issue has no relationship with the issue of fair hearing, which is what the Court of Appeal referred to this Court. I asked Mr Ganiyu to show which paragraphs of the pleadings deal with the TYL company for which he seeks to tender the documents. He submitted thus:
I do not need to plead anything to tender the said documents. I am testing the veracity of the witness. I refer to Dunalin Ltd v. BJL Plc [2016] 18 NWLR (Pt. 1544) 262 CA at 342-343 and Oba Sule Odu-Alabe v. Alhaji Suraju Olugunebi unreported Appeal No. CA/L/87M/2012 decided on 7th July 2015 as well as Leyilu v. Leyilu [1980] 6 CA (Pt. 1) 116 at 125.
Counsel to the claimant reacted by referring to sections 211 and 224(1) of the Evidence Act 2011 stressing his initial grounds of objection. My Ganiyu replied thus: “We are only tendering the document to test the accuracy of the evidence of the claimant in terms of his evidence today that he is not doing anything”.
33. In a considered bench ruling, I ruled thus:
The law is that even under cross-examination questions cannot be asked on matters not pleaded. See the Supreme Court decision in Edward Okwejiminor v. G. Gbakeji and NBC Plc 33.2 NSCQR 863. I asked defence counsel the paragraphs of the pleadings upon which he relies on. His answer is that he did not need to plead anything.
The application to tender Forms CAC 2 and CAC 7 and their accompanying receipts is hereby rejected. The objection of the claimant is accordingly sustained. All evidence as to the TYL company are accordingly expunged.
Ruling is entered accordingly.
34. Now what should Mr Ganiyu do if he is unsatisfied with this ruling? It is to go on appeal. If he cannot go on appeal immediately because this is an interlocutory matter, he is expected to await the judgment on merit and then if there is an appeal include the ruling of this Court of 15th February 2018. He did not do this. Instead, he raised the matter again in his final written address asking the Court to admit the documents and take them into consideration in writing the judgment. Hear him: “the documents are admissible and they ought to have been admitted”. What a way to be cheeky, impudent, insolent, impertinent, cocky, brazen, disrespectful, insubordinate, bumptious, brash, brassy, rude, impolite, ill-mannered, discourteous, ill-bred, saucy, lippy, sassy and smart-alecky. I often wonder where legal practice is heading to. A counsel knows what he can do under the law, yet choses to be an irritant. Does counsel understand that the ruling was a considered one and so can only be set aside on appeal?
35. The choice of language of Mr Ganiyu can also be seen in his submissions on his issue (3). Hear him in paragraph 10.13 of his final written address: “One must point out that in the recent times this honourable Court (the Industrial Court) has assumed that it has a new found power to award damages to an aggrieved employee as it pleases based on what the Industrial Court has styled “international best practice”. Mr Ganiyu may not know, the Industrial Court did not style “international best practice”; the National Assembly did, first under section 7(6) of the National Industrial Court (NIC) Act 2006 (“The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact”), and second, under section 254C(1)(f) where the jurisdiction of the Industrial Court extends to civil causes and matters “relating to or concerned with unfair labour practice or international best practices in labour, employment and industrial relation matters”. Accordingly, I only need to state that in his choice of language and conduct, Mr Ganiyu is discourteous (indeed disrespectful) and unprofessional.
36. All of this aside, Mr Ganiyu made it a point to also bring up issues that the Court of Appeal had disposed of, almost like telling this Court to retry those issues and sit on appeal over what the Court of Appeal had already ruled on. Like the claimant pointed out in his submission, all the issues and allegations raised by the defendant in their statement of defence are caught by the principle of issue estoppel having been litigated word for word in their counterclaim, which was dismissed in the first trial and also by the Court of Appeal on appeal as being “pure speculation and puerile deduction which unfortunately is not allowed in law”, referring to page 48 of the judgment of the Court of Appeal delivered on 17 May 2016. This is how His Lordship Oseji, JCA put it at pages 48 to 49 of the judgment:
In other words from the story as told by the cross-Appellant at the lower court and confirmed in the cross-Appellant’s brief of argument, the allegation about the cross-Respondent receiving the sum of N1,808,493.75 as 25% of the contract awarded to DUNNIBEL VENTURES (NIG) LTD is not supported by any fact but based on mere deduction and speculations arising from the suspicion that having unsuccessfully demanded for the same percentage as kickback from PROFICIENT TECHNOLOGIES, the cross-Respondent must have succeeded in receiving the same amount from DUNNIBEL VENTURES. The cross-Appellant did not provide any proof before the lower court to show that any amount was paid as bribe to the cross-Respondent. Therefore to base the counter claim solely on it borders on pure speculation and puerile deduction which unfortunately is not allowed in law.
A suit is speculative if it is based on speculation, that is to say, not supported by facts or very low facts but very high on guesses. A court of law is not established to adjudicate on guesses but on facts and any suit based on such act of speculation deserves nothing but a dismissal. See PLATEAU STATE VS A.G FEDERATION (2006) SCNJ 1.
The courts do not speculate on possibilities, they act [on] actualities. Courts do not speculate or conjecture because it is dangerous to do so in the absence of admissible evidence. See EJEZIE VS ANUWA (2008) 4 SCNJ 113; ODONIJI VS OYELEKE (2001) 4 SCM 127; ABRAHAM VS THE STATE (1986) 1 NSCC 230; IGABELE VS THE STATE (2006) 2 SCNJ 124.
37. Now a number of points arise here. First, the issues for which the defendant as appellant relied on for its counterclaim, were the same issues the defendant relied on in justifying the dismissal of the claimant. So if the Court of Appeal found these issues to be speculative and conjectures, why is the defendant raising them all over in the instant retrial? Since an employer who dismisses an employee and gives a reason must justify the reason, this means that dismissing the claimant as per Exhibit C4 dated 17th August 2011 “with effect from today 17 the August 2011…for gross misconduct in forgery of procurement documents and siphoning of the company’s funds” has not been justified by the defendant. Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC) held that “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 preferred 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”. On this ground alone, the dismissal of the claimant is wrongful; and I so find and hold.
38. The claimant submitted that Exhibits D6, D7, D8, D9, D10, D11, D12, D13, D14, D15, D23, and D24 are all unsigned documents which are worthless and cannot be relied upon. There was no reaction whatsoever from the defendant on this submission. I took a closer look at the said exhibits. Exhibit D6 is some sort of disciplinary hearing report that is not dated, is not signed and its source is unknown. Exhibit D7 is an information technology disaster recovery plan said to be: “Draft updated with HODs’ comments May 2010”. Exhibits D8, D10, D12 and D14 are computer printouts that make no sense. Exhibit D9 is a letter that is not signed. Exhibit D11 is a quotation that is not signed. Exhibit D13 is also a quotation that is it signed. Exhibit D15, a quotation of several sheets too, is not signed. Exhibits D24 and D25 are two sets of short form of contract that are not signed. I agree with the claimant that not being signed and/or dated, these exhibits have no evidential value. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47, Sarai v. Haruna [2008] 23 WRN 130, Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). These exhibits are accordingly discountenanced for purposes of this judgment. I so hold. In any event, I also agree with the claimant that the defendant made little or no attempt to connect the exhibits it tendered to their case. I so find and hold.
38. The second point that arises from His Lordship Oseji, JCA’s holding quoted earlier is that in it the Court of Appeal complained and upheld the fact that the defendant was speculative and conjectured. A reading of Mr Ganiyu’s submissions as to the fact that the defendant gave the claimant fair hearing is nothing but speculation and conjecture. In paragraphs 8.0 and 8.1 of his written address, Mr Ganiyu submitted that indeed the defendant accorded the claimant a fair hearing before his dismissal. That the defendant did what is expected of it before dismissing the claimant from its employment and the claimant was given a fair hearing. What is the proof relied on by Mr Ganiyu? Hear him at paragraph 8.1:
In fact, the defendant could not have acted otherwise than it has acted in this case. This is due to the fact that after the defendant had satisfied itself that the claimant has committed the acts which the defendant knew are acts which the Police are statutorily clothed with the power to investigate and prosecute, it referred the matter to the police and handed the claimant to the Police. In fact the claimant in his evidence said he was taken to the Maroko Police station where he made written statement on 17th August 2011 and he was served with a letter dismissing him on 18th day of August 2011. This can only mean that the defendant was not satisfied with the explanation which the claimant offered in his statement regarding the events surrounding his dismissal (the emphasis is this Court’s).
Take note of the italicized portions of Mr Ganiyu’s submission. That the claimant made a statement to the Police on 17th August 2011 and the defendant dismissed him on 18th August 2011, Mr Ganiyu concluded that “this can only mean that the defendant was not satisfied with the explanation which the claimant offered in his statement regarding the events surrounding his dismissal”. This is the proof of fair hearing that Mr Ganiyu is advancing to this Court. If this is not speculation and conjecture, I wonder what will be.
39. The key point that necessitated the instant retrial is the fact that the issue of fair hearing brought up by the claimant was not pronounced upon in the judgment of this Court of 25th day of April 2013. The claimant complained of lack of fair hearing in paragraphs 11 to 14 of the amended statement of facts. The defendant reacted to the claimant’s paragraphs 11, 12, 13 and 14 in its paragraphs 9 to 13 of the statement of defence. No where in the defendant’s response did the defendant specifically assert that it gave the claimant any hearing whatsoever as to the charges it leveled against the claimant. I so find and hold. In fact, the manner in which the defence counsel presented his submissions is nothing but a tacit acceptance that the defendant did not give the claimant any hearing at all.
40. The argument of the defendant that it does not even need to give the defendant a hearing is a very poor reading of the case law authorities its counsel cited. The defendant relied on Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors [2017] 14 NWLR (Pt. 1577) 410, where the Supreme Court, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body. The Supreme Court then concluded by holding that while the appellant may contend that he has not been treated fairly by the respondents, since they or the Assemblies of God Church are not a Court or Tribunal established by law, his remedy does not lie under Chapter IV of the 1999 Constitution (as amended). That the right to be a member of a particular church or the right to worship at a particular church or to be a minister of a particular church is not a right cognizable under Chapter IV of the 1999 Constitution.
41. A careful reading of Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims – audi alterem partem and nemo judex in causa sua. For the world of work, the reliance on section 36 of the 1999 Constitution is accordingly uncalled for since disciplinary processes in the workplace are composed of domestic or standing ad-hoc tribunals. Since these are not Courts or Tribunals established by law, an employer cannot be accused of not complying with section 36 of the 1999 Constitution. However, the employer may be accused of not adhering to the common law rules of natural justice. This is a ratio that can be gleaned from Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors. Thus reliance by lawyers on section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law. Under administrative law, by judicial review, the court can always set aside any disciplinary process that does not adhere to the common law rules of natural justice. This is the point the claimant struggled to make and which Mr Ganiyu said he has difficulty comprehending. In the instant case, the claimant is not claiming that he was not given fair hearing under section 36 of the 1999 Constitution; as such, Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors and the other cases the defendant relied on cannot apply to the claimant’s case. In any event, as the claimant pointed out Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors rejected reliefs 2, 3, 4, 5, 6 and 7 on the ground that they could not be entertained under the Fundamental Rights (Enforcement Procedure) Rules given that the alleged breach of appellant’s right to fair hearing was charged against a non-judicial body. The instant case is not under the Fundamental Rights (Enforcement Procedure) Rules. Additionally, that the Court of Appeal remitted this case for retrial on the issue of fair hearing means that that issue is critical to this case. If fair hearing were not critical, the Court of Appeal would have had no need whatsoever to remit the case for retrial in the first place. The Court of Appeal would simply have ruled that fair hearing was unnecessary and so that this Court did not even rule on it is immaterial. My finding is, therefore, that the defendant did not give any modicum of hearing (not to talk of fair hearing) to the claimant; and I so hold. All of this means that reliefs (i) and (iii) of the claimant are grantable and are hereby granted but only to the extent that the dismissal is wrongful and for which the dismissal letter of 17th August 2011 must be set aside. I so hold.
42. Having found that no hearing was given the claimant by the defendant, what remains is to address the reliefs that the claimant may be entitled to. The defendant argued that all that the claimant can get is payment in lieu of notice, which cannot be more than one month’s salary. I acknowledge that in Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014 decided on 16th February 2018, this Court applied Oak Pensions Ltd. v. Olayinka, where the quantum of damages for wrongful termination was held to be salary in lieu of notice. Incidentally, Coca-Cola Nigeria Ltd & 2 ors v. Mrs Titilayo Akisanya and Batelitwin Global Services Ltd v. Mr John Muir, which emanated from this Court, had the quantum of damages awarded by this Court reduced on the ground that this Court went beyond the salary in lieu of notice basis.
43. However, the instant case calls for a closer look at especially Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85 at 123 since it represents the latest of the three cases on the issue; and importantly, the cause of action upon which the cases were tried and concluded arose after the Third Alteration to the 1999 Constitution. Here, I must make the point, not out of any disrespect, but simply because the point is factual: all the Supreme Court cases cited by the defendant on the issue of quantum of damages are cases that were litigated, not from this Court but from the High Court (and High Courts have no constitutional mandate to apply international best practice in labour and industrial relations), and whose causes of action arose prior to the coming into effect of the Third Alteration to the 1999 Constitution; and section 19 of the NIC Act 2006 and the Third Alteration to the 1999 Constitution with their talk of international best practice(s) in labour and industrial relations cannot be if the National Assembly thought the old dispensation i.e. the common law orthodoxy with its rigidity and harshness as status quo should remain. This Court under section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution is empowered to apply international best practice in labour, and conventions, treaties, recommendations and protocols ratified by Nigeria. Oak Pensions Ltd v. Olayinka acknowledged that even when section 7(6) of the NIC Act 2006 declares that what amounts to good or international best practice in labour or industrial relations is a question of fact, it means that such a practice is not already codified in the conditions of service and would thus require to be pleaded and proved by the party alleging their existence.
44. In truth, taking the circumstances in which section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution were passed, circumstances that did not just bring this Court fully within the structure of the Nigerian Judiciary but introduced a new labour jurisprudence in the country, we can understand Oak Pensions Ltd v. Olayinka as not being against the spirit and letter of these provisions as well as the intendment of same, which is that the provisions operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. This is because international best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom, if ever, the subject of consideration in this regard. This point was made by the claimant’s counsel which this Court agreed with in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016. It was Arturo Bronstein in International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pp. 1 – 2 who said:
…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.
45. This rationale finds support in some of our case law authorities. For instance, Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA) acknowledged that there could be implied terms in a contract of employment as may be necessary, stressing that the law would not allow the imposition of servile conditions on an employee. In the words of Amina Audi Wambai, JCA (delivering the leading judgment):
In an employer-employee or master-servant relationship, in addition to or to the exclusion of the express terms of the contract, the law imposes certain implied terms into the contract. These implied terms may either be founded on statute, by custom, by practice, public policy or such terms as to ensure that the master does not subjudge the servant to a condition of servitude or slavery or like terms. While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q – D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.
46. The Court of Appeal cases the defendant cited and relied on are more appropriate for present purposes. His Lordship Garba, JCA (The Presiding Justice of Lagos Division, who presided and read the leading judgment) in Oak Pensions Ltd noted that:
…the primary duty of a court of law is to do justice, at least substantial, in all matters and causes that come before them, for adjudication by a dispassionate appraisal of peculiar facts, evaluation of material evidence and application of the relevant rules of law and equity. In the determination of the justice of a case and the entitlement of the parties in equity, the facts and material evidence placed before a court, are sine qua non. The decision to make any order in a case, whether sought for or not by any of the parties, must be predicated on such facts and evidence, taking the rights, obligations and interests of both parties into account or consideration. That was not done by the trial court before and in the award of compensation to the respondent. In the above premisses of the law, the award of two (2) years’ salary as compensation for the termination of the respondent’s employment cannot be supported and/or justified by the peculiar facts, circumstances and evidence if placed before the trial court and so wrong in law. It was not a relief claimed by the respondent, it was not a consequential relief to give effect to the decision by the trial court that the respondent’s master-servant employment was wrongfully but effectively terminated by the 1st appellant from the 27th February, 2013, but a distinct and substantive relief which was gratuitously awarded the respondent to which he was/is not entitled to, in law.
47. A number of conclusions can be drawn from His Lordship’s holding here. If this court had done all that was indicated such as predicating the order of compensation on the facts and evidence before the court, His Lordship may have held differently. Or, if justification for the award of 2 years’ salary as compensation was shown, His Lordship may have decided differently. This means that if case law authority were shown to exist where two years’ salary was actually ordered by the court, His Lordship may have been persuaded to hold differently. Or, if compensation as a relief was prayed for by the claimant, His Lordship may have decided differently. The more critical question, however, remains: the justice of the case since the primary duty of the court is to do justice.
48. In determining the justice of the case, there is a critical question to answer regarding the measure of damages where termination or dismissal is held to be wrongful. I must confess that this question was not raised as such before the Court of Appeal in Batelitwin Global Services Ltd v. Mr John Muir, Coca-Cola Nigeria Ltd & 2 ors v. Mrs.Titilayo Akisanya and Oak Pensions Ltd v. Olayinka. In raising the question, I crave not to be seen as rascally. It is a question that was raised before and so engaged the Ghanaian courts. We share the same common law heritage with Ghana and so the question may interest us. The question is: if compensation for lawful termination is one month’s pay after the employee had been forewarned, is it not preposterous to award the same one month’s salary where the termination has been held to be wrongful for whatever reason? The key issue is this. The employer can lawfully terminate the employee’s employment by paying salary in lieu of notice. This means the employer acted lawfully. Often, however, the employer refuses to do this; instead, he terminates/dismisses and refuses to pay salary and the employee is forced to go to court to ventilate for years on end the issue only to be given what the employer had all along refused to give him. This is the common law position, a rigid one at that; and the rules of equity are meant to ameliorate the harshness and rigidity of the common law.
49. The answer the Ghanaians gave to the question is interesting. In the Ghanaian case of Nartey-Tokoli v. Volta Aluminium Co. [1990] LRC 579, the Supreme Court of Ghana upheld the award of damages of a sum equivalent to 12 months’ salary beyond the amount equivalent to the worker’s wages to reflect the court’s disapproval of a wrongful dismissal. The Ghanaian Supreme Court cited with approval Agbettoh v. Ghana Cocoa Marketing Board [1984 – 1986) GLRD 16 and Hemans v. GNTC [1978] 1 GLR 4 at 10. In fact, Agbettoh ordered the payment to each plaintiff of an amount equal to 2 years’ salary in addition to receiving their entitlements under the contract of employment; while Hemans held that if compensation for lawful termination is one month’s pay after the employee had been forewarned, then it should appear preposterous to award the same one month’s salary where the termination has been held to be unlawful. Though these authorities are not binding on Nigerian Courts, they are persuasive and reflective of the current and trendy views in employment law in several jurisdictions and so may qualify as good or international best practice in this area of the law.
50. Back home here in Nigeria, there is case law authority which toed this Ghanaian line. The Court of Appeal, for instance, in British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276 held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice (and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice). The Court of Appeal proceeded to confirm the trial court’s award of two years’ salary as damages. British Airways v. Makanjuola was applied by this Court in Olufemi Amodu v. Epesok Paper Mill Limited unreported Suit No. NICN/LA/304/2013, the judgment of which was delivered on 22nd June 2016. The 1978 Supreme Court decision in ACB Ltd v. P. O. Ewarami [1978] 4 SC (Reprint) 71, which had thrown up hope was considered and rejected by the Court of Appeal in Mr Emmanuel Onamini Odibo v. First Bank of Nigeria Plc unreported Appeal No. CA/L/240/2011 decided on 5th October 2018 on the ground that it cannot stand later cases of the Supreme Court.
51. Oak Pensions Ltd v. Olayinka held that this Court cannot award compensation devoid of the facts and evidence before the Court. So what are the facts and evidence before the Court? The first thing to note is that the defendant accused the claimant of forgery and fraud, reported him to the Police, he was taken away and detained. As the testimony of the claimant under cross-examination shows, he was only told the reason for the arrest at the DPO’s office at the Police station. He was only released on bail the next day by which time a letter of dismissal had been written sacking him from the company. Meanwhile, the facts upon which the defendant accused the claimant of forgery and fraud were found by the Court of Appeal in its judgment of 17th May 2016 to be speculative and conjecture. In short the defendant’s allegations against the claimant were unfounded. Even in this retrial I found the same allegations to be unfounded, hinged essentially on documents that were not signed and/or dated. The claimant detailed his travail in paragraphs 8 to 15 of the amended statement of facts and as supported by paragraphs 8 to 15 of the claimants sworn deposition of 9th February 2012. In particular, the evidence before the Court is that the defendant unilaterally investigated the claimant for forgery and fraud, found him guilty and dismissed him from work without as much as a hearing. The defendant’s defence to these travails of the claimant is the same with that it relied on for its counterclaim. The Court of Appeal already affirmed that the counterclaim was baseless. This means that the defendant’s defence to the travails of the claimant is equally baseless. I so hold.
52. For these travails, it is the case of the defendant that the claimant is only entitled to salary in lieu of notice. Is this just? I do not think so. What the defendant is asking for here is no more than a pat on the back. An employer cannot accuse an employee of forgery and fraud, deny the employee a hearing, fail to justify the accusation in court and then flag salary in lieu of notice on the face of both the employee and the court. If the primary duty of the court is to do justice as Oak Pensions Ltd v. Olayinka noted, then the instant case is one that justice ought to be done by condemning in no small words the conduct of the defendant. I find the instant case easily coming within the purview of Oak Pensions Ltd v. Olayinka, which enjoined that compensation can only be given upon the facts and evidence before the Court. UMTHMB v. Dawa [2001] 16 NWLR (Pt. 739) 424 CA held that every employer, including every public body, must be careful not to abdicate or abuse its powers. Employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. In the determination of the employment of employees, they must at all times allow themselves to be guided by the rule of natural justice, as the law does not permit employers to act arbitrarily.
53. Incidentally, the claimant is not even asking for compensation. Since his dismissal is wrongful, he is only asking for the payment of his salary up to the date of judgment. Though ACB Ltd v. P. O. Ewarami [1978] 4 SC (Reprint) 71 refrained from going into the question whether at common law only an action of damages would lie, it nevertheless held that the respondent must be deemed to still be in the employment of the appellants and thus entitled to his normal salaries and/or benefits up to the date of judgment. In paragraph 7 of the amended statement of facts, the claimant pleaded that his monthly salary is N742,625.00. Exhibit C3 dated 21st June 2010 is a letter that increased the claimant’s remuneration package to N8,911,500 per annum. If this sum is divided by the 12 months of the year, what we get is N742,625.00 per month as salary. I find and hold that the salary of the claimant has thus been proved. Is the claimant thus entitled to his reliefs especially taking into account his travails at the hands of the defendant? This remains the question.
54. A careful reading of the leading judgment of His Lordship Nweze, JSC in the very recent case of Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018 (a case, I acknowledge whose cause of arose before the Third Alteration to the 1999 Constitution and went through a High Court) appears to give a gleamer of hope on the issue of quantum of damages in wrongful dismissal cases. His Lordship restated the law that it is what is payable for the period of notice. But the point to note here is knowing what was before the Court of Appeal and hence the Supreme Court first. In the words of His Lordship Nweze, JSC at page 15:
The lower court, finally, dealt with the issue of the appellant’s remedies in these words:
The next question is what remedies the appellant is entitled to for failure to give the agreed one month (sic) notice or pay (sic) one month (sic) salary in lieu of notice. (Sic)…
That this issue was delimited to “what remedies the appellant is entitled to for failure to give the agreed one month (sic) notice or pay (sic) one month (sic) salary in lieu of notice” means that the issue came within the first postulation of British Airways v. Makanjuola (supra), which is that the quantum of damages recoverable by an employee depends on whether the wrongful termination or dismissal of employment was as a result of the failure to give the required notice; if it is, then the quantum of damages may be the employee’s salary in lieu of notice. By specifically delimiting the issue to just this, we may read the Supreme Court as suggesting that where the wrongful termination or dismissal is for other than failure to give notice e.g. as a result of an alleged malpractice which stigmatizes the employee as was the case in British Airways v. Makanjuola, then a different consideration should apply.
55. This gleamer of hope can also be gleaned for another statement of His Lordship. Quoting International Drilling Company (Nigeria) Limited v. Moses Eyeimofe Ajijala [1979] 2 SC 64, 73 – 74, which relied on (inter alia) Nigeria Produce Marketing Board v. A. I. Adewumi [1972] 1 All NLR (Pt. 2) 433 at 437, Hs Lordship held thus: “In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract, Beckham v. Drake (1849) 2 H. L Cas 579 at pages 607-608”. The use of the phrase prima facie here can only mean that the rule admits of exceptions. But the joy appears short-lived as His Lordship proceeded immediately to hold: “Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal”.
56. The thing I note with Peter Onteachonam Obanye v. Union Bank of Nigeria Plc, however, is that while reliance was specifically placed on some of the older Supreme Court cases such as Western Nigeria Development Corporation v. Jimoh Abimbola (1966) NMLR 381, 382, Akinfosile v. Mobil (1969) NCLR. 253, N.P.M.B. v. Adewunmi [1972] 11 SC 111, Nigeria Produce Marketing Board v. A. I. Adewumi [1972] 1 All NLR (pt. 2) 433, 437 and International Drilling Co. Nig. Ltd. v. Ajijola [1976] 2 SC 115, nothing was said of ACB Ltd v. P. O. Ewarami [1978] 4 SC (Reprint) 71. What appears, however, to be the nail on the coffin would be the statement of His Lordship at page 18:
The application of this principle was vividly demonstrated by this court in the case of Western Nigeria Development Corporation v. Jimoh Abimbola, supra, where Ajegbo, JSC, (delivering the judgment of the court), after stating the guiding principles, said at page 382:
The plaintiff was given a letter of appointment (Exhibit A)…The plaintiff’s appointment was governed by the contract to which he entered at the time of his appointment. If he had been given one month’s notice before termination of his appointment, he would have had no claim whatever on the Corporation. But he was not given notice, and he is entitled to one month’s salary in lieu of notice. That is all he can get as damages. Other matters that the Judge considered are irrelevant (the emphasis is the Supreme Court’s).
57. With the gleamer of hope gone, the fate of the claimant in the instant case seems tied by especially Oak Pensions Ltd v. Olayinka, Coca-Cola Nigeria Ltd & 2 ors v. Mrs Titilayo Akisanya and Batelitwin Global Services Ltd v. Mr John Muir, and Peter Onteachonam Obanye v. Union Bank of Nigeria Plc (all supra). Reliefs (ii) of the claimant is a claim for a declaration that his employment still subsists and so is entitled to his “salaries, earnings, bonuses and perquisites of office from 17 August 2011 until it is properly and lawfully determined by the defendant”. This relief is tantamount to reinstatement since the claim is for the months after his wrongful dismissal, which by the authorities just cited cannot be granted. Relief (iv) is for N2,970,500.00 being the claimant’s salaries for the months of August to November 2011. Once again the case law authorities just cited will not allow the grant of this relief since the claim is for the months after the wrongful dismissal. Relief (v) is for the payment of N742,625.00 per month from December 2011 until judgment is delivered and thereafter until the claimant is properly and lawfully disengaged from the services of the defendant. Yet again, the authorities just cited will not allow this to be granted. They will only allow the payment to the claimant of salary in lieu of notice. Exhibit C1, the offer of employment, does not even have any provision as to payment in lieu of notice. The defendant suggested that the provision as to the Labour Act, which is two weeks’ pay in lieu of notice, should be used here. By paragraphs 1 and 2 of the amended statement of facts (and supported by paragraphs 1 and 2 of the claimant’s witness statement on oath), the claimant is an Information Technology Expert having obtained a Bachelor of Science Degree in Computer Science with Economics in 1997 and was Manager, Information Technology of the defendant. This takes the claimant away form the application of the Labour Act given the that this Act applies to workers, whose definition under section 91(1) of the Act excludes the employees of the status of the claimant.
58. The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd [1997] (Pt. 484) 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA); [2001] 2 NWLR (Pt. 697) 424. The Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9 – 10 SC (Reprint) 254 stated the law thus:
The law is that, generally, the length of notice required for termination of contracts of employment depends on the intention of the parties as can or may be gathered from their contract and in the absence of any express provision, the courts will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); and even where (as clearly provided in clause 21(c) of “Exhibit “B” for persons still under probation) the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee (see Re-African Association and Allen (1910) 1 KB 396).
And by Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303, where there is a contract of service, there is an implied term that the contract can only be terminated by reasonable notice; and what is reasonable is always dependent on the nature of the contract and status of the employee in the establishment. Hence, the higher the position held by the servant and the larger the salary the longer will be the notice required to put his contract at an end. See also Shena Security Co. Ltd v. Afropak (Nig.) Ltd [2008] 18 NWLR (Pt. 1118) 77. Given the position and status of the claimant in the instant case, I take one month to be the reasonable period of notice as well as the yardstick for determining payment in lieu of notice. Consequently, I find and hold that on the authorities, the claimant is entitled to N742,625.00, being his one month salary (which I held earlier as proved), as the measure of damages in the instant case. I so order.
59. On the whole and for the avoidance of doubt, the claimant’s case succeeds but only in terms of the following declaration and orders:
(1) It is hereby declared that the purported dismissal of the claimant by the defendant vide the dismissal letter dated 17th August 2011 is wrongful.
(2) The said dismissal letter dated 17th August 2011 issued by the defendant to the claimant is hereby set aside.
(3) The defendant shall pay to the claimant Seven Hundred and Forty-Two Thousand, Six Hundred and Twenty-Five Naira (742,625.00) only being one month’s salary in lieu of notice, the measures of damages the claimant is entitled to.
(4) The cost of this suit must be borne by the defendant, for having to put the claimant through the pains of a trial and retrial; and the cost is put at Five Hundred Thousand Naira (N500,000) only.
(5) All sums payable under this judgment must be paid within 30 days of the judgment; failing which they shall attract interest at the rate of 10% per annum.
60. Judgement is entered accordingly.
……………………………………
Hon. Justice B. B. Kanyip, PhD
