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Tijani Kolade -VS- MDS Logistics Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                                          IN THE OWERRI JUDICIAL DIVISION

                                                      HOLDEN AT OWERRI

                       BEFORE HIS LORDSHIP HON. JUSTICE I.S GALADIMA

DATE: 22nd JANUARY 2020                                                      SUIT NO: NICN/OW/41/2017

 

BETWEEN:   

TIJANI KOLADE   …………………………………. CLAIMANT

AND

MDS LOGISTICS LTD   ………………………….. DEFENDANT

 

REPRESENTATION:

  • Salman Daibu for the Claimant.
  • Musa A. Tolani, A. S. Emodi, Eze Imedi and N.J Iragunima for the Defendant.

JUDGEMENT:

The facts of this case are that the Claimant was an employee of the Defendant for a period of 15 years before his dismissal which was purportedly as a result of shortfalls found in the stock inventory amounting to a deficit of 12.9M (Twelve Million, Nine Hundred Thousand Naira only). The Claimant, purportedly as Store keeper, had undertaken an inventory of the Defendant’s pharmaceutical warehouse on the 10th of September, 2016 in the presence of one Mr. Azubuike Osuji, the Customer Service Officer who also endorsed the inventory report on the 13th of October to be correct and was later sent to the depot manager Mr. Ezekiel who confirmed same to be correct. The Claimant’s case is that he was wrongfully dismissed as the procedure taken by the Defendant was contrary to the terms and conditions of his service with the Defendant company and same was not in accordance with the laid down procedures for discipline as contained in pages 29, 30 and 33 of the Defendant’s employee handbook on terms of conditions and service. He was accordingly, not issued with any letter of advice and warning as stipulated in the Defendant’s handbook. Accordingly also, the Defendant company refused to pay the allowances accruable to the Claimant such as annual leave allowance as well as his gratuity which was already processed under his UNICO RSA Pension Scheme in the custody of the Human Resource office of the Defendant. Being aggrieved with the conduct of the Defendant towards his dismissal, the Claimant instituted this suit against the Defendant company on 30/6/2017. The Defendant however counter claimed against the Claimant in their pleadings for the refund of N12.9M and N58,342.06 while denying all the substantive claims made by this Claimant. In response, the Claimant’s Counsel filed a Reply to the Statement of Defence denying liability for the acclaimed sum in the absence of any proper investigation to ascertain the purportedly spurious counter claim.

Consequently, this Claimant’s case was commenced by a way of complaint accompanied with other originating processes dated 28/6/2017 and filed on the 30/6/2017 wherein he claims against the Defendant for the following reliefs:

  1. A declaration that the purported letter of dismissal of the Claimant’s appointment by the Defendant on the 6th day of April, 2017 terminating his employment is null and void.
  2. An order of Court directing the Defendant to pay to the Claimant the sum of N69, 000.00 (sixty Nine Thousand Naira) being the salary for the month of April to May, 2017 and the sum of N69, 000.00 from the Month of June, 2017 till judgment is given in this case and the sum of N69, 00.000 per month till judgment sum is liquidated.
  3. An order of Court directing the Defendant to pay to the Claimant all the allowances/entitlements accruable to the Claimant including annual leave of N88,000.00 (Eighty Eight Thousand Naira), the Housing allowance amounting to the sum of N850,000.00 (Eight Hundred and Fifty Thousand Naira), the staff entitlement for the staff contribution as deduction for 15 years amounting to the sum of N5,000,000( Five Million Naira).
  4. An order directing the Defendant to pay to the Claimant N20,000,000 (Twenty Million Naira) as damages for the unlawful termination of the Claimant’s appointment.

CLAIMANT’S CASE:

The Claimant’s case was opened on the 17/10/2018 when he testified as CW1 on behalf of himself and tendered his written deposition and relied on same as his evidence in chief. A total of 5 documents were tendered by him and marked as Exhibit CW1 – 5. He was thereafter cross examined by the Defendant’s Counsel on the same day and also on the 8/11/2018 and closed his case on that latter date.

The documents tendered by this Claimant are:

  1. Exhibit CW1 – Letter of appointment dated 6/4/2002;
  2. Exhibit CW2 –  Letter of confirmation of appointment dated 9/12/2002;
  3. Exhibit CW3 – Defendant’s handbook of terms and conditions of service;
  4. Exhibit CW4 – UNICO RSA pension scheme Statement as at 31/12/2012 ;
  5. Exhibit CW5 – Letter of dismissal dated 6/4/17.

The Claimant thereafter closed his case.

DEFENDANT’S CASE:

The Defendant company opened its defence on the 19/11/2018. DW1 Osuji Azubuike, testified on behalf of the Defendant as its first witness by tendering his deposition made on the 21/2/2018. He adopted and relied on it as his evidence in chief. He tendered a total of 8 exhibits which were all admitted in evidence. He was later cross examined by the Claimant’s Counsel on the same day.

The documents tendered by DW1 are:

  1. Exhibit D1 – A handwritten inventory report of EMZOR pharmaceuticals products  based on print out of 19/10/2016 prepared by the Claimant and Mr. Osuji Azubuike.
  2. Exhibit D2 – internal memo dated 26/10/2016 requesting the Claimant to explain the shortage of 5 cartons of Emzor products in the warehouse.
  3. Exhibit D3 – internal memo/follow up query letter dated 6/2/2017 written by the Defendant to the Claimant instructing him explain why there was a huge loss of products in the warehouse.
  4. Exhibit D4 – Response to query by the Claimant dated 4/11/2016
  5. Exhibit D5 (a) (b) (c) – Defendant company reports accompanied by duty reports presented by Ogbonna Ezuma (Exhibit 5 (a)); Onyekachi Onyekwere (Exhibit 5 (b)); and Wisdom A. (Exhibit 5 (c)).
  6. Exhibit D6 – Response to query letter by Claimant dated 4/11/2016.
  7. Exhibit D7 – Report of police investigation dated 23/12/2016.
  8. Exhibit D8 – Specimen signature of D.W.1.

The Defence fielded their second witness one Loveth Chukwunonye (Assistant Depot Manager, who testified as DW2. She adopted her deposition dated and filed 21/2/2018. She tendered a total of 4 documents marked Exhibits D9, D10, D11 and D12 respectively. She was duly cross examined by Counsel to the Claimant on the same day after which they closed their case.

The documents tendered by DW2 are:

  1. Exhibit D9 – Inventory report/Hand over notes of Emzor/Hesco prepared by the Claimant dated 14/10/2016.
  2. Exhibit DW10 – Inventory list of Emzor pharmaceutical products dated  25/10/2016;
  3. Exhibit DW11 – internal memo written by the Defendant to the Claimant dated 3/11/2016.
  4. Exhibit DW12 – Dismissal letter dated 6/4/2017.

Subsequently, the respective Counsel filed their final addresses and adopted same on the 13/11/2019 consequent upon which the suit was adjourned to today for pronouncement of this here judgment.

Curiously, the Claimant’s Counsel filed his final address first when the Defendant’s Counsel defaulted in taking advantage of the period given to him to file his address and submissions. Consequently, the Claimant’s Counsel by the rules of this Court, has a right of reply on points of law.

CLAIMANT’S FINAL SUBMISSIONS

The Claimant’s final written address was filed on the 11/3/2019 wherein three issues were raised for determination:

  1. Whether the summary dismissal of the Claimant’s employment by the Defendant was lawful and in accordance with the laid down procedures under the terms and conditions of service contained in the handbook of the Defendant’s company.
  2. Whether the Claimant is entitled to the reliefs claimed and damages in this suit.
  3. Whether the Defendant is entitled to its Counter Claim.

On issue number one, Mr. Daibu stated that there is existence of a valid contract of employment between the Claimant and Defendant as can be seen in Exhibits C1, C2, and C3 — which is the Defendant’s handbook on terms and conditions of service between the Claimant and the Defendant.

It was contended that CW1 was never discredited in any way under cross examination but that the DW1 however, under cross examination informed this Court that he was a Customer Service officer of the Defendant but had contrarily, deposed as a Depot Manager in his written statement on oath and thus invariably lied to the Court that he was not a Depot Manager. This accordingly, casts aspersions as to the credibility of DW1 as an honest witness.

It was submitted that under cross examination again, DW1 had admitted that a panel was set up by the Defendant on the allegation of fraud and stealing of 5 missing cartons of Emzor products belonging to the Defendant against the Claimant after the query was issued to the Claimant and his response in Exhibit D3 and D4 but admitted the findings of the panel was based only on Exhibit D7, the police investigation report.

It was submitted that DW1 had furthermore stated under cross examination, admitted that him and the Claimant were not present at the panel. DW2 however, contradicted DW1 under cross examination that several investigators were called in to investigate the allegation of fraud and stealing of 5 missing Cartons of Emzor products alleged against the Claimant by the Defendant and it was based on the findings by the investigators, that the Regional Manager issued a query to the Claimant. Learned Counsel submitted further that DW2 again contradicted DW1 when she stated that the Defendant need not set up any panel on any allegation of fraud or misconduct against any employee. That this was obviously a repetition of what is contained in the statement of defence and the written testimony of DW2.

It was further submitted that there was inconsistency and contradiction in the testimonies of DW1 and DW2 on material facts before the Court and as such, must bought be regarded as unreliable witnesses — MOGAJI V. CADBURY (NIG) LTD. (1985) 2NWLR (PT.7) 393.

He submitted further that from the evidence of DW1 and DW2 before the Court, the Defendant did not follow the proper procedures before terminating the employment of the Claimant in view of the nature and gravity of the allegations made against him. This was purportedly contrary to the laid down guidelines for dismissal and termination an employee as provided in exhibit C3 — the terms and conditions contained in the Defendant’s employee handbook especially pages 29, 30 and 33 of the Exhibit C3. The relevant portions of the handbook were accordingly not followed before dismissing him, chided the Claimant’s Counsel.

It was further submitted that a letter of dismissal must state the reason for the dismissal. This is because unlike termination, the employer may only dismiss for a proven misconduct.

Accordingly, from the  totality of the evidence before the Court and in the defence of the Defendant, there was nothing to show that the Defendant followed the proper procedure in accordance with the provision of Exhibit C3. Besides, argued Counsel, there was no evidence before the Court suggesting or establishing the findings of any panel set up for hearing of the misconduct against the Claimant. As such the Claimant is entitled to his privileges including his entitlements and allowances.

Counsel further submitted relying on the case of CALABAR CEMENT CO. LTD V. DANIEL (1991) 4 NWLR (PT. 188, 750 at 760), that where there exists a condition of service and a procedure for termination of an employment as in the instant case, it will be premature to dismiss an employee without following the said procedure. There is therefore every need to follow the laid down procedure in the conditions of service strictly before terminating an employment, said Counsel.

Mr. Daibu submitted further that a document relating to contract of employment must be read as a whole without admitting any gaps to its original import. He cited the case of LAYADE V. PANALPINA WORLD TRANSPORT NIGERIA LIMITED (1996) 6 NWLR pt 456. Learned Counsel also submitted that the general rule is that where parties have embodied the terms of their agreement or contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument — LAYADE V. PANALPINA WORLD TRANSPORT NIGERIA LIMITED (1996) 6 NWLR pt 456 (supra). See also CHUKWU V. NITEL (1996) 2 NWLR PT. 430 at 253 -377.

He argued that in the instant case, this Defendant did follow the laid down procedures for terminating the appointment of the Claimant as provided in page 33 of the terms and conditions of service as contained in the handbook. The Claimant is thus entitled to succeed in this action.

On issue number two, learned Daibu submitted that the Claimant has shown that he is entitled to the reliefs sought as stated in both the Claimant’s Statement of facts and his statements under oath. By the provision of the National Industrial Court Rules under Order 30 Rule 6 (1) & (2), the Defendant has not made any specific denial of the facts and figures in the Claimant’s pleadings and the reliefs sought as to the entitlements and the allowances accruable to the Claimant. This accordingly amounted to admission of those facts.

He cited and relied on Section 123 of the Evidence Act and submitted further that the Defendant’s failure to join issues with the material facts presented by the Claimant, tantamount to the Defendant admitting those facts — NIGERIA BOTTLING COMPANY PLC V. DAVID OKAFOR (2012) FWLR PT 647 AT PAGES 766 paragraphs 766.

He submitted that from the forgone submission, it shows that the omission in the statement of defence to successfully attack or challenge the reliefs sought by the Claimant in this suit or to discredit same under his cross examination, was not borne out of default but a clear manifestation of the intention not to join issue on the specific claims of the reliefs sought by the Claimant.

Learned Counsel submitted on that one important aspect of the Claimant’s claim is a claim in exemplary damages as shown in paragraph D of the relief sought in the statement of facts and the written statement on oath of the Claimant.

He further stated that Abubakar Sadiq Ogwuchi in Compendium of Law II, 2nd Edition, page 968 and 969 described aggravated and exemplary damages thus:

“Aggravated damages may be awarded if the Courts wishes to express disapproval of the Defendant’s behavior as a result of which the Claimant has suffered more than would normally be expressed in the situation. Such damages may be awarded when the Defendant persists in denying liability despite clear evidence to the contrary and warning by the judges. See KHODAPARAST V. CHAD (2000) 1 WLR 618 (2000) 1 ALL ER 525, NWANKWA V. AJAEGBU (1979) 8 LAN 23”.

Accordingly, in CENTRAL BANK OF NIGERIA & ORS v. OKOJIE (2015) ALL FWLR pt 807 pg 478 at 506 paragraph B-C the Supreme Court stated the purport of award of exemplary damages and when it was proper to make it thus:

“Exemplary damages are awarded with the object of punishing the Defendant for his conduct of inflicting injury on the plaintiff. They can be made in addition to normal compensatory damages and should be made only:

(a)  In a case of oppressive arbitrary or unconstitutional act by the government servant.

(b) Where the Defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff.

(c)  When it is expressly authorized by the statute.

Counsel therefore submitted that in this case, the Claimant pleaded the facts of the oppressive conducts of the Defendant and also showed how he was unlawfully dismissed by the Defendant and the untold hardship he suffered as a result of the unlawful dismissal of employment by the Defendant and claim for damages. This is the clear case in which exemplary damages ought to be granted.

Again it was submitted that Claimant’s claim which is a liquidated sum of money, remains uncontroverted, unchallenged and uncontradicted this Court is accordingly safe to act on them.

On issue number three Learned Counsel to the Claimant submitted that from the totality of evidence before this Court and the Exhibits tendered, it is clearly shown that the Defendant focused all its strength in contesting the guilt or an indictment of the Claimant before this Court which is outside the jurisdictional purview of this Court over the alleged missing 5 cartons of Emzor products belonging to the Defendant and valued at N12,900,000.00 (Twelve Million Nine Hundred Naira) as the basis of its counter claim in an attempt for this Court to indict the Claimant.

Counsel submitted that in the evidence of the Defendant by DW1, the Defendant never led any evidence on the counter claim and it is the law that the Defendant is deemed to have abandoned his counter claim before the Court, as there was failure to lead credible evidence on same.

It was further submitted that DW1 equally tendered exhibit D5 (a) (b) and (c) respectively which a cursory look at them should show that they were unilaterally made by the Defendant in an attempt to create an impression before the Court that the Claimant is guilty of the allegation of stealing of 5 missing cartons of Emzor products valued at N12,900,000,00 (Twelve Million Nine Hundred Thousand Naira) against the Claimant without tendering any exhibit showing the findings of the Defendants as to culpability of the Claimant in respect of the N12,00,000 being allegedly the value of the purported 5 missing cartons of Emzor products.

It was submitted that Exhibit D7, as tendered by the DW1, was done merely to indict the Claimant before the Court. Exhibit D7 is a public document that ought to be certified as required by the law under Section 104 of the Evidence Act. Accordingly, there is a clear distinction between the questions whether evidence is admissible and the question of its probative value or weight to be attached to it. The fact that the evidence, oral or documentary is admissible does not mean that it has any weight, said learned Counsel. It may not have any probative value or any weight at all although admissible — See (GBAFE V GBAFE) (1996) 6NWLR pt 455, 383-507. It was therefore submitted that no probative value must be placed on Exhibit D7 as it has not been certified as a public document.

Furthermore, learned Counsel added that DW2 also admitted under cross examination that the Claimant has not been declared guilty or convicted by any Court of law as regards the allegation of stealing of 5 cartons of Emzor products valued N12, 900, 000.00 (Twelve Million Nine Hundred Thousand Naira) and would not know if a panel is set up to make findings on the allegation of alleged stealing of 5 cartons missing of Emzor product against the Claimant by the Defendant.

It was further submitted that there were no other material facts before this Court or any exhibit tendered by the Defendant showing the findings of any investigation of the alleged 5 cartons of the missing Emzor product valued N12, 900, 000.00 to justify the Defendant’s Counter Claim as the Claimant vehemently denied same in his reply to the Defendant Statement of Defence and Counter Claim, as such the Claimant is entitled to his allowances entitlements and the counter claim is baseless and frivolous in the absence of any findings indicting the Claimant as to the culpability of the sum of N12, 900, 000.00.

In conclusion, learned Counsel urged the Court to grant the Claimant’s reliefs and dismiss the Counter claim against him.

DEFENDANT’S FINAL SUBMISSIONS

The Defendant’s final written address was filed on the 15/3/2019. Within, two issues were raised for determination thus:

  1. Whether the Claimant’s appointment was unlawfully terminated?
  2. Whether the Claimant is entitled to damages, allowances/entitlements as claimed?

On issue number one, learned Counsel submitted that Claimant’s for a declaration to declare his dismissal as null and void should be discountenanced as there cannot be relief for specific performance like an order of reinstatement. A court cannot impose an employee on an unwilling employer in a master /servant employment, argued Miss Emodi. She cited PATRICK  ZIIDEEH  V. RIVERSTATE CIVIL SERVICE COMMISSION (2007) 29 NSCQR 701 AT P. 728 PER F.I OGBUAGU, JSC AND S.B OLANREWAJU V. AFRIBANK PLC (2001) FWLR (PT. 72) 2008 RATIO 7 where it was stated that “under master and servant employment, there cannot be specific performance of a contract of service”.

It was further submitted that generally, employment falls into 3(three) categories viz:

  1. Master & Servant;
  2. Servant holding an office for pleasure,

iii.              Employment that is governed by statue — S.B OLANREWAJU V. AFRIBANK PLC (SUPRA) RATIO 6

It was further argued that the employment of the Claimant in this suit is that of master/servant. Accordingly, in EZE v. SPRING BANK PLC (2011) 48 NSCQR 125 PER B. RHODES VIVOUR, JSC stated “in cases of dismissal, the fundamental consideration is to examine the contract of employment and see if it is:

  1. Master servant, or one;
  2. Protected by statue or special status

to determine whether the dismissal of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure or whether there was a violation of the elementary rules of natural justice. In such a case, the dismissal is said to be unlawful”.

Counsel referred to Exhibit C1 (Letter of Appointment) tendered by the Claimant witness. On the face of the document, one of the terms clearly spelt out thus:

“If at any time during the period of your employment it becomes evident that your work is NOT up to the standard the company expects of its employee then your employment will be terminated immediately with two weeks salary in lieu of notice. If you desire to leave the company’s service during the trial period, you will be required to give two weeks notice or pay two weeks salary in lieu of notice”.

Learned Counsel to the Defendant argued further that Exhibit C3 which is “handbook” of the Defendant tendered by the Claimant, provides for summary dismissal of an employee on ground of misconduct, the ground upon which the Claimant was summarily dismissed. Counsel quoted paragraph 11:4 on page 33 and argued that the Defendant complied with the provisions of the handbook in that the Claimant was issued a query on the 3rd of November, 2016 apart from other queries issued him to explain the client’s missing stock worth N12.9 Million. He was accordingly heard by a risk and compliance panel regarding the missing products under his care and in the course of his duty as a Customer Service Officer Stores (C.S.O) at the time of the incident. Reference was made to Exhibits C5 and D12 “LETTER OF DISMISSAL” tendered by both parties respectively. The reason for his dismissal was clearly stated on the letter of dismissal.

Counsel submitted that the said allegation of fraudulent misconduct against the Claimant was also investigated by the police as shown in exhibit D7 tendered by the Defendant witness (DW1). Reference was thus made to the police investigation and findings in the said exhibit.

It was submitted that in the case of OYEDELE V. IFE UTH (1990) 6 NWLR (PT. 155) 194 CA, the Court held that in the law of master and servant employment, a misconduct is whatever the employer considers to be a misconduct. Therefore, in an action for breach of contract of employment, all the Court can do is to enquire into the procedure by means of which the servant or employee was dismissed or retired.

It was submitted that by way of procedure, the facts of this case and the compliance of the Defendant as contained in paragraph 11.4 of the Defendant’s handbook, the Claimant was not unlawfully dismissed.

It was argued further that  during the cross examination of the DW2 by Counsel to the Claimant on whether the dismissal of the Claimant was unlawful on the ground that there was no formal trial in a Court of law, the question and answer were baseless as far as a master/servant relationship is concerned as that will only be tenable in an employment with statutory flavour. See OLANREWAJU V. AFRIBANK PLC (supra) Ratio 10.

It was argued further that where an employee has been found guilty by a disciplinary committee for any of the alleged gross misconducts, the employer may either exercise his discretion in favour of prosecuting the erring servant or dismissing him summarily. Thus, prosecution before a court of law in the circumstances is not a sine qua non for summary dismissal. In other words, it is not necessary nor a requirement under the constitution that before an employer summarily dismisses his employee from his service under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving honesty and bordering on criminality. Accordingly, in the case of EZE V. SPRING BANK PLC (2011) 48 NSCQR 125 at p. 143 M. MUHAMMAD, JSC of the Supreme Court stated thus:

“An employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct.”

Gross misconduct has been identified as a conduct that is of grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee. It is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offenses under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal offenses before proceeding to discipline the employee under contract of service of employment”.

It was submitted further that in the case of IMONIKHE V. UNITY BANK PLC (20110 46 (PT.2) NSCQR 554 at P. 570 JUSTICE WAITER S.N ONNOGHEN, JSC held thus:

“To say that whenever an employee is alleged to have committed acts of misconduct in relation to article 5 supra, he must be charged to Court where the allegation is to be proved to the satisfaction of the Court before any disciplinary action can be taken against him despite being issued with queries and his replies thereto is to stretch the principles of fair hearing to an absurd end”.

It was further submitted that by the principles of the above authorities cited, the Claimant was not unlawfully dismissed as claimed in this suit. The procedure applied in his dismissal was in compliance with the rules of disengagement and fair hearing.

It was further submitted that Exhibit D8, the specimen signature of the DW1, be disregarded and expunged from the record as same was obtained by the Claimant Counsel during cross examination without proper foundation and clarity to the witness on signing of signature or appending his name in writing.

Accordingly, by Sections 101 (1) and (2) of the Evidence Act, 2011 which provide:

“In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved or made by that person maybe compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.

101 (2) — the Court may direct any person present in Court to write words or figure or make finger impression for the purpose of enabling the Court to compare the words, figures or impression so written with any words, figures or finger impressions alleged to have been written or made by such person”

Therefore, the Defendant’s Counsel challenges the procedure taken by the Claimant Counsel in requesting that DW1 make his signature in open Court without first telling the Court/witness that he intended to challenge the witness’ signature. That this was accordingly wrong in law following the provision of the Evidence Act.

It was submitted that the question put forward to DW1 by the Claimant Counsel on cross examination was:

Q — ARE YOU THE ONE THAT SIGNED THIS DOCUMENT?

A — The witness affirmed and was asked to sign his specimen signature.

The Claimant Counsel never asked the witness whether he signed the document, wrote his name on, sealed, or made finger impression on the document sought to be tested prior asking him the question.

It was therefore submitted that DW1 never signed his written deposition on oath, but merely wrote his name “Osuji A” on the deponent column and the proper cross examination to compare was his handwriting with the name written on the document and not make any signature. As such, this was done to confuse the witness having regard that the document in question was made a year ago and memory may have been lost on certain facts.

Learned Counsel also submitted that by the provisions of Section 4 of the Evidence Act, 2011 which provides thus:

“facts which though not in issue, are so connected with a fact in issue as to form part of same transactions, are relevant, whether they occurred at the same time and place or at different times and places”.

It was further submitted that DW2 testified under cross examination before this Court that the Claimant was alleged to have been involved in misconduct sometime ago when he was in charge of UAC foods and could not explain the where about of a missing trailer load of ice cream under his care worth N4, 000,000.00 (Four Million Naira) but he got only a warning since no credible evidence was found against him.

On issue two, learned Counsel submitted that by the provisions of the Defendant’s Handbook already before this Court in paragraph 11:4, where an employee is dismissed on grounds of misconduct, all privileges are forfeited. The Claimant is therefore not entitled to any monetary claim against the Defendant.

It was further submitted that the Claimant’s claim in paragraph A – D must fail as the Claimant was lawfully dismissed. Accordingly, he is not entitled to any damages and by virtue of the nature of the misconduct, he is not entitled to any privileges as claimed in respect of the UNICO Pensions which stands forfeited. For added measure, learned Counsel cited GAABA V. LOBI BANK NIG. LTD 2003 FWLR (PT.173) 106 RATIO 2 where an employee used his position to exploit his employer and it was held that the employer is entitled to and has the right to seize and retain the property acquired with such proceeds.

Learned Counsel to the Defendant concluded his submission that the Claimant’s claims are unfounded and therefore must fail.

The Defendant finally believed he is entitled to the Counter claim against the Claimant for the refund of the sum of N12, 900,000 and N58,342.06 excluding the cost of this suit for being frivolous and gold digging.

The Claimant’s Counsel did not file a reply on points of law.

COURT’S DECISION:

After careful perusal of all the submissions and arguments canvassed by the parties’ Counsel, two issues call for determination, thus:

  1. Whether the Claimant is entitled to the reliefs sought.
  2. Whether the Defendant is entitled to the Counter Claim against the Claimant?

From the onset it is pertinent to note that both Counsel have at various times, used the terms “dismissal” and “termination” interchangeably. For instance, in the 1st relief sought by the Claimant in the substantive claim, the Claimant seeks for a declaration that the purported dismissal…by the Defendant on 6/4/2017 terminating the Claimant’s employment is null and void. In the fourth relief sought again, Claimant’s Counsel again seeks for an order directing the Defendant to pay the Claimant the sum of N20M as damages for the unlawful termination of the Claimant’s appointment.

Legally, while both termination and dismissal all imply removal from a particular employment. The consequences may vary. Dismissal may entail loss of benefits while termination may not. I need to emphasize that in a contract of service, parties are bound by the terms of the contract. There is a clear distinction between termination of a contract of employment and a dismissal. Termination gives the parties the right to determine the contract at any time by giving the prescribed period of notice. Dismissal on the other hand, is a disciplinary measure which carries no benefits. It is therefore necessary to stress 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. Thus said, the Claimant’s reliefs numbers 1 and 4 here are impossible of being granted by this Court since the relationship that existed between this Claimant and the Dedendant here was purely a master/servant relationship. I believe that this did not promptly come to the attention of the Claimant’s Counsel.

So, in dealing with the question of whether the dismissal of this Claimant here is wrongful or unfair (as opposed to the use of the term “unlawful” which was employed by his Counsel throughout these proceedings), having already found that the employment between the Claimant and Defendant is that of Master/Servant, I must thereby consider whether the terms contained in Exhibits C1, C2, and C3 were adhered to by the Defendant before the dismissal of the Claimant was effected. The Claimant’s contention was that he was not given fair hearing as the Defendant did not follow due procedure in dismissing him. The law requires the doctrine of fair hearing to be upheld by the employer before any disciplinary action can be taken against him by giving the latter opportunity to be heard as guaranteed under Section 36 (1) of the 1999 Constitution, as amended. But, fair hearing to me has no ‘one size fits all’ approach in dismissals for misconduct because each case must be dealt with differently. And fair hearing is about opportunity to be heard. The authorities are clear on this. For example, once a Court makes a finding that the employee was given ample opportunity to defend himself/herself on the allegations in issue, then such an employee cannot complain of not being given fair hearing. The fair hearing requirement does not insist on oral testimonies so long as the employee had the opportunity to explain himself/herself by way of a query and reply. The common feature running through all the cases cited by either Counsel in this suit, is that the exact nature of the infraction(s), which the employee is expected to answer to, was disclosed to the employee. The concurring judgment of His Lordship Hon. Justice Rhodes-Vivour, JSC in Imonikhe v. Unity Bank Plc is quite emphatic. In the words of His Lordship:

“Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed.

Now, generally the settled principle of law is that an employer is not bound to give any reason for dismissing an employee but in situations where the employer gives reason, the law imposes on him a duty to establish the reason to the satisfaction of Court. See OLATUNBOSIN V. NISER COUNCIL (1988) 3 NWLR (PT 80) 25.

Thus, reverting to the case at hand, the Claimant had alleged that the procedure contained in the employee’s handbook with regards to dismissals for misconducts was not duly followed and that he was not given a fair opportunity to defend himself before he was summarily dismissed.

The provision for dismissal of any employee in the services of the Defendant company is as provided on page 33 of Exhibit C3 as reproduced below:

Dismissal

The division may dismiss the service of the employer summarily if the employer is found guilty of one act or omission inconsistent with the performance of the employee’s obligation. Such acts include stealing, fraud, corruption, falsification of documents. In all such cases, all privileges are fortified.

The procedure for dismissal is as follows:

Query: the employee in question should be given a written query which must state the specific allegation against him; the query must also give the employee a reasonable opportunity to address the allegation against him. Ideally not less than 24 hours should be given to him.

A Hearing: After the employee has turned in his representations, he must be given an opportunity for a fair hearing on his defence. Ideally, the manager who signed the query should not be a part of the hearing and at the hearing, the employee must be asked specific questions to debunk/confirm what ever defence is contained in his answer to the query. Terms such as “cause” or “guilty” or “convicted” should be avoided and at the end of the hearing if the company is satisfied that the employee has actually committed an act of misconduct, he may be summarily dismissed.

  1. The letter of dismissal must state the reason for the dismissal. This is because unlike termination, the employer may only dismiss for a proven misconduct.

There is therefore no contesting the fact that the Defendant, in order not to run foul of this provision, did in fact follow the laid down procedures before deciding to dismiss the Claimant from its services. I come to that conclusion easily because the Claimant admitted that he was queried before he was given the purported letter of dismissal.

Now, in the letter of dismissal given to the Claimant and exhibited as C5 in this cause, a copy of it is reproduced underneath for ease of reference:

6th April, 2017

Mr. Kolade Tijani

39, Cameroon Road Aba

Aba.

 

Dear Mr. Tijani,

LETTER OF DISMISSAL

Following your unsatisfactory response to the allegations of gross misconduct contained in the Regional Customer Service Manager, East’s query dated 6th February, 2017 and the questions asked you by the Risk and Compliance Panel on 14th November, 2016 regarding missing client’s stock worth N12.9m (Twelve point nine million, nine hundred thousand naira) among other infractions in the course of your duty as Customer Service Officer-Stores in MDS Aba Depot, you are hereby summarily dismissed from the employment of the Company with effect from 10th April, 2017.

In view of the above, a reconciliation of your account has been done and the breakdown is as shown in the table below:

 

Description Amount due to staff Amount due from staff
Salary up to and including 10th April, 2017 28, 344.14  
One month basic salary in lieu of notice 59, 980.47  
unamortized Education Allowance   11, 666.67

 
Unamortized Medical Allowance   22,500.00
Subtotal

Balance due from employee

 88.324.61 146.666.67

58. 342.06

 

You are expected to immediately pay to the company the sum of N58, 342. 06 (fifty Eight Thousand, three hundred and forty two naira, six kobo only) being your indebtedness to the company.

You are also required to immediately pay to the company the value of the said missing client’s stock being N12.9m (twelve million, nine hundred thousand naira)

You are hereby requested to handover all company property in your possession (e.g identity card, Uniform and any other items) to the Human Resources Manager, MDS Depot Aba.

Yours faithfully,

For: MDS Logistics LTD

Solomon Aigbavboa

Managing Director

Head of Human Resources, UACN PLC

  1. UNICO CPFA LTD

Finance Manager, MDS Logistics ltd

GM, Operations, MDS Logistics Ltd.

Warehouse and pharmalogistics Manager, MDS Logistics

 

In the letter, it was clearly spelt out that the Claimant was dismissed because of “missing client’s stock worth N12.9M among other infractions in the course of your duty”.

Again, the law is that an employee cannot be forced on an unwilling employer, therefore for case of  dismissal to be declared wrongful or unfair, the burden is on the employee to establish before the Court, the terms and conditions of the contract of employment entered into between him and the employer and to prove or establish the circumstances in which the terms and conditions of the contract of employment in question have been breached by the employer thereof. It is sacrosanct on the employee to prove any breach of the terms of contract of employment regarding thereof. See KATTO V. CBN (1999) 6 NWLR (PT 607) 390. Also Section 137 of the Evidence Act

The burden of proving the existence of a fact lies upon the party against whom judgment will be given if no evidence were adduced.

In the instant suit, the documents governing the employment between the Claimant and Defendant are the employment and confirmation letters (Exhibits C1 and C2), and C3 (the terms and conditions of Service for Senior Staff/Staff of Mr Bigg’s) meaning the employment is not one backed by Statutory flavour bringing it under the confines of Master/Servant employment — See IMOLOAME V. WEAC (1992) 9 NWLR (PT. 265) 303. The Defendant having also given its reason for the dismissal, also has the onus to establish that the Claimant committed gross misconduct.

At the risk of repeating the facts of this case, this action arose when the Claimant took an inventory of the stock in the Defendant’s warehouse on the 25th day of October, 2016 and it was endorsed by Mr. Osuji Azubuike as being correct. When the Defendant company was about to transfer the stockpiles to Lagos, it was then discovered there were shortages. The Claimant is relying on the fact that since Mr. Osuji Azubuike (DW1) endorsed the stock/inventory report and ascertained same to be correct, he can not be held accountable for the purported losses which was discovered after his inventory taking. From the facts presented before me by the CW 1, he was however asked again to take another inventory in the presence of Mr. Osuji Azubuike which he again submitted on the 1/11/2016. According to him, he later collected the report back from Mr. Osuji Azubuike to make some corrections. I can see from Exhibit D1 which is a scrap note, these so called alterations. However, the Defendant having found all these discrepancies, issued letters of  queries to the Defendant Exhibits D2 and D3 seeking for the Claimant’s explanation as to the reason for alterations made on the inventory report. Consequent to this, the Claimant wrote Exhibit D4 as his response to the queries which was accompanied by a print out of all the stocked and stacked products in the warehouse before the Claimant left on transfer to another department. Upon investigation by the Police, the Police Investigation Report (Exhibit D7) confirmed in its findings that the Claimant was a likely culprit in the disappearance of the alleged missing products.

The Police Investigation Report is (Exhibit D7) specifically found as follows:

  1. That one of the suspects Mr. Kolade Tijani was former store keeper who handed over to Mr. Osuji Azubuike.
  2. He forged security signatures on invoices.
  3. Mr Kolade Tijani used “date boards” to form cartons of products in pallets and deliberately concealed the shortages.
  4. Mr Kolade Tijani signed the variance noted by himself and Mr. Osuji Azubuike but later cancelled his signature which is a fraudulent act.
  5. Other company products found but not declared by Kolade is valued at (N1, 423,766.43) one million, four hundred and twenty eight thousand, seven hundred and sixty six naira, forty three kobo.
  6. Mr Kolade Tijani concealed other company product within the ware house without officially declaring them or handing them to the new store keeper.
  7. The total value of missing stock is (N12, 238, 418.29) Twelve million, two hundred and thirty eight thousand, four hundred and eighteen naira, twenty nine kobo.

Although the Claimant’s Counsel challenged the admissibility of Exhibit D7 stating that being a public document, there is a requirement for its certification before it can be admissible, Exhibit D7 as it is, was tendered in its original form, and the position of the law is clear on the admissibility of public documents tendered in their original formthe combine effects of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011. See also KASSIM V. STATE (2017) LPELR 42586(SC) where EKO J.S.C delivered the lead judgment.

 Also, ADEKEYE JSC IN GODWILL & TRUST INVESTMENT LIMITED V. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR-133 (SC) where he decided that —

The essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis a vis the original, When the original is available? Is akin to when the cap is in the market and the head is also in the market, there is no further need to take the cap home from the market in order to test it on the head. I therefore agree with the Court below that where the original copy of a document is available, it is admissible without requirement of certification.

It is thus safe to say that the learned Counsel to the Claimant was quite misguided in his submissions as to the admissibility of Exhibit D7. Being in its original form, it is relevant and admissible before this Court and same can be safely relied upon in reaching a decision.

Interestingly, the Claimant’s Counsel challenged the written deposition made by DW 1, Osuji Azubuike, submitting that under cross examination, the witness had stated he signed the deposition but when asked to produce a signature specimen in open Court, it was discovered that his signature was not the same as the one appended on the deposition. The deposition in question was made on 21/2/2017 and the DW 1’s signature specimen was admitted as Exhibit D8. Against the submission, the Defendant’s Counsel argued that the Claimant was wrong procedurally in demanding that the signature of the witness be made in open Court for the purpose of comparing with what was contained in signature portion of that deposition. That besides, the deposition was not signed but that the witness wrote his name on it instead.

Responding briskly to this, Sections 100 and 106 of the Evidence Act are apposite. Specifically, Section 106 provides that:

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Therefore, by requiring DW 1 to sign his signature in open Court, I do not see how this is procedurally wrong. Besides, what was written in the space for the signature of the deponent was “Osuji. A” even though when asked if he made the deposition, he answered in the affirmative.

In deciding whether or not to abandon the deposition from these proceedings as requested by the Claimant’s Counsel, I had course to refer to Order 30 rule 2 (1) (c) of the rules of this Court 2017 and Section 90 (f) of the Evidence Act. By Order 30 rule 2 (1) (c), all that is required for a Defendant to file along with his pleadings, is a witness’ written Statement on oath without stating whether it must be signed or the name of the deponent written thereon. However, Section 90 (f) provides a clearer insight when it states that the affidavit, when sworn shall be signed by the witness or if he cannot write, marked by him with his mark in the presence of the person before whom it is taken.

Whereas I find that a deposition on oath must be signed or marked in the presence of the person before whom it is made (see CHIDUBEM V. OBIOMA EKENNA & ORS (2008) LPELR-3913(CA) , there is however no provision of the law or rules of this Court stating that merely writing the initials of a deponent on the deposition without more, vitiates the statement and the same must be expunged and disregarded by the Courts. If there is such an authority, it was never produced by the Claimant’s Counsel. Therefore, having considered the objection raised, I do not find merit in same. The deposition of DW 1 is therefore validly before this Court and the testimony made in open Court relying on same, is proper and same can be safely used in reaching a decision.

From the testimony of DW2, she gave evidence that several investigations were conducted by the company officials such as the Regional Manager before he issued a query. Although the Claimant again contented that he was not heard by any panel, there is every justification to believe that he received fair hearing in that he had the opportunity of responding to the queries and make his representation. I am reasonably satisfied therefore, that his right to fair hearing was not in any way infringed upon as alleged by the Claimant.

Furthermore, Exhibits D5 (A, B, C, D) which are all reports gotten from the gang labourer, the forklift driver and security supervisor, all further suggest that an ample investigation was carried out by the Defendant whereupon all the reports of errors and shortages were discovered in the stock piles. The Claimant never gave cogent reasons to dissuade this Court’s mind to the reason for the shortages and why he never reported them. It is settled law that he who asserts must prove.

The Defendant owner of the business has the right to take necessary actions to protect its business interest. In the case of U.B.N LTD V. OGBOH (1995) 2 NWLR (PT 380) 647 AT 669 para F-G Supreme Court held that

No doubt where an employee is guilty of gross misconduct, and this has been defined as conduct of a grave and weighty character to undermine the confidence which should exist between the employee and his employers or working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages.

SEE also EZE V. SPRING BANK PLC (2011) 18 NWLR (PT 1278) 113

I therefore hold that the Claimant was not unfairly or wrongfully dismissed as alleged by the Claimant. He is therefore not entitled to the reliefs sought by him. Thus found, his reliefs 1,2,3, and 4 are hereby denied. Consequently, his claims are all together refused and same are dismissed.

On the second issue for determination which seeks to determine also the fate of the Defendant’s counter claim, it is curious to state that what is contained in the Defendant’s Statement and Defence and Counter Claim filed in this action on the 21/2/2018 was titled “NOTICE OF COUNTERCLAIM” followed by

Whereof the Defendant hereby counter claims against the Claimant as follows:

  1. An order of the Court directing the Claimant to return to the Defendant, the missing 5 cartons of Emzor (Emgyl 1000) products kept in trust by the Claimant as a storekeeper of the Dedendant in the course of his employment or in the alternative pay to the Defendant its value in the sum of N12,900,000.00 only.
  2. An order of the Court directing the Defendant (sic Claimant) to refund the sum of N58,342.06 only as demanded by the Defendant in its letter of summary dismissal of the Claimant”
  3. The cost of this action.

Dated at Owerri this 30th day of January, 2018.

……………………………………..

Interestingly, the Claimant in his reply to the statement of defence and counter claim, did not file any separate Defence to the Counter claim.

A counter claim being in the nature of a counter action, the rule is that the particulars of a counter claim must be pleaded and that evidence must be adduced to support the facts pleaded. In this case, there is no evidence in support of the amounts claimed by the Defendant. The Dedendant failed to adduce sufficient particulars ensuring to convince this Court that it is deserving of judgment on the counter claim. Therefore, there is every reason to find that the counter claim fails. My opinion has strong and favorable standing in the decision of the Appellate Court in FBN V. FAIKO NIGERIA LTD (2007) JELR 33054 (CA) where it was held inter alia that “even though it is the law as in FAYEMI V. OLORUNFEMI (Supra) that a defendant who has filed a counter claim and enters into defence to rebut the plaintiff’s claim can also prove his counter claim in the process, all material facts and particulars relied upon in such proof must also be stated in the counter claim otherwise they go to no issue in proof of the counter claim.”Per.STANLEY SHENKO ALAGOA (p.14,paras.B-D).

The Court of Appeal further stated that:

“In the present case the counter claim consists of only two paragraphs that are bereft of particulars. The burden of proof that the Respondent owes the Appellant the sum of N2,298,705 ,08 as contained in the counter claim falls squarely on the shoulders of the Appellant and such proof should be positive and unequivocal. This has not been done. Instead the Appellant has raked up bits and pieces of evidence to show that the Respondent is indebted to the Appellant to the tune of N535,804.50. Does this amount to proof by the Appellant of indebtedness to it by the Respondent of the sum of N2,298,705.08 contained in the counter claim? I think not.

Thus found, the only thing left for this Court to do is to dismiss the counter claim as unproven.

Finally, and for the avoidance of any doubts whatsoever, the Claimant’s case as well as the Defendant’s counter claim suffer the same fate. They are both dismissed for all the reasons and findings above given. I make no orders as to costs.

 

Delivered in Owerri this 22nd Day of January, 2020.

 

HONOURABLE JUSTICE I.S GALADIMA,

JUDGE, NATIONAL INDUSTRIAL COURT OWERRI

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