ILIYA BASSI -VS- CATHOLIC RELIEF SERVICES

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE

DATED:14^TH JULY 2017 SUIT NO: NICN/ABJ/127/2014

BETWEEN

ILIYA BASSI – CLAIMANT

AND

CATHOLIC RELIEF SERVICES – DEFENDANT

REPRESENTATIONS

Kolawole OlowookereEsq, for the Claimant,

O. OlowokureEsq, for the Defendant.

JUDGEMENT

By a general form of complaint, dated the 20^TH day of May 2014, the Claimant brought this action against the Defendant, seeking inter alia, the following reliefs;

A DECLARATIONthat the Defendants’ Dismissal of the Claimant from the Defendants service is ultra vires the provisions- of the Defendants’ employee handbook and is therefore
unconstitutional, contrary to the Applicant’s Right to fair hearing null and void and of no effect whatsoever.

A DECLARATIONthat the Defendant’s unilateral stoppage of the severance benefit of her employees (including the Claimant) since 31^st July, 2013 is null and void and of no effect.

A DECLARATIONthat the Defendant’s letter of dismissal dated 3^rd February, 201 4 is null and void.

AN ORDERdirecting the Defendant to pay to the Claimant the sum of N193,805.00 (One Hundred and Ninety Three Thousand, Eight Hundred and Five Naira) only being sum due to a Claimant in lieu of one month notice.

AN ORDERdirecting the Defendant to pay to the Claimant the sum of N94,132.56 (Ninety Four Thousand Naira One Hundred and Thirty Two Naira Fifty Six Kobo) only being the Claimants additional severance benefits for 1^st August 2013 to the February, 2014 (same
calculated at the monthly earned sum of N15,688.76 (Fifty Thousand Six Hundred and Eighty Eight Naira Seventy Six Kobo) only per month.

AN ORDERdirecting the Defendant to pay to the Claimant the sum of N2,167,924.26k (Two Million One Hundred and Sixty Seven Thousand Nine Hundred and Twenty Four NairaTwenty Six Kobo) only being sums due to the Claimant as severance benefit/entitlement as at July, 2013.

Payment of the sum of N10,000,000.00 (Ten Million Naira) only as general damages for trauma and psychological disorientation caused the Claimant by the Defendant.

AN ORDERdirecting the Defendants to clear the claimant to enable him access his pension accounts No: PEN 100146083688 with IBTC pension managers limited.

10% interest on the judgment sum for the date of judgment until final liquidation.

THE CLAIMANT’S STATEMENT OF CLAIM

The claimant is an employee of the Defendant, whose employment was confirmed by the Defendant on 5^th day of May2003 he was eventually promoted to the post of Administrative Assistant on the 28^th June, 2012. His employment is regulated by the Defendant’s Employee’sHand Book currently in force.

According to the Claimant, sometimes in mid-2013 he was instructedby his supervisor to Negotiate with the Branch Manager ofPower Holding Company of Nigeria (PHCN) to clear outstandingelectricity bill of about N750,000.00 (Seven Hundred and Fifty
Thousand Naira)

That in pursuance of the said Negotiation he was informed by the PHCN branch Manager to pay the sumof N250,000 (Two Hundred and Fifty Thousand Naira only) toone Miss Bose who was at the time a staff of the company’sMaitama Branch in full discharge of the outstanding bill ofN750,000.00 (Seven Hundred and Fifty Thousand Naira) only.

He subsequently informed theDefendant through his supervisor of the outcome of theNegotiation with the Branch Manager to which the sumof N250,000 (Two Hundred and Fifty Thousand Naira) onlywas advanced to him for the full and final payment ofoutstanding PHCN electricity bills N750,000.00 (Seven Hundredand Fifty Thousand Naira)

He remitted the said sum to the saidMrs. Bose as instructed by the PHCN Branch Manager, and she promised to make available the receipt of the paymentmade, but to no avail.

According to him, he kept the Management of theDefendant updated of the difficulty he encountered in his pursuitof the receipt from Mrs. Bose.

He eventually received a letter of indefinitesuspension dated the 23^rd October, 2013 from the Defendant.The said letter cited an unretired sum of N250,000 (TwoHundred and Fifty Thousand Naira) only advanced to him forthe payment of PHCN electricity bills and on suspicion of fraud.

He was subsequently issued a query dated 1 1^th December, 2013 wherein the Defendant requested aliquidation on the advanced sum of N250, 000 (Two Hundredand Fifty Thousand Naira) only, to which he replied.

No communication was received from the Defendants either through him or his Lawyers hence, theinstruction to institute this suit.

The claimant averred that he was issued a letter dated 3^rdFebruary, 2014 purporting to terminate his employment of 11years with the Defendants on the grounds of fraud as containedin the letter of suspension, without any notice.

He stated that since his employment with the Defendant,he had always been part of the Defendant’s severance liability scheme and as at July 2013, the total sum accruable to theClaimant under the scheme is about N2,167,924.26 (TwoMillion one Hundred and sixty seven thousand Nine hundredand twenty Naira twenty four Kobo) only, and that his monthly salary as at the time of the purporteddismissal was N193,805.00 (One Hundred. AndNinety Three Thousand, Eight Hundred and Five Naira) only.

DEFENDANT’S STATEMENT OF DEFENCE

On their part, The Defendant contended that the Claimant has ceased to be an employee of the Defendant effective from 3^rd February 2014.

During his employment, the Defendant received several queries on sundry issues, Relating to the Claimants poor performance or non- performance and that the Defendant had been quite tolerant of his excesses.

The Defendant denied that the Claimant mentioned that the PHCN Manager directed him to pay one ‘Miss Bose’ until he was confronted about the unretired advance 4 months later.The Defendant admitted that the Claimant informed it that PHCN had conceded to a payment to PHCN of N250,000:00 [Two Hundred and Fifty Thousand Naira] in full and final settlement of the outstanding bill in respect of a property it had previously occupied.

In line with the Defendant’s accounting procedures the Claimant was advanced by the Defendant the sum of N250, 000:00 [Two Hundred and Fifty Thousand Naira] on 14^th May 2013 to liquidate the electricity bill and obtain an official receipt from PHCN.

Up until date the Claimant has not been able to refund the N250, 000:00 [Two Hundred and Fifty Thousand Naira] nor provide a receipt evidencing that the said N250, 000:00 [Two Hundred and Fifty Thousand Naira] was utilized in a mannerauthorized by the Defendant despite the fact that the said amount should have been retired by the Claimant before the end of May 2013.

Members of staff with the Defendant present, interviewed the said ‘Miss Bose’ mentioned by the Claimant in paragraph 6 of his Statement of Claim and she flatly denied receiving N250, 000:00 [Two Hundred and Fifty Thousand Naira] or any amount from the Claimant.

The Defendant did not keep the Claimant informed but kept quiet about the advance of N250,000:00[Two Hundred and Fifty Thousand Naira].

It was not until sometime around September 2013 that the Defendant’s former landlord contacted the Defendant and complained that PHCN were still disturbing him about a bill of N250,000:00 [Two Hundred and Fifty Thousand Naira].

The Defendant was shocked to hear this news and inquired from the Claimant what happened to the N250,000:00 [Two Hundred and Fifty Thousand Naira] that was advanced to him, it was only at this point over 4 months later that the Claimant started attempting to give explanations as to what happened to the money.

They averred that the Claimant was dismissed due to “Gross Misconduct and serious negligence, on the following grounds;

Receiving the sum of N250, 000:00 [Two Hundred and Fifty Thousand Naira] from the Claimant and failing to retire or refund the said sum since May 2013.
Concealing his inability to retire- the said sum of N250, 000:00 [Two Hundred and Fifty Thousand Naira] for four months.
Claiming to have parted with the said sum of N250, 000:00 [Two Hundred and Fifty Thousand Naira] without receiving a receipt therefore or any other form of acknowledgment.

They averred that The Claimant was given every opportunity to extricate himself and given a fair hearing.

The Defendant stated that the Claimant is not entitled to any severance benefit [or severance liability scheme] nor is he entitled to notice upon dismissal from employment for cause.They also denied withholding any salary allowance or benefit due to the Plaintiff.

COUNTERCLAIM

In their counter claim, the Defendant Counter Claimed against the Claimants follows:

a.The unretired sum of N250, 000:00[Two Hundred and Fifty Thousand Naira] being the amount collected by the Claimantfrom the Defendant and unaccounted for.

b.10% post judgment interest from the date judgment is entered to the date judgment is finally realized.

Hearing commenced in this case on the 17^th day of June, 2015 wherein the Claimant testified for himself as PW1 and the matter was adjourned for cross examination of PW1.

On the 23^rd September, 2015, the PW1 was cross examined by counsel to the Defendant and he was discharged, thus paving the way for the Defendant to open her case.

On the 19^)h October, 2015 the Defendant opened her case by calling her first witness who was partly cross-examined and the matter was adjourned for further cross examination of DW1 .

On the 12^th of April, 2016, DW1 was cross examined by counsel to the Claimant after which he was discharged and the matter was adjourned to 25^th May, 2016 for continuation of defence.

On the 25^th May, 2016, the Defendant called her second witness who testified as DW2 and the Claimant’s counsel cross examine the DW2 whereupon the case was adjourned for adoption of final written addresses of counsel.

In the course of the trial, the following exhibits were tendered and admitted, to wit;

Confirmation of employment dated 3^rdMay, 2003 admitted as Exhibit A1.

Indefinite suspensiondated23^rd October/ 20 f 3 admitted as Exhibit A2,

Claimant’s response to query captioned ‘Re-Query on long term unliquidated advance of N250, 000’ as Exhibit A3.

A letter titled “Re-termination of employment” written by E H.
Onugwu as Exhibit A4.

Severance liability report as Exhibit A5.

f Letter of Query as Exhibit A6,

Letter of promotion to Administrative Assistant as Exhibit A7,

Employee’s handbook as exhibit A8

Pay slip for the month of November 20] 3 as Exhibit A9.

Defendant counsel letter dated 11^thMarch, 2014 in response to theExhibit A4 was admitted as Exhibit B1,

The minute of the meeting between the Defendant and the Claimant admitted as exhibit C and

The claimant’s termination letter was admitted as exhibit D.

FINAL ADDRESSES.

CLAIMANTS

The Claimant in their final written address, raised the following issues for the determination of this suit to wit:

Whether the Defendant complied with its Employee’s Handbook (Exhibit A8) and the relevant provisions of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) in the procedure leading to the termination of the

Assuming but not conceding that the Defendant complied with Exhibit AS In terminating the Claimant’s appointment, having regards to the nature of allegation against the Claimant and the reasons given for his termination, whether the Defendant can has proved any wrong doing in law against the Claimant,to warrant his termination.

If issue two above is answered in the negative whether

termination of the Claimant’s appointment is not a violation of his right to fair hearing and therefore not a breach of the contract between the Claimant and the Defendant, thus entitling the Claimant to the reliefs sought.

Having regards to the pleadings and evidence led,Whether the Defendant’s Counter-Claim can be said to have been proved to warrant a grant of same.

ARGUMENT ON THE ISSUES

ON 1SSUE 1,

Learned Counsel submitted that in an action for wrongful termination of employment as in the instant case, and having regards to the nature of the allegation which forms the basis of the termination complained of; the contract of service (employment) is the pivot upon which the case of an employee is predicated. He referred the court to the case of CADBURY NIG PLC VS OLABUNMI O. ONI (2012) LPELR 19821 CA

He argued that the Law is quite clear and elementary that whoever desires any court to give judgment as to any legal right or liability on the evidence of facts which he asserts must prove that those facts exists.

He submitted that the Defendant did not comply with the relevant provisions of Exhibit A8 in terminating the Claimant’s employment.He however pointed out that Exhibit A8 under the caption “STANDARDS OF CONDUCT” laid down the guiding principle in the discipline of its employees,

Counsel argued that in his pleading and evidence, the Claimant testified to the effect that he received a letter of Indefinite Suspension dated 23^rd October, 2013 (Exhibit A2) which alleged Fraud against the Claimant and a Query dated 11^th December, 2013 (Exhibit A6) While conceding that the Defendant is not bound to following all the steps laid down in Clause 5 of 3.1 (Standard of Conduct} in Exhibit A8 before the Defendant could validly resort to section g of (termination), Counsel submitted that compliance with section c(written warning) and section f (Administrative suspension) are conditions precedent to terminating the Claimant’s appointment,

He reproduced the provisions of Section C (written warning), Section F (Administrative suspension) and Section g (Termination) of Exhibit A8.

He submitted that the Claimant has led evidence to prove that the Defendant did not comply with Exhibit A8, These go to show that theDefendant did not comply with its condition of service in terminating theClaimant’s appointment.

To counsel, before the Defendant can validly resort to terminating
the Claimant’s appointment, the Defendant must comply with the, sectionc of its Employee’s Handbook and the reason(s) for such terminationmust fall within either of the following; Unsatisfactory job performance,continuous non-compliance with instructions from supervisors; continuous orunjustified absence without permission or certified medical certificateapproved by CRS_,continuous lateness for work, unauthorized use of CRS vehicles or other property, reasonable suspicious of theft or dishonesty.

He argued that the Defendant ought to have given the Claimant a written warning if she finds theClaimant’s reply to the Query (Exhibit A3) unsatisfactory to absolve him of the allegation before terminating his appointment.

Counsel further referred the court to Section 3(1) of the 1999 Constitution (As Amended), and argued that the law is clear that termination of an employee’s appointment must be done in strict adherence to the laid down disciplinary procedure. He relied on the case of UNIVERSITY OF SLORIN V. ADINSRAN (2007) 2 CLRN 25 per Agube JCA

Learned Counsel submitted that the termination of the Claimant’s employment by the Defendant was done in violation of theDefendant’s condition of service and the rules of natural justice encapsulated in the constitution, and urged this court to hold that the Defendant did not strictly comply with Its Employee’s Handbook in terminating the Claimant’s appointment as- required by law,

ON ISSUES TWO AND THREE,

Learned counsel submitted that having regards to the allegation of suspicion of occurrence of Fraud within the Defendant’s Administrative unit as evidenced by Exhibit A2, ExhibitA6and Exhibit D, The allegations are criminal in nature, it was therefore Incumbent on the Defendant to investigate the allegations in strict compliance with the rules of Natural Justice as encapsulated in section 36 (1) (4) of the Constitution in order to ascertain the truth or otherwise of the allegation.

To counsel, the vexed question that will be germane to the resolution of these issues is, based on the facts presented before this court by both parties in this case; can the Defendant be said in law to have accorded the Claimant the requisite right to fair hearing as contemplated by the Constitution before terminating the Claimant’s appointment?

To answer this question, counsel relied on the rules of Natural Justice applicable to labor relations inNigeria.Under the Rules of Natural Justice, fair hearing has been judicially defined In many cases for example, in the English case of KANDA VS GOVERNMENT OF MALAYA (1962) AC 322 per Lord Denning,

Counsel referred this court to Exhibit A2, the letter of indefinite suspension which alleged occurrence of fraud in the administrative unit and the inability of the Claimant to produce an acceptable receipt In respect of a delinquentliquidation.

He argued that the Defendant, in her pleading and evidence, particularly at paragraph 11 of her Statement of Defence and paragraph 5 of the DWl’sStatement on Oath stated that it was not until sometime around September 2013 that the Defendant’s former landlord contacted the Defendant and complained that PHCN were still disturbing him about a bill of N25Q, 000 (Two Hundred and Fifty Thousand Naira) only. Thedefendants embraced such unconfirmed allegation from the landlord hook line and sinker without inviting the land lord and confront him with the claimant on the allegation.

Counsel submitted that, the case of the Claimant is essentially that he wasnot given fair hearing in the process that led to his termination from the services of the Defendant. However, in a feeble attempt to disprove this claim, the Defendant tendered her letter dated 11^thMarch, 2014 (exhibit B1.) purporting to prove that the Claimant’s was accorded the right of appeal.

Learned counsel stated that DWI admitted under cross examination that the Claimant was never investigated for Gross misconduct DW 1 also informed the Court under cross examination that neither the Defendant’s former landlord who informed the Defendant that PHCN was disturbing him about a bill of N250, 000 (Two Hundred and Fifty Thousand Naira) nor any staff of PHCN was in the meeting that culminated to Exhibit C even she also admitted under cross examination that It was the said landlord’s information that triggered the Claimant’s investigation. DW 2 equally stated that neither staff of PHCN nor anybody outside the employment of the Defendant was present at the said meeting.

He noted that both witnesses for the Defense are ad idem that the N250, 000 (Two Hundred and Fifty Thousand Naira) only was meant to be paid to the PHCN, but while DW1 told the court under-cross examination that the Defendant Investigated the allegation against the Claimant at PHCN, DW2 said he did not know of any other effort to Investigate the allegation at PHCN in order to ascertain the truth or otherwise of the allegation. DW2 also stated that he was present at the meeting that culminated in Exhibit C and the- the meeting was presided by the country representative who is an employee of the Defendant.

Learned counsel submitted that the above facts, are evident in the case of the respective parties to prove to this Honorable court the following important points to wit:

That the allegation against the Claimant as shown in Exhibit A2(Suspicion of Occurrence of Fraud) is criminal In nature,

The basis of the Claimant’s investigation in themeeting that culminated to Exhibit C is the alleged complaint from theDefendant’s former landlord and the alleged occurrence of Fraud.

The minute of the meeting that culminated to Exhibit C was never attended by the said landlord or any staff of the PHCN for the Claimant to confront them on the allegation.

The Claimant was never investigated for Gross misconduct,
The meeting in Exhibit C did not conclusively prove

allegation of fraud against the Claimant.

The Defendant is the Claimant’s Complainant, investigators as well as his prosecutors.

To counsel, from the foregoing conclusion, it is clear as crystal that the allegation of fraud against the Claimant was never proved and no further investigation was conducted either by the police or the Defendant to prove the alleged Fraud against the Claimant.

Learned Counsel submitted further that it is elementary that allegation of fraud in Exhibit A2 is a criminal allegation. Before Exhibit A2 was dished out to the Claimant, there was a query served on the Claimant (Exhibit A6) to which the Claimant replied (Exhibit A3).The grouse of the Claimant is that he was not given fair hearing to appear before any panel before the letter terminating his employmentwas served on him, neither was he charged to any court of law withcriminal jurisdiction.

The reason for the above is that the Claimant was never brought face to face with his accuser(s) if any, to confront them and the witnesses if any against him. All that the Claimant received from the Defendant were query, suspension and terminationletter after an Inconclusivemeeting

To counsel, The pertinent question is, why did the Defendant fail to bring the Claimant face to face with the Landlord from whom information the allegation of non-remittance of the N250, 000 (Two Hundred and Fifty Thousand Naira) only to PHCN emanated as well as the PHCN staff whom they claimed were contacted in connection with the allegation and denied the said remittance?.

Under the rules of Natural Justice, impartiality and fairness are the twin pillars of fair hearing. Hence Section 36(1) of the Constitutionwhile providing for “a fair hearing” stresses the “Independence and impartiality”of the adjudicating body.

Counsel submitted that the above cannot be otherwise because, bias or interest will disqualify the court or tribunal from even hearing the case in the first place. One cannot therefore seriously talk of fair hearing before a judex (judge) who has an interest in the particular case before him. The independence and impartiality of the judex in any particular case before a tribunal is thus a condition precedent, a sine qua non to fair hearing by any tribunal or body. He referred the court to the case of EKEOCHA VS THE CIVIL SERVICE COMMISSIONER & ANOR1981) 1NCLR 154, SOFEKUN V. AKINYEMI&ORS (1980) 5-7 SC

Learned Counsel held the view that where allegation of commission of crime has been denied and disputed by an employee, as the Claimant in this case, the burden of proof .rests on the accuser to prove the commission of the alleged crime beyond reasonable doubt, which can only be done by a court established by law and constitutionally vested with powers to exercise criminal jurisdiction as in this case. He relied on the case of OLATUBOSUN V. NIGER (1988) 3 HWLR (PT 80} 25 AND FSSC & 2 ORS VS LAOYE {1989} 2 NWLR (PT 106) 652, CADBURY NIG PLC V. ONS (SUPRA) Ratio 7

Learned counsel while answering in the negative to the question whether a situation where an employee (as the Claimant in this case) is accused of and investigated for one offencebut punished for another offence for which was never accused offnor investigated be rightly described as a fair hearing, submitted that In the instant case the Defendant under cross examination told the court that the Claimant was not investigated for Gross misconduct which was the reason adduced in the letter of termination, what then is the basisfor the termination on that ground of Gross Misconduct and Negligence for which the Claimant was never investigated and afforded ample opportunity to defend himself. He referred the court to the case ofUNIVERSITY OF CALABAR V. ESSIEN (1996) 10 NWLR (FT. 447) 225 @ 262 PER IGU JSC, OLATUBOSUN V. NISER (SUPRA) AT 52

Learned Counsel pointed out that they are not unaware of the position of the law which says that it’snot necessary nor is it arequirement of the law that before an employer dismisses his employee from his services, under the contract of a simple master/servant, the employee must be tried by a court of law especially where the allegation against the employee is for GROSS MISCONDUCT involving dishonesty bordering on criminality. He referred to the case of YUSUF V. UBN PIC (1996) 6 NWLR (PT 457} 632,

He submitted that the above position of the law only applies where the employee has been found guilty by a disciplinary committee to have committed a Gross Misconduct bordering on criminality; in which case the master then has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily.Hereffered the court to YUSUF V. UBN (SUPRA), OLARSWAJU V. AFRIBANK (NIG) PLC (2001) 13 (PT. 731} 691 @ 714-715.

On Issue Four,

Counsel submitted that the Claimant is entitled to the relief claimed in this suit having discharged the burden required of him to prove wrongful termination of his employment.

In his pleadings and evidence before the court, the Claimant averred and testified to the effect that he had served the Defendant meritoriously for a period of over 1 1 years which led the Defendant to promote him at various times the last of which was Administrative Assistant as evidenced by Exhibit A7.

This evidence was corroborated by the testimony of PW1 who under cross examination told the court that promotionin the Defendant’s services is based on satisfactory performance and that the Claimant’s last promotion was based on satisfactory performance.

In her attempt to disprove the Claimant’s case that he served the Defendant meritoriously, the Defendant in paragraph 3 of her Statement of Defendant listed a number of queries/excesses but never mentioned or tendered any evidence to disprove the Claimant’s evidence in that regard.

To counsel,the law is clear that pleadings on which no evidence are led is deemed abandoned. He therefore urged this court to hold that the Claimant’s evidence as established by Exhibit A7 remains unchallenged which this court is bound to believe, relying on the case ofARABAMBI & 1 OR VS ADVANCE BEVERAGES INDUSTRIES LTD (2005) 24 NSCQR P. 520 where the Supreme Court held that:

ONISSUE FIVE

Counsel submitted thatit is trite law that the main claim and Counter-claim are two separate and distinct actions that require separate proof. He referred the court to ARAB CHEM LTD VS PHARM RELPH OWODUENYI (2003) LPELR – 22367 (A), and further submitted thatthe Defendant having not led any evidence to prove her Counter-claim cannot be said to be entitled to the relief.

He contended that beyond the mere averments in her Counter-claim, the Defendant did not lead any evidence to show that on the account of the Claimant’s non-payment of the N250,000 (Two Hundred and Fifty Thousand Naira) only advanced to him for the settlement of PHCN Bill, the Defendant had paid same to PHCN.

In conclusion, Learned Counsel urged this court to resolve all issues in favorof the Claimant and against the Defendant and proceed to grant the reliefs sought.

DEFENDANT’S FINAL WRITTEN ADDRESS

On their part, the defendants submitted two issues for determination, to wit:

Is the Defendant’s dismissal of the Claimant sustainable in law?

Is the Claimant entitled to any of the pecuniary claims put forward by
him?

ON ISSUE ONE,

Learned Counsel submitted that the position of the law is very clear, that an employee who complains of wrongful termination of employment by his employer has the onus to prove the wrongful termination of the said employment by:

a)Placing before the Court the terms and conditions of the contract ofemployment; and

b)Proving in what manner the said terms were breached by the

Employer.

He reffered the court to the case of NITEL PLC VS AKWA [2006] 2 NWLR [PT 964] 391 @ 414 PARAS C-E

It is the Claimant’s contention that his dismissal is ultra vires and it was done without fair hearing.

Counsel submitted that Ultra Vires’ is a very fanciful term which applies to a corporation orGovernment authority that carries out acts that it does not have power to do. Where there is no statute or charter regulating the relationship between the employer and employee the employer has an inalienable right to dismiss or terminate theemployment,Even where the dismissal or termination is wrongful the act cannot be ultra vires it would only attract the appropriate specific damages. He reffered the court toDanmisa V UBA Pic [2005} 9 NWLR (Pt 931)526 at 535-536 H-C

Counsel contended that the facts clearly show that the Claimant collected and failed to account for the sum of N250, 000.00[Two Hundred and Fifty Thousand Naira], and that the Claimant initially attempted to conceal the fact of the unaccounted money until he was pressurized by the Defendant to produce a receipt [he referred to thethe evidence of DW1 and DW2].

The Claimant also deliberately withheld crucial documents from the Court to buttress the fact the he was not approaching the Court with clean hands. He did not produce the minutes of a meeting he attended and also refused to tender a crucial letter received from the Defendant’s solicitors.

He argued that the minutes of the meeting dated 4^th October 2013 tendered through the Defendant’s witness and signed by the Claimant clearly spell out the uncontroverted facts of this case.

The process leading up to the Claimants dismissal is clear and transparent. He referred the Honorable Court to the following exhibits

Query to the Claimant dated 11^th December 2013.
Reply to query dated 17^th December 2013
Letter of dismissal dated 3^rd February 2014
The Defendant’s solicitor letter dated 11^th March 2014.

To Counsel, the purport of these exhibits is that a disciplinary process took place the Claimant was found liable of gross misconduct and negligence and was accordingly dismissed.

He noted that the claimant was not dismissed for fraud [see letter of dismissal] and neither was he denied a fair hearing. The facts herein are not too dissimilar to the facts in the case of Danmisa V UBA Plc supra at 535-536 H-C

He argued that the Claimant’s contention that the Claimants in house Appeal would have been compromised does not hold water in view of the Defendant’s Lawyer’s letter dated 11^th March 2014 tendered as an exhibit through the Defendant’s witness offering to ensure the Appeal [if he appealed] would not involve the signatory of the dismissal letter. In re-examination of DW2 it became clear that the Defendant is an International NGO with its headquarters in USA so the Country Representative has superiors he reports to. In any event the Appeal is a speculative event since it did not happen.

To counsel, the real issue in contention is the actual dismissal which was fair transparent and just. He relied on Clause 6(4) of the Employee Handbook tendered by the Claimant which states

a) “Termination due to a major offence resulting in asummary dismissal can take place without notice in accordance with the provisions of this manual, suchemployees will not receive any separation benefit”.

Counsel further referred the court to Article 1.3 of the manual ‘guiding principles’ subtitled ‘Stewardship which states that

a) “There is an inherent integrity for all of creation and itrequires careful stewardship of all our resources (underlining mine), ensuring that we use and distributethem justly and equitably”as well as planningfor future generations“.

And Article 3.1.2 of the manual which also states that;

a) “The first reference point for identifying disciplinary actionfor a specific infraction or violation of a policy should bethe policy itself. However where there is no mention- of disciplinary action, any violation of a policy (e.g Article 3) in this manual may be subject to disciplinary action depending on the gravity of the offence“.

He also referred to Article 3.1(6) of the HR Manual ‘DISMISSAL’ which states “Gross misconduct and serious negligence are grounds for dismissal. Summary dismissal may be effected by CRS [Nigeria without Notice at any time for such offences.”

Learned Counsel argued further that the Claimant’s failure to obtain a receipt and credibly account for N250,000:00 [Two Hundred and Fifty Thousand Naira] for almost 3 years to say the least is totally unacceptable and justifies a finding of Gross misconduct and or serious negligence.

Counsel submitted that the Claimants personnel file tendered in evidence is full of queries on various issues so he is certainly not a saint and is fully aware of his former employer’s standards of accountability, if every employee is permitted to take out large sums of money for official purposes and comes back with lame excuses of why they do not have a receipt (even the beneficiary PHCN says it did not receive the money) what message would we be sending to other employers. The Claimant could not bring any witness to back up his very shaky claim that he gave the money to one ‘Miss Bose’, in any event the money was meant to be delivered to PHCN officially and not through any back door methods.

Counsel argued further that It is in evidence that at the material time the Claimant was on a salary of N193,805.00 [One Hundred and Ninety Three Thousand, Eight Hundred and Five Naira] per month, The Claimant was advanced the N250,000:00 [Two Hundred and Fifty Thousand Naira] on 14^th May 2013 and was not dismissed until 3^rd February 2014. On £4193,805:00 [One Hundred and Ninety Three Thousand, Eight Hundred and Five Naira] salary per month the Claimant had ample time to save his job by refunding the money.

The law is clear that in employment law the contract and the HR Manual govern the terms of the employment. See NITEL PLC VS AKWA Supra

Importing provisions of law or citing authorities that do not relate to the Defendant’s contract documents in the circumstances of this case are superfluous and irrelevant. There is no evidence that the Claimant’s employment is governed by anything other than the contract and the HR Manual. These documents are not of a statutory flavor and they are not the civil service rules.

Conclusively, he submitted that the onus is on the Claimant to show how the actual dismissal (not the anticipated appeal which he could have declined to activate in any case) was ultra vires or a breach of fair hearing to which he failed. He however urged this court to decide this issue in favor of the Defendant.

ON ISSUE TWO

Counsel submitted that the Claimantclaimed various financial benefits. He however treated the claims, as specified hereunder.

GENERAL DAMAGES OF N10,000,000

To counsel, the law is clear on general damages in this particular case of the Claimant’s Claim can be particularized since even by the Claimant’s pleadings he is entitled to one month’s salary in lieu of notice. There is nothing general about the damage suffered it can only be specific if at all it exists. He referred the court to the case oflFETA V. SDPC (NIG) LTD [2006) 8 NWLR [PT 983} 585@ 609 – 610.

PENSION BENEFITS

Counsel argued that Under cross examination the Plaintiff acknowledged that contrary to his pleadings the Defendant had not obstructed his pension benefits being paid and that in fact he had already collected his pension benefits which amounted to between N3, 000,000: 00 [Three Million Naira] and N4,000,000:00 [Four Million Naira].

He informed the court to note that these are benefits that are accruable under the Pension Reform Act 2014 and consist of joint contributions from the employer and employee. He also noted that had the Defendant not been law abiding and made the contributions as prescribed by law and paid the monies over to the appropriate entity the Claimant would not have been able to collect such a significant amount of money uponleaving the Defendant.

SEVERANCE BENEFITS

Counsel submits that Blacks law (sixth Edition) defines severance as a payment that “represents a form of compensation for the termination of the employment relation for reasons other than the displaced employee’s misconduct” Black’s Law dictionary goes on to state “Generally it is paid when the termination is not due to the employee’s fault”

To counsel,this is the universally accepted concept of severance (as opposed to gratuity) that it is only payable when the employer severs theemployment through no fault of the employee.

He referred the court toArticle 6.10 of the HR Manual tendered in evidence whichstates thus “Severance benefits is to help cushion the financial impact of job loss when an employee is terminated through no fault of his or her own” it goes on to say “CRS will pay severance benefit to compensate employees who we terminated as a result of downsizing, redundancy, realignment, retrenchment, elimination of the position or closure of the program and other causes not within the employee’s control”.

He submitted that a situation where the Claimant was dismissed for “gross misconduct or serious negligence” is clearly a situation that is his fault or ordinarily would be within his control if he had conducted himself appropriately.

To him, It is incredible that the Claimant who despite walking away with a Pension of N3,000,000:00 – N4,000,000:00 is still expecting severance pay of over N2,000,000:00. This means he wants to be rewarded for his reprehensible behaviour.

SALARY IN LIEU OF NOTICE

Counsel submitted that a dismissal does not require salary to be paid in lieu of notice as it is with immediate effect. The article of the Defendant’s HR Manuel already cited bears this out.

In sum, counsel submitted that the Defendant counterclaimed for the sum of N250, 000:00 [Two Hundred and Fifty Thousand] admittedly collected by the Plaintiff and admittedly not accounted for. It is the Defendant’s position that the totality of the evidence adduced by both the Claimant and Defendant support the Defendant’s Claimin this regard and urged the Court to uphold the Defendant’s Counterclaim.

CLAIMANT’S REPLY ON POINTS OF LAW, TO THE DEFENDANT’S FWA.

Counsel submitted that the yardstick is not what the defendant thinks, rather the yardstick for determining the rightness or otherwise of the defendant’s conduct leading to this suit should be whether the process leading to the claimant’s dismissal accorded with the rules of fair hearing, in line with the constitution of this country. He however urged the court to discountenance the defendant’s argument in paragraph 8 of her written address.

COURT.

Having gone through the case of both parties, Exhibits adduced in the course of trial, as well as the argument of both parties, for and against their respective claims and/or counter claims, the court forms the opinion that the two issues below, aptly suits for the just determination of this case, to wit;

Whether the case of the claimant succeeds, as to entitle him to the reliefs sought
Whether the defendant was able to prove his counter claim.

The claimants case is that his employment was wrongly terminated by the defendant, as he was not given the opportunity to defend himself on the offence to which the said employment was terminated. It was also his case that the defendant did not conduct proper investigation, as he was dismissed based on fraud, and not gross misconduct, which was criminal in nature.

While the case of the defendant was that the employment of the claimant was terminated on the grounds of gross misconduct, following series of queries, more especially, the non-payment of the sum N250,000.00 only, to PHCN, or if payment was made, the failure of the claimant to account for same by producing receipt of payment.

It is trite law that where there is a written contract of employment, it is outside the province of the court to look anywhere for terms of termination of the contract, other than in the written contract. See the case of Kattovs C. B. N (1999) 6NWLR (PT 607), 390 AT 405, paras D-F.

The terms and conditions of contract of employment are the substratum of any case where the issue of wrongful termination of employment calls for determination. See the case of Ifetavs Shell Pet. Dev. Co. Ltd. (2006) 7 MJSC 121 at page 133, para G.

However, in the absence of a written contract of employment, either of the parties could abrogate the contract on a week’s or a Month’s notice, or on payment of salaries in lieu of such notice.

Be that as it may, it should be noted also that a master can terminate the employment of his servant, at any time, and for any reason, or for no reason at all. Provided the termination is in accordance with the terms of the contract of employment, the motive for such termination is irrelevant. See the case of Osianya vs Afribank Nig Plc. (2007) 6 NWLR (PT. 1031) 565 SC.

Both parties have laid tangible evidence to prove their case, and in other to come to a just determination of this case, recourse should be made to the documents, and oral evidence before the court.

A cursory look at the documents, which form evidence in this suit, stipulates that the Claimant was first issued Exhibit A2, on the 23^rd of October 2013, suspending him indefinitely, on the grounds of occurrence of fraud due to his inability to produce an acceptable receipt to liquidate money advanced to him. The suspension was however to allow the defendant investigate the said case.

On the 11^th day of December, 2013, he (claimant) was issued with Exhibit A6, titled Re- Query on long term Unliquidated advance of N250,000.00, to which the claimant responded to vide Exh A3, dated 17^th December 2013.

Exhibit C, is the minutes of the meeting conducted by the Defendant, where questions were put to the Claimant over the allegation of non-payment or non-liquidation of the sum of N250, 000.00. from the document, the claimant was present at the meeting, questions were put to him, the defendants even took further steps to call the Mrs. Bose, whom the Claimant alleged to have paid, the money to, whereas, the said Mrs Bose denied having received such money, and explained that it was the claimant who came to appeal to her to release receipt, that he had spent the money to which she refused. The claimant by that same document, was given till Wednesday 9^th October 2013, to provide a supporting document to corroborate the payment, or refund the defendant, on Thursday 10^th October 2013. The interesting part of this story is that the Claimant signed this document.

Failure of the Claimant to produce such document or refund the money as stated above, the defendant issued him with Exhibit D, terminating the employment of the Claimant on the grounds of Gross Misconduct.

For ease of reference, I shall reproduce the contents of Exhibit D hereunder;

“This is with reference to your suspension in respect of the unretired advance released to you meant for payment of CRS electricity bill.

CRS has found you management of CRS resources in this respect, unacceptable and amounting to gross misconduct and serious negligence……”

Suffice it to mean that the above was the reason why the employment of the claimant was terminated. At this point, I must also make haste to remind us that it is trite law that gross misconduct is whatever the employer, describes as gross misconduct.

Gross misconduct is a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee.” See the case of U.B.N. Plc v. Soares(2012) 11 NWLR [Pt. 1312] 557 at 575-599

In the instant case, what other evidence do I need to show me that the claimant was actually given an opportunity to defend himself?

Clause 6(4) of the Employee Handbook tendered by the Claimant states that

a) “Termination due to a major offence resulting in asummary dismissal can take place without notice in accordance with the provisions of this manual; suchemployees will not receive any separation benefit”..

See alsoArticle 3.1(6) of the HR Manual ‘DISMISSAL’ which states “Gross misconduct and serious negligence are grounds for dismissal. Summary dismissal may be effected by CRS Nigeria without Notice at any time for such offences.”

I wonder what the claimant intended to achieve by trying to convince this court that he was not given fair trial. By the terms and conditions of the employment of the claimant, anyone who is found guilty of the gross misconduct, is summarily dismissed, and anyone who is summarily dismissed, is not entitled to any severance package, and I so hold.

From all that I have said above, I resolve issue 1 in the negative, and in favor of the defendants.

ON ISSUE 2,

The defendant has laid tangible evidence before this court to prove the fact that the Claimant is indebted to her in the sum of N250, 000.00, being money advanced to the claimant to pay the electricity bill of the defendant. See Exhibit C.

The claimant has put nothing before this court to prove whether or not he made the payment to the PHCN. The claimant has only been silent on this issue, whilst pursuing his own claims.

Based on the foregoing, I have no doubt in my mind to answer issue 2 in the affirmative, and also in favor of the Defendants.

Consequently, and for all the reasons given above, I find no merit in the Claims of the Claimant, However, Claim 8 succeeds, and is hereby granted and ordered while all other Claims of the claimant fails, and is accordingly dismissed. The Counter claim of the defendant succeeds in its entirety, and same are hereby granted and Ordered by this Court.

Judgment is entered accordingly.

……………………………………………..

HON JUSTICE M. N. ESOWE