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MR BUCKY UFUOMA AGARRY -VS- LONESTAR DRILLING NIGERIA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP:  JUSTICE I.S. GALADIMA

 

Date: 4th December, 2018.                          SUIT NO: NICN/PHC/109/2013

BETWEEN:

MR BUCKY UFUOMA AGARRY                                                   CLAIMANT                                                                                      

AND

LONESTAR DRILLING NIGERIA LIMITED

ERNEST ASAK                                                                                      DEFENDANTS                              

                                             

REPRESENTATION:

–          V.C, MENKITI for the Claimant.

–          M.B.R. UROMBO (SAN) with C.U. UMEONAKU, C.M. UCHE for the Defendants.

JUDGMENT

The Claimant’s suit was filed in this Court by a complaint on the 4th of December, 2013 for the following reliefs:

  1. (A) A declaration that the purported dismissal of the Claimant from the services of the 1st Defendant by an unsigned letter dated 19/5/2006 but with the name of the 2nd Defendant typed thereon on the basis of findings by the Audit Committee without giving the Claimant opportunity to defend himself for whatsoever is illegal, irregular, wrongful, unlawful, unconstitutional, null and void, and of no effect, in that:
  2. i)It is against the principle of natural just (sic) equity and good conscience.
  3. ii)It is a breach of the letter of appointment which regulates the claimant’s conditions of service with the 1st Defendant.

(B)     A declaration that the Claimant is still in the employment of the 1st Defendant and as such is entitled to his salaries and other benefits commensurate with his position from March 2006 till judgment is delivered.

(C)    An order directing the 1st Defendant to pay to the Claimant all his salaries and benefits from March 2006 till judgment is delivered.

  1. (A)     A declaration that the purported dismissal of the Claimant from the        services of the 1st Defendant by an unsigned letter dated 19/5/2006 but with the name of the 2nd Defendant typed thereon is at best termination of the Claimant’s appointment with the 1st Defendant.

(B)     An order directing the 1st Defendant to pay to the Claimant a total      sum of N 977,796.80 particularized as follows:

(i)                The sum of N158, 700 representing one month all inclusive salary in lieu of notice for wrongful and unlawful dismissal in breach of the Claimant’s appointment letter dated 16th August, 2004.

(ii)             The sum of N660,396.80 representing arrears of salary of March 2006 –June 2006 at 158,700 per month and from July 1 – July 5 2006 at N 25,596.80 for 5 days.

(iii)           The sum of N158,700 representing leave allowance for the 2006.

Accompanying the complaint is the statement of facts, the list of Claimant’s witness(es), and the list of the Claimant’s documents together with copies of the documents. In reaction, the Defendants entered conditional appearances and also filed their statement of defence on 17th December 2013, against which the Claimant filed a reply to the statement of defence on 18 March 2014 albeit out of time.

FACTS OF THE CASE:

The Claimant was employed by the 1st Defendant in August 2004. His employment was confirmed on 16 March, 2005. About a year later on 22 March 2006, he was suspended from work without pay by a letter dated 21/3/2005. In April 2006, the 1st Defendant invited him for a chat with its Audit Committee and thereafter on 5/7/2006, the Claimant received his dismissal letter via courier. The letter was not signed but the name of 2nd Defendant was typed on it.

HISTORY OF CASE:

This suit was originally filed at the Rivers State High Court by a writ of summons filed on 13th September 2006. Following the Third Alteration of the 1999 Constitution, the Defendants filed a preliminary objection necessitating the transfer of this case by the Chief Judge of the River State High Court upon the order by Cheychey J. on 14 March 2013 to the National Industrial Court of Nigeria. On the 14th of March, 2018, this Court had in a ruling, struck out the name of the second Defendant having found that he was misjoined.

THE CLAIMANT’S CASE:

Upon the settlement of pleadings between the parties, the Claimant’s case was opened on the 5th of May, 2018. The Claimant, Mr. Agarry, testified on his own behalf as CW1 by adopting his written statements on oath as his evidence in chief. A total of 9 exhibits lettered Exhibits C1 to C9 were admitted. He was duly cross examined by Counsel to the Defendant on the same day and thereafter closed his case. The list of the documents tendered by the Claimant is as follows:

  1. Exhibit C1 – ICAN Certificate dated 10/4/2003.
  2. Exhibit C2 –Letter of Interview dated 8/7/2011.
  3. Exhibit C3 –Letter of employment dated 16/8/2004
  4. Exhibit C4 –letter of confirmation of employment dated 16/3/2005
  5. Exhibit C5 –internal memo of suspension dated 21/3/2005.
  6. Exhibit C6–internal memo of invitation to chat dated 20/4/2006
  7. Exhibit C7 –letter of dismissal dated 19/5/2006
  8. Exhibit C8 – application for annual leave for 28/9/2005
  9. Exhibit C9 – salary slips for October 2004, January 2005 – March 2005, July 2005 – December 2005, January and February 2006.

At the close of the Claimant’s case, the Defendant’s counsel, C.M. Uche informed the Court that the defence witness could not be secured to attend hearing, and so the defendant was resting its case on the Claimant’s. Consequently, hearing was concluded by the 10th day of October 2018. The Claimant’s counsel was ordered to file his written address within 14 days, and the Defendant’s counsel directed to file a Reply on Points of Law if so inclined. The Claimant’s written address was filed on the 2nd day of November 2018. Thereafter, the Defendant filed a Reply on points of Law on the 5th day of November 2014. They adopted their respective written addresses on the 12th day of November 2018. The case was adjourned to today for judgment.

CLAIMANT’S FINAL SUBMISSIONS:

The Claimant’s Counsel, in his written address isolated a lone issue for determination thus:

  1. Whether from the evidence adduced before this Honourable Court the Claimant has satisfactorily shown that he is entitled to his claims as contained in this suit?

On this sole issue, counsel submitted that the Claimant has discharged the burden of proof placed on him by the law by adopting his deposition and furnishing documentary evidence to show the employment relationship between the parties, the remuneration he received and the events leading up to the service of the unsigned dismissal letter. Reliance was placed on section 131 – 133(1) Evidence Act 2011 and the following cases:

  1. Akande v Adisa (2012) 15 NWLR (pt 1324) 538
  2. B.E.G.H Ltd v U.H.S. Ltd (2011) 7 NWLR (pt 1246)247 at 250-2

Regarding exhibit C7, counsel argued that an unsigned document is of no moment and lacks probative value – A.G Abia State v Agharanya (1999) 6 NWLR (pt 607) 365, and A.G. Kwara v Alao (2000) 9 NWLR (pt 671) 88. It was argued further that the Claimant proved credibly that his dismissal was wrongful, null and void, on the basis of exhibit C7 which was not disproved by the defence indicating that the evidence was not challenged by the Defendant, the effect of which is that the evidence can be relied upon in proof of the claims in this suit. See Egbunike v ACB Ltd (1995) 2 NWLR (pt 375) 34 at 55.

In conclusion, counsel urged the court to enter judgment for the claimant with substantial costs because he has discharged the evidential burden of proof imposed by the Evidence Act 2011, per Abacha Foundation v UBA Plc (2010) 2-3 MJSC 107.

DEFENDANT’S FINAL SUBMISSIONS:

The learned silk, counsel for the Defendant on record, also formulated one issue for the determination in this case as follows: Whether upon the pleadings and preponderant evidence before this Court, the Claimant has  proved  his case against the Defendant to entitle him to judgment and in all events, whether he is entitled to the main or alternative reliefs claimed by him in law.

In his argument, learned counsel argued that parties are bound by their pleadings and evidence led on facts not pleaded goes to no issue. That section 131 – 134 of the Evidence Act fix the burden of proving the positivity of any fact, on the Claimant who had in the instant case, failed to do such. Counsel believes that this entire suit is a gold digging exercise and an abuse of court process instituted to harass the Defendant. Several judicial authorities were cited for the above assertions including:

  1. CBN v Igwilo (2002) 4-5 SC 144 at  190-2
  2. Ntuk v NPA (2007) 5-6 SC 1 at 26-7
  3. CBN v Ahmed (2001) 87 LRCN 2035 at 2089.

Also, it was further contended by Counsel that from the Claimant’s pleadings the thrust of this case hinges on the breach of fair hearing by the Defendant’s Audit Panel who invited the Claimant for a chat. This accordingly, was not proved considering exhibit C6 which clearly specified the subject matter of the chat and the testimony of the Claimant wherein he admitted he appeared before the panel to defend himself. As such, it is submitted that he cannot be heard to say he was not granted fair hearing. See Duke v Government of Cross River (2013) 1-2 SC (pt IV) 34 and Darma v Ecobank (2017) 2 SC (pt 1) 51 at 79. Furthermore, counsel asserted that exhibit C5 and C6 show that the case the Claimant was to answer before the Audit Panel was clear and specific that is, whether his clearance and approval of invoices for payment in the company followed due process and apart from the invitation given to him to appear before the panel to defend himself, the Claimant swore by his statement on oath and further admitted under cross examination that he indeed appeared before the panel. He and the panel members discussed the allegation of fraud extensively. He also pointed out to them that he proffered solutions to the leakages in the system which enabled the large scale frauds being perpetrated against and suffered by the Defendant to be committed. He also admitted that he failed in his duty to take care of them as the internal auditor of the company. It is counsel’s opinion that  the Claimant was afforded  fair hearing before he was dismissed, more so, as the dismissal of the Claimant was based on the allegation of clearing invoices without due process against him which necessitated his suspension. The fact about his inability to testify before the Panel was not pleaded. Thus, evidence adduced to the contrary indicates that the Claimant is lying, making his evidence unworthy of belief without any probative value – see Mogaji v Cadbury (1985) 7 SC 59 at 1.

Applying the above decisions to the Claimant’s case, counsel submitted that his claim of want of fair hearing prior to his dismissal is completely non sequitur, meaning that his relief and case founded on it should be dismissed. According to Counsel, the Claimant failed to prove his case and thus not entitled to judgement against the Defendant as the law still remains that our courts are not charitable organisations and as such do not determine matters based on sentiments, or can it grant the Claimant any relief which was not established. See Osakwe v Federal College Of Education (Technical) Asaba and 2 Ors (2010) 2-3 SC pt III 158, Udosen v State (2007) 1-2 SC 27.

 

It was further argued that as shown by the pleadings in this case, the relationship between the parties is that of a master and servant and so an order of reinstatement is impossible to grant as he cannot be imposed on an unwilling employer contrary to law. It is Counsel’s further assertion that reliefs 1(A), (B), and (C) cannot be granted by this court, in line with the decision in Gamba v Kwara State Investment Ltd (2005) 5 NWLR (pt 917) 160, which in effect means that all other reliefs being ancillary to the first relief will automatically fail.

Learned Counsel submitted on that the relief of deeming the letter of dismissal to be termination cannot be granted, because the Court cannot amend the said document. So the only option open to the Claimant is to discharge the burden of proving that his dismissal was wrongful. He submitted further that the claim of salary arrears for the period that his suspension was given without pay cannot be sustained owing to the fact that the Claimant admitted under cross-examination that he was suspended for investigative purposes and the failure to challenge the said suspension means he cannot claim salaries for the period the suspension lasted.

Again, it was extensively argued that the failure to defend this action does not imply that the defence was abandoned, in view of the fact that the defendant cross-examined the Claimant and elicited evidence particularly exhibits C5, C6, C7 and C8 in support of the defence. The Claimant had not filed a Reply to the statement of Defence making all unchallenged averments in the Defence admitted. See INEC v Ifeanyi (2010) 1 NWLR (pt 1147) 98 at 118, H and Goji v Paye (2003) 8 NWLR (pt 823) 583 at 611.

 

COURT’S DECISION:

I read the Learned Counsel’s briefs in addition to painstakingly considering all the processes filed in this suit. It is my view also the single issue to be resolved in this case is this: whether the Claimant is entitled to the reliefs in this action?

Before going into the merit of the case, there is the need to remark on the first relief (1(A), (B) and (C)) of the Claimant’s case. The said Reliefs seek inter alia for a declaration that the dismissal of the Claimant from his employment with the Defendant is “illegal, irregular, wrongful, unlawful, unconstitutional, null and void, and of no effect”. Relief 1(B) seeks for a declaration that the Claimant is still in the employment of the 1st defendant and relief 1(C) is for an order directing the 1st defendant to pay to the claimant all his salaries and benefits from March 2006 till judgment is delivered.

The question to be asked here is this: Can a dismissal be both wrongful and null and void?

The Supreme Court in BCC Plc v. Ager (2010) 9 NWLR (Pt. 1199) 292 distinguished between a wrongful dismissal and one that is invalid or null and void. From the reasoning of the Supreme Court, where a Court makes a finding of wrongful dismissal, a payment in lieu of notice will apply but where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination as what the employer did was a nullity before the law.

In fact, it is only a dismissal from a statutory flavoured employment that can be declared null and void. A dismissal under a master and servant relationship can only be declared wrongful. Therefore, a dismissal cannot be both wrongful and null and void.

The Supreme Court again in Osisanya v. Afribank Nig. Plc (2007) 6 NWLR (Pt.1031) 565 held that: “It need be stressed and this has long been settled, that in a Master and Servant relationship, a dismissal of an employee by the employer, cannot be declared null and void and of no effect whatsoever. The remedy as is also settled, is an award of damages, where the termination or dismissal, is held to be wrongful.” Per OGBUAGU, J.S.C. (Pp. 25-26, paras. G-B).

 

Therefore, relief 1 (A) cannot be granted as a whole. Consequently, reliefs 1 (B) and 1 (C) must fail as well more so as a declaration that the Claimant is still employed after a purported dismissal goes against the reasoning of a plethora of judicial authorities to the effect that an employer reserves the right to dismiss an employee with or without reason. See Arinze v. First Bank (Nig.) Ltd (2000) 1 NWLR (Pt. 639) 78 at 102.  

 

The alternative reliefs of the Claimant appear to be based on the probative weight of Exhibit C7. Learned Counsel for the Claimant has made comprehensive submissions to persuade me to ascribe no probative weight to the unsigned letter of dismissal dated 19/5/2006. That is why the Claimant has asked for the dismissal to be treated as a termination. While it is true that an unsigned document is generally lacking in evidential value, there are exceptions to this general rule. In some instances, such unsigned documents may carry some evidential weight. Ordinarily, the requirement for signature on a document is to confirm its authenticity and authorship, and nothing more. A look at the said exhibit reveals that it is a typed document on the 1st Defendant’s letterhead, with the date of 19th May 2006 clearly, written on top of it, and stated to be made by Mr. Ernest Asak, the initial 2nd Defendant in this suit.

Even though exhibit C7 is not signed, I do not believe that its authenticity or authorship can be questioned because the Claimant in paragraph 16 of his Statement of facts clearly averred that the letter was sent to him by courier through DHL. The invoice of the shipment bill clearly indicates the 1st Defendant as the sender. Can it be said that this exhibit C7 did not emanate from the 1st Defendant?

There is frankly no doubt that the 1st Defendant intended to dismiss the Claimant from its employ since he was not even recalled from his suspension. I find and hold that the Claimant was dismissed from his employment on 5/7/2006 the day he received his dismissal letter.

Besides, if for nothing else, the averment of the Claimant in paragraph 15 of his pleadings is helpful in this regard which states that he was not recalled from suspension after his chat with the Audit Panel. His non recall to his employment leads to the irresistible conclusion that by exhibit C7, the Defendant sought to put an end to the employment relationship by dismissing him. Even if I find for the Claimant and disregard exhibit C7, the indisputable fact still remains that the Claimant was suspended indefinitely. Such indefinite suspension to my mind is tantamount to a constructive dismissal.

The case of Ilodibia v. N.C.C Ltd (1997) 7 NWLR (Pt. 512) 174, is instructive here. In this case, the Supreme Court upheld the finding of the trial Court that the indefinite suspension of the plaintiff amounted to constructive dismissal, and held at page 188 D to E that:

“Where the master has purported to dismiss the servant, even though not in accordance with the laid down procedure in the contract, the servant cannot treat the contract as still subsisting but must proceed as if he has been wrongfully dismissed. A wrongful dismissal in complete disregard of the terms of the contract of service is obviously a repudiation by the master and the servant’s remedy is in action for damages only”

 

What is more, it is implied that a Claimant suing for wrongful dismissal has put an end to the contract of employment himself, and assuming such a person is wrongfully dismissed, all he can get are damages up to the time of his action not up till the time of judgment. It is therefore absolutely impossible to regard this dismissal as a termination. Instead, what must be determined is whether this dismissal was wrongful or not?

At this stage, the relevant questions are: is the Claimant entitled to any damages? If yes, what quantum of damages should be awarded to the Claimant?

Undoubtedly, the contract between the parties in this case was severed by an unsigned letter. The law is settled in this area that a servant can be dismissed if his/her master is satisfied that the servant did something against the employer’s interest. See Eze v Spring Bank Plc (2012)All FWLR (pt 609)1076 at 1106, but once a reason is given by the employer for dismissal, such reason must be proved to the satisfaction of the Court. In I.H.A.B.U.H.M.B. v Anyip (2011) 12 NWLR (pt 1260) 1 at 19, E-F, the Supreme Court held as follows:

“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, he is obliged to satisfactorily prove same as the onus is on him in that regard, otherwise the termination/dismissal may constitute wrongful dismissal without more.”

Similarly in Eze v Spring Bank Plc (supra)at 1099, it was held as follows:

“although an employer is not otherwise required to give any reason for a dismissal, but once any reason is given at all as here, it has to be shown at a trial as the instant one that the employer has good grounds for the dismissal and if it so showed then the employer has provided a complete defence to the action of wrongful dismissal.”

 

In other words, the burden of proving the validity of the dismissal is on the Defendant in this case. This brings me to a vital point in this case which is the failure of the Defendant to adduce evidence to support its pleadings. The Defendant filed its statement of defence on the 17th December 2013, and contrary to the position of the Defendants’ Counsel, the Claimant did in fact, file a reply to the statement of defence on 18th March 2014. Thus, all his submissions regarding the effect of not filing a Reply to their defence is hereby discountenanced. The Defendant failed to testify in proof of its averments in the Defence. Learned Counsel for the defence, C.M. Uche on the day adjourned for the opening of defence informed me of the Defendant’s decision to rest its case on that of the Claimant.

The implication of this decision is that the Defendant’s pleadings have been abandoned, because pleadings do not constitute evidence – see Inua v F.B.N. Plc (2016) 2 NWLR (pt 1495) 89 at 110, B-D. It is my considered view that the Defendant failed to discharge the burden of proving that the dismissal of the claimant is justified, and it failed to furnish a complete defence to the claim for wrongful dismissal. However, this does not translate to an automatic victory for the Claimant, because the absence of evidence by the Defendant does not discharge the legal burden of proof placed on the Claimant by section 131 (1) and (2) of the Evidence Act 2011. seeIbrahim v Ojomo (2004) 4 NWLR (pt 862) 89. The Claimant must adduce credible and sufficient evidence to succeed in his action. Uncontroverted evidence does not simpliciter mean credible evidence, per Akalonu v Omokaro (2003) 8 NWLR (Pt 821) 190.

 

The Claimant is asking for his one month salary in lieu of notice because the Defendant breached his appointment letter. He is also seeking arrears of salaries for the period he was suspended in addition to leave allowance. The Learned Silk in his address vehemently opposed the grant of these reliefs for many reasons. With due respect to him, his submissions and arguments, no matter its persuasion, can never take the place of credible and unchallenged evidence adduced by the other party. See – NITEL Ltd v Okeke (2017) 9 NWLR (pt 1571) 439 at 463, B. The nature of the evidence presented by the Claimant in proof of his case are mainly documentary. His dismissal letter was tendered as exhibit C7. This letter dismissing the Claimant reads in part from the first paragraph:

“This formally conveys to you management’s decision to dismiss you from the company’s employ with immediate effect. This is sequel to the Audit Committee’s findings which indicted you on diverse issues.” Emphasis mine.

The reason for the Claimant’s dismissal is clearly stated to be subsequent to the findings of the 1st Defendant’s Audit Committee. I find and hold that this reason having been stated was not justified at the trial in the instant case, and the dismissal of the Claimant by the letter dated 19/5/2006 and served on him on 5/7/2006 was indeed, wrongful.

The implication of suspending an employee is that he/she is not allowed to do anything in discharge of his/her duties to the employer for such period – Abenga v Benue State J.S.C. (2015) 56 NLLR (pt 192) 342 at 358 E-H. It is not a severance of the contract of employment and all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. An employee’s salary becomes due and his right to it is vested at the end of each month. Such vested right to his salary cannot be denied. See: Udegbunam v. FCDA (2003) 10 NWLR (Pt. 829) 487 SC and Underwater Eng. Co. Ltd v. Dubefon (1995) 6 NWLR (Pt. 400) 156.Thus, any earning proved to be due to the Claimant in the instant case but not paid by the Defendant, shall be granted.

The Claimant averred that the last salary he received was for February 2006. He tendered his salary slips as exhibit C9. He also tendered exhibit C3, which indicated his annual salary to be N1,440,000 per annum. Paragraph 5 of the same exhibit reads that the Claimant “shall be entitled to an annual leave period of one month, plus a leave allowance equivalent of one month’s salary”. These pieces of evidence remain unchallenged and are worthy of belief. I find and hold that for the months of March, April, May, and June of 2006, the Claimant was not paid any salaries. Also, having found that the dismissal of the Claimant was wrongful, he is entitled to one month salary in lieu of notice of the Defendant’s decision to sever the employment contract with the Claimant.

To be clear on the orders I just made, and having found the dismissal of the Claimant to be wrongful, I hereby declare in favour of the Claimant against the Defendant as follows:

  1. A declaration that the dismissal of the Claimant was wrongful.
  2. The sum of N634,800.00 (Six Hundred and Thirty-Four Thousand, Eight Hundred Naira only) as salary arrears for the months of March, April, May and June of 2006 at N158,700.00 per month.
  3. The sum of N158,700.00 (One Hundred And Fifty-Eight Thousand, Seven  Hundred Naira Only) as one month salary in lieu of notice for wrongful dismissal.
  4. The sum of N158,700.00 (One Hundred And Fifty-Eight Thousand, Seven Hundred Naira Only)as leave allowance for 2006 equivalent of one month salary.
  5. The sum of N 200,000 (Two Hundred Thousand Naira Only) as cost of this suit.
  6. Order the Defendants to pay the Claimant, the total sum of N 1,152, 200.00  within 14 days of this here judgment which shall attract interest at 10% per annum until fully paid.

This suit succeeds in part only and I so pronounce.

Judgment is entered accordingly.

Delivered in Owerri this 4th day of December, 2018.

Justice Ibrahim S. Galadima,

Presiding Judge.

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