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National Industrial Court

UMOGBAI OJIOR PAUL -VS- DAILY DISTRIBUTORS LIMITED

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL  DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK

ON THE 16TH DAY OF SEPTEMBER, 2019

 

SUIT NO: NICN/ABJ/341/2018

BETWEEN

UMOGBAI OJIOR PAUL                                         CLAIMANT

 

AND

DAILY DISTRIBUTORS LIMITED                          DEFENDANT

 

REPRESENTATION

Chief S.T.Yenge Esq.  for the claimant.

Monday Ehiagwina Esq. for the defendant.

JUDGMENT

  1. INTRODUCTION

This is a claim of unlawful dismissal. The claimant filed a complaint in this Court on 4/12/2018 setting out the statement of material facts in full, accompanied by witness statement on oath, list of witnesses, list and copies of documents.

The defendant filed its statement of defence on 19/12/2018. The claimant, by a motion filed a reply on 6/2/2019 which was also deemed on 10/4/2019.

The defendant filed a preliminary objection on 26/2/2019 and in response, the claimant filed a counter affidavit on 4/3/2019 and the defendant filed a further and better affidavit with a reply on points of law on 26/3/2019.

The claimant prays for the following;

  1. An order nullifying and setting aside his summary dismissal on grounds of alleged criminal act of fraud for breach of sections 11.4- 11.5 of the employees handbook and section 36 of the 1999 constitution having not been tried by a Court of competent jurisdiction.
  2. An order for the payment of his salary arrears of N250, 000.00 per month from the month of May 2018 till final judgment.
  3. The sum of N5, 000,000.00 as legal fees.
  4. The sum of N50, 000, 000.00 as damages.
  5. The sum of N30, 000,000.00 as exemplary damages.

 

  1. FACTS OF THE CASE

The claimant was the defendant’s Human Resource Manager. Sometime in early 2018 some staff of the defendant were allegedly keeping back cash and reporting lesser amount of sales for personal gains. In the course of investigation, the claimant was detained in the police station alongside some other staff of the defendant. The claimant was subsequently queried, suspended and summarily dismissed, thus this suit.

  1. CASE OF THE CLAIMANT

Testifying in line with the statement of material facts as contained in the complaint and the reply, claimant stated that he was employed by the Defendant in January 2009 as personnel officer, but upon his confirmation, he was promoted to the position of Human Resource Manager. He and his colleagues increased the staff strength from 150-180 to 276 in 3 years which won him various recognitions by the company. His salary kept increasing with his regular promotions to N250,000.00 per month. Throughout the course of his employment and dealings with the Defendant from 2009 till 2017, he has not been found wanting in any way hence he had not been issued with any form of warning, query or any indictment for any form of offence.

That sometime in early 2018, one of the staff of the Defendant by name Vershima Justin, brought to his attention the fact that some staff of the Defendant were actually keeping back cash and reporting lesser of sales for personal gains. He told  Justin to report the matter in writing to the General Manager (G.M) Internal Control and Head of Accounts, for proper investigation. The General Manager of the Defendant took over the investigation of the matter. On learning that there were issues involving wholesale staff, he put a call through to Mr. Donatus Amadu, the Sales Representative, to ask him whether he was not involved in anything shady, and if he was, he should come clean and resolve it as soon as possible without implicating anybody who is not involved, in view of the previous happenings where staff were coerced into mentioning innocent names. The General Manager of the Defendant hacked into the above phone conversation and used it as evidence against him that he was involved in a fraud, and that the purpose of the phone call was to tell Mr. Donatus  Amadu not to implicate him.

The Managing Director of the Defendant Mr. Mohamed Abdulraman directed him to meet him at the Nyanya Police station. Upon reaching the police station, he was detained alongside with some other staff of the Defendant and Mr. Sunday Ayenoga, who accompanied him to the police station, for three days.

Upon investigation by the police and the confession of the staff involved, he was freed of all allegations against him and the Investigating Police Officer handling the case informed the managing Director of the Defendant Mr. Mohamed Abdulraman at whose behest he was detained, in his presence, that he did not find anything against him and as such he could not charge him to court or push the case further.

On the 27th April, 2018 however, he was issued with a query letter from the office of Human Resource Assistant Manager of the Defendant bordering on the issue of fraud on the same investigation by the police who gave verdict in his favor. He answered the query on 28/4/2018. The Defendant again instead issued him with a letter of indefinite suspension without payment of salaries and emoluments on the 30th April, 2018. Rather than comply with the findings of the police in this matter, the Defendant summarily dismissed him via a letter dated 30th July, 2018.

His dismissal does not accord with the internal rules of the Defendant as captured under sections 11.5 – 11.6 of the employee handbook and Section 36 of the 1999 Constitution of Nigeria (as amended) which guaranteed the right to fair hearing. He knows nothing about the purported allegation of fraud against him by the Defendant which led to his summary dismissal without recourse to the laid down procedure as captured in the Employee Handbook of the Defendant. The defendant has not paid him his monthly salary of N250.000.00 since May 2018. He has been charged to pay the sum of N5, 000,000.00 for legal services in this case.

Testifying in support of his reply, claimant said there is no provision for “verbal warning” in the Defendants Hand book and that none was issued to him at any given time. He and other Staff of the Defendant went to Kubwa Area Court in respect of a case involving one of the Staff of the defendant by name Ben Wilfred Mbarekpega, who owed the Defendant the sum of about N500, 000.00. Ben deposited the sum of ten thousand Naira only with the Registrar of the Court. The Registrar of the Court handed over the amount to him in his capacity as the Human Resource Manager, since the accountant of the Defendant was absent. Upon reaching the office, he handed over the said N10, 000.00 immediately to the accountant of the Defendant Mr. Ettoh Asuquo, and there was no issue on it. His call to Donatus Amadu was only to advise not to implicate anybody that was not involved in the crime. He did not plead with anybody for settlement and he did not sign any terms of settlement with the Defendant or anyone else. That in the settlement meeting which was summoned by the Defendant’s lawyer, M. O. EHIAGWINA wherein the people that committed fraud against the Defendant were named with the amount received  which they all agreed to pay via different means, nowhere was his name mentioned.  He was privy to the meeting for settlement by virtue of his position as the Human Resource Manager but he was not indicted by anyone.

The claimant tendered 9 documents which were admitted in evidence and marked as exhibits UOP1 –UOP9. Reference will be made to any specific exhibit as the need arises.

Under cross examination, CW1 testified that I do not know if it is the issue of inflation of sales figures by Justin that led to my dismissal. Donatus Amadu was also investigated. I was not given a police report. The meeting for settlement did not involve my own case.

  1. CASE OF THE DEFENDANT

Two witnesses testified for the defendant. DW1 was Mr. Donatus Amadu while DW2 was Mr. Sunday Omojuyigbe.

DW1 testified that he worked as a sale representative with the Defendant before he was dismissed alongside with the claimant and four (4) other staff. He and the claimant were among those invited and investigated by the Defendant sometime in July 2018.

I was also among those invited and interviewed by the police sometime in May, 2018 at the Nyanya Police Station FCT, Abuja. At the Nyanya Police Station, FCT, Abuja, all the six (6) staff including the claimant agreed together to settle the matter amicably with the Defendant. I and the five (5) other staff including the claimant agreed to pay the Defendant the sum of N19, 800, 000.00 (Nineteen million, Eight Hundred Thousand Naira). I accepted to pay the Defendant the sum of N2, 400, 000.00 (Two Million Four Hundred Thousand Naira) for the claimant and himself out of the N19, 800, 000.00 (Nineteen Million, Eight Hundred Thousand Naira) admitted by all the staff involved. The claimant was to pay his own share of the sum of N426,000.00 (Four Hundred and Twenty Six Thousand Naira) which I gave by cash to the claimant two times, N200,000.00 and 226,000.00 respectively between June, 2017 and July, 2017 , but the claimant uptil now did not.

Based on the urge for settlement by us, I agreed with claimant and five (5) other staff to approach the Defendant to have a written memorandum of settlement between the Defendant and I dated June, 2018. The settlement between the staff involved in the offences with the Defendant constrained the Police to stop the prosecution of the case against us since the Defendant had agreed to accept the refund of its money. I never mentioned names of innocent staff in this instant case or any other before to the Defendant or any other person. I was shocked when the claimant called me with his phone sometime in April, 2018 when the claimant was aware of the investigation of fraud committed by us against the Defendant.

DWI tendered two documents which were admitted in evidence and marked as exhibits DA1 and DA2. Reference will be made to any specific exhibit as the need arises.

DW1 testified under cross examination that the claimant was his superior in the office. He did not read the facts in paragraph 9 of his witness statement in the statement of defence. The name of the claimant and his involvement is not mentioned in exhibit DA2.The claimant merely told him not to implicate others.

DW2 was one Mr. Sunday Omojuyigbe, General Manager of the defendant, he testified that Claimant has at various times grossly abused his office despite repeated verbal warnings from the Defendant. The climax of the Claimant fraudulent practices and abuse of office started since 9th of May, 2017 when the Claimant collected and personally used the money deposited with the Registrar by a staff of the Defendant, one Ben Wilfred Mbarekpega a former staff of the Defendant who is standing trial at the Grade 1, Area Court, Kubwa, FCT Abuja. The Claimant knew that his indictment in the matter was unavoidable since Donatus Amadu was already indicted then he put a call to Donatus Amadu appealing to him not to implicate any staff involved in the fraud because the Defendant will not hesitate to punish any staff found wanting. He was not aware of the Claimant detention. To the best of his knowledge, the police did their work independently and professionally without the input of the Defendant.

The rest of this witness deposition is the same with that of the DW1.

DW2 tendered four documents which were admitted in evidence and marked as exhibits SO3 to SO6. Reference will be made to any specific exhibit as the need arises.

Under cross examination, DW2 testified that important proceedings in the defendant are documented. The flash per my paragraph 6 is with my counsel. Section 13.3 of the handbook applies to a Manager. The dismissal was based on paragraph 11.4. He did not receive a report from the police. The claimant was found to commit the offence in the process of investigation. He signed an agreement but not between him and the defendant.

  1. DEFENDANT’S FINAL WRITTEN ADDRESS.

In his final written address, the learned M.O. Ehiagwina Esq. of counsel for the defendant submitted four issues for determination and argued them as follows;

  1. Whether the Claimant has sufficiently proved his claims to be entitled to the reliefs sought in this suit.

On this issue counsel submitted that the Claimant did not prove his claims against the Defendant and he is not entitled to any of the reliefs sought in the suit. The Claimant admitted in both his pleading and evidence that the Defendant was defrauded at various times by staff of the Defendant sometime in August, 2017 spanning to April, 2018. That there are contradictions between the claimant’s pleadings, evidence and exhibits and these contradictions rendered the Claimant’ s entire evidence before this Honourable Court unreliable being not credible. See the case of REV. DR. CHIDI OKOROAFOR & 18 ORS V. REV. PROF. PAUL EMEKA (2015) 34 WRN 45 AT 121 – 122.

The Defendant further submit that by the terms of the agreement contained in the Employee Handbook that what ought to have been done and in this case done by the Defendant was the payment of one month salary before the dismissal of the claimant. See also SECTION 5.2, pages 17 and 18 of the Employee Handbook.

  1. Whether the employment of the claimant by the Defendant is one with statutory coloration/flavor, if not, whether the contract is governed only by an agreement by the parties?

Counsel submits that the employment of the claimant by the Defendant was contractual. The Defendant is not created by statute of Government. The Defendant is a private limited liability company registered under the laws of Nigeria with head office in Abuja. PETER 0NYEACHONAM OBANYE V. UNION BANK OF NIGERIA PLC (2019) VOL 4. WRN, 1-176 page 50 at page 52.

  1. Whether a breach was committed on the terms of agreement between the parties, in view of the fact that the relationship between the Claimant and the Defendant is purely contractual.

Counsel submits that the Claimant breached the terms of agreement by the parties as provided by the Employee Handbook. Consequent upon these breaches and others the Claimant was issued with Exhibit UOP3, UOP5 and UOP6 by the Defendant in accordance with Exhibit UOP7 same with Exhibit S04. (employee handbook) That there was a disciplinary committee set up by Defendant. The Committee made its’ recommendations to the MD/CEO. The MD/CEO accordingly approved the termination of the Claimant’s appointment after according the Claimant the opportunity to defend himself. All these facts were not disputed. The dismissal was in accordance with section 11 .4 of the defendant’s handbook. The contract of employment is only between the Claimant and Defendant. Defendant accordingly applied the terms and conditions as contained in the Employee Handbook section 5.2, 17 and 18. The defendant did not need to depend on police investigation and report before taking any action against the claimant.

  1. Whether this Honourable Court has the jurisdiction to hear and determine this suit on the face of page 12 of the complaint filed by the Claimant’s legal representative?

Counsel submits that jurisdiction is the live wire of adjudication, it goes to the root of the suit, such that when a court lacks jurisdiction over a matter it would be an effort in futility to adjudicate thereon. The Claimant who took out a complaint through his Solicitors against the Defendant did not fulfill the condition precedent for commencement of action in accordance with the Rules of this Court. This goes to the competence of this action and therefore robs this Honourable Court of the jurisdiction to adjudicate on this action.

Counsel further submits that “Order 3 rule 1(c) provide that  the complaint shall be signed by the party to the proceedings or by such party’s legal practitioner, In the same vein order 4 Rule 4 (3) provide that an originating process shall be signed by the claimant or counsel where the claimant sues through a counsel. Counsel  submit that the Claimant/Respondent has no counter Affidavits to the Defendant’s motion on notice dated 21st February, 2019 and filed on 26th February, 2019.

Counsel urged the Court to dismiss the complaint issued against the Defendant with substantial cost, the claimant having failed to prove his wrongful Termination by the Defendant.

  1. CLAIMANT’S FINAL WRITTEN ADDRESS.

In his final written address, learned Chief Sebastine T. Hon, SAN FCIArb. of counsel for the claimant  formulated 4 issues and argued them as follows;

  1. Whether or not based on the quality of evidence adduced and the state of law, the Claimant has not discharged the burden of proof to enable this Honourab1e Court to grant all the reliefs sought in the Statement of Facts.

Learned counsel submits that the Claimant has successfully discharged the burden of proof based on the preponderance of evidence which clothe this Honourable Court with power to grant all the reliefs sought by the Claimant in his Statement of Facts.

On RELIEFS 37(1)-(4), declarations of wrongful dismissal and setting same aside, the learned SAN submit that Paragraphs 24 to 32 of the Statement of Facts and same paragraphs of the witness Statement on Oath of Claimant (CW1)  clearly proved and established the above reliefs.  The evidence in the aforementioned paragraphs remains unchallenged and uncontroverted evidence. The evidence that the Defendant never followed sections 11.5- 11.6 in dismissing the Claimant has not been disputed. Clearly, the dismissal letter is unequivocal that the dismissal was in accordance with the provisions of section I1.4 which is not applicable to senior officers to which the Claimant belongs. The Defendant who asserted affirmatively that due process was followed whilst dismissing the Claimant ought to have proved same before this Honourable Court.

That  the Clamant also averred that if he had committed an offence as alleged by  the Defendant, he would have been charged to a Court of competent Jurisdiction for his trial in accordance with the rules of natural Justice enshrine in section 36 of the Constitution of the Federal Republic of Nigeria, 1999. The submissions in paragraphs 3.23 and 3.24 of the Defendant’s final address are not correct in law and in facts. Even God who created man never said man was not entitled to fair hearing during disputations as argued by the defendant. See L.P.D.C V FAWEHINMI (1985)2 NWLR (PT. 7) 300 AT 347.

That for an employee to be dismissed for stealing, such must be a proven case of stealing as provided by section 11.4 of the defendant’s handbook.

On RELIEF 37 (5), claim of salary arrears of N250,000.00 per month from May 2008 till final determination of this suit, claimant’s counsel argued that exhibit SO6 pleaded by both parties is only to support the undisputed facts that as at the time the Claimant was  dismissed, he was a Resource Manager and his salary was N250,000.00.

The fact that Claimant’s latest salary was N250,000.00  has not been  denied by the Defendant anywhere in his statement of defence and same  has been supported by Exhibit S06.

Therefore under this relief, the Claimant  would be entitled to the special sums of N1,000,000.00 for the four months while he was wrongly on suspension from April,2018 to July 2018 and N1,000,000.00 from August,2018 to December,2018 when the suit was filed. The Claimant would also be entitled to N1,500.000.00 from January, 2019 to June, 2019 and N250, 000.00 from July,2019 till judgment is delivered and enforced. 

This calculation is necessary because in the eyes of the law there is no dismissal but because this Court may not order reinstatement in this matter and restatement is not asked as a relief, this is the only way the Claimant would be put in his position as if there was no breach of the contract by the Defendant vides restitution intergrum.

On RELIEF 37 (6), claim for N5, 000, 000.00 as solicitors fees, learned Silk submitted that the averments on this claim remain unchallenged no cross-examination question was asked in respect of the evidence adduced under this relief. UBN PLC V. CHIMAEZE (2014) ALL FWLR (PT 734) 48 AT 75-76; NAUDE V. SIMON (2014) ALL FWLR (PT. 753) 1878 AT 1906.

On RELIEF 37(7), claim of N50, 000,000.00 as damages for illegal dismissal, learned SAN submitted that the law is equally settled that under exceptional circumstances as against the general rule, damages can be awarded where it is established that the Defendant unilaterally breached the contract as did by the Defendant in this case by not following the terms and conditions stipulated in the Handbook. S.P.D.C LTD V NWABUEZE (2014) ALL F.W.L.R (PT.724) 117 AT 139.

On RELIEF 37 (8), claim for N30, 000, 000.00 exemplary damages, the learned Silk submitted that exemplary damages can also be awarded to punish the Defendant for his conduct which is unconstitutional and outrageous that has inflicted pains and injury on Claimant without any legal justification See C.B.N V. OKOJIE (2015) ALL FWLR (PT.807) 478 AT 506 B-C.

  1. Whether the employment of the Claimant by the Defendant is one with statutory coloration/flavor, if not, whether the Contract is governed only by an agreement.

Counsel submit that issue two is not an issue that Should be formulated for arguments and determination, because it is not in contest. To the Claimant his employment has no statutory flavor and he never prayed for re-instatement. This issue in all sincerity does not flow from the facts and evidence canvassed by parties in this suit and should be accordingly discountenanced for being a non-issue.

  1. Whether a breach was committed on the terms of agreement by parties. In view of the fact that the relationship between the Claimant and the Defendant is purely contractual.

Counsel submit that the entire arguments of the Defendant on this issue are incorrect but indicated in one breath that the Defendant acted outside the provisions of Exhibit UOP7 by not complying with section 11.5 of Exhibit UOP7 and therefore in breach of the terms and condition of employment contained in the said Exhibit UOP7.

  1. Whether this Honourable Court has the jurisdiction to hear and determine this suit on the face of page 12 of the complaint filed by the Claimant’s legal representative.

Counsel submitted that page 12 alleged not signed by the Claimant is a page that deals with the memorandum to be subscribed on the complaint. It is normally signed by the Registrar and the Registrar of this court did sign the document at page 12 and dated 4/ 12/18. There is no provision for the signature of either a party or his legal practitioner.

On the requirement of Order 3 rule 10 ( c) and Order 4 Rule (3) of the  Rules of this Honourable Court that requires a party to sign personally or by his counsel, We refer your lordship to page 10 of the Claimant’s Originating process where the complaint is signed by Daniel A. Ane Esq· and ticked as a mark of identity of the signatory and his NBA seal affixed. This page which contains the complaint contemplated under 3 and 4 has not been challenged.

That assuming without conceding that there is a failure on the part of the Claimant to comply with Orders 3 and 4 of the Rules of this Honourable Court, same could be treated as an irregularity and the Court may give direction as may be appropriate in the attainment of Justice pursuant to Order 5 Rule l of the same Rules.

  1. DEFENDANT’S REPLY ON POINTS OF LAW.

Counsel submitted that claimant’s counsel al1eged proved of his case by only nine (9) Paragraphs out of the pleaded thirty-seven (37) paragraphs is an admission that the Defendant had successfully demolished the Claimant’s evidence. The Claimant‘s claim must fail.

That the burden of proof rest squarely on the Claimant. See Section 1 31 (1) of the Evidence.

That the unchallenged Exhibit DA1, S05 and particularly DA2 Set on motion by the Defendant and consented to by the Claimant in paragraph 11 of the Claimant’s reply to Defendant’s statement of defence is a process of compounding the offence against the Claimant, which was an assurance not to inform against the Claimant and his Co-travelers, one of the them was the DW1.

That the Claimant having not deemed it necessary to comply with the provisions of section 12 page 2.6 of the Employee Handbook implied he accepted his termination like other staffs in good faith.

That the Claimant failed to establish any contractual relationship of payment of legal fees between the Claimant and his solicitors that include the Defendant.

That the Claimant having failed to prove his wrongful dismissal by the Defendant is not entitled to any of the reliefs on damages. Assuming but without conceding that the claimant has proved his termination to be wrongful by the Defendant, the Claimant would not be entitled to more than one month salary of April 2018 paid by the Defendant. See ONYEACHONAM OBANYE V UNION BANK OF NIGERIA PlC (2019) 4 WRN SUPRA.

That on Order 3 Rule 10 (c) and Order 4 Rule 4 (3), it is trite that Rules of Court are made to be obeyed by the parties to a suit and must be obeyed by the parties.

  1. DEFENDANT’S PRELIMINARY OBJECTION AND CLAIMANTS COUNTER AFFIDAVIT.

The Defendant filed a motion on notice dated 21st February, 2019 and filed on the 26th February, 2019, challenging the jurisdiction of this Honourable Court on the ground that the Claimant suit is incompetent and baseless for failing to comply with the condition precedent to commencement of actions. The motion was supported by 11 paragraphs affidavit relied upon by the Defendant. The Claimant/Respondent filed a 12 paragraphs Counter Affidavit dated 4th March, 2019 and a second Counter Affidavit of 11 paragraphs dated 20th March, 2019.

Parties have also incorporated the objection as an issue in their final written addresses adopted on 12/7/2019.

  1. ISSUES FOR DETERMINATION.

The 4 issues for determination as formulated by the defendant and argued by each counsel are;

  1. Whether or not based on the quality of evidence adduced and the state of the law, the Claimant has not discharged the burden of proof to enable this Honourable Court to grant all the reliefs sought in the Statement of Facts.
  2. Whether the employment of the Claimant by the Defendant is one with statutory coloration/flavor, if not, whether the Contract is governed only by an agreement.
  3. Whether a breach was committed on the terms of agreement by parties. In view of the fact that the relationship between the Claimant and the Defendant is purely contractual.
  4. Whether this Honourable Court has the jurisdiction to hear and determine this suit on the face of page 12 of the complaint filed by the Claimant’s legal representative.

The court adopts issue 4 as the first issue for determination and issues 1,2 and 3 shall all be answered under issue 1 as the 2nd issue herein.

 

 

  1. COURT’S DECICION
  2. PRELIMINARY OBJECTION

Whether this Honourable Court has the jurisdiction to hear and determine this suit on the face of page 12 of the complaint filed by the Claimant’s legal representative.

The defendants contention is that neither the claimant nor the counsel signed the complaint and accordingly, it is incompetent because “Order 3 Rule 1(c) provide that the complaint shall be signed by the party to the proceedings or by such party’s legal practitioner, In the same vein Order 4 Rule 4 (3) provide that an originating process shall be signed by the claimant or counsel where the claimant sues through a counsel.

I have read the motion of the defendant, the prayers and ground of the motion, the affidavit in support and the written address in support as well as counsels issue 4 in his final written address and his reply on points of law, I did not find any reason adduced as to why counsel contends that the complaint was not endorsed in spite of the signature, name and stamp of counsel on page 10  of the complaint, pointed out by claimant’s counsel in his final written address.

The complaint of the claimant spans from pages 1 to 13, stating out the statement of material facts in full and same was signed as required by Order 3 Rule 10(b)(ii) and ( c) (i) of the Rules of this Court. This Rule requires that ;

  1. The complaint shall be  formatted as in form1 and  shall contain-

( b) in PART 2 the following information:

(ii) a clear and concise statement of the material facts establishing the cause of the action in chronological order, on which the party relies, which statement shall be sufficiently particularized to enable any opposing party to reply to ;

( c) The  Complaint shall-

(i)  be signed by the party to the proceedings or by such party’ s legal practitioner:

At the end of the statement of material facts (pages 1-10) in the complaint, is the signature, names of counsels and NBA stamp of claimant’s counsel. The Rules of court did not prescribe where the signature should be in the originating summons but only that it shall be signed.

I find that claimants counsel, Particularly Daniel E. Ane Esq., listed as the ninth counsel, signed the complaint at page 10 and affixed his NBA stamp thereto.

Accordingly, I find and hold that the objection is without merit and same is hereby dismissed.

  1. MERIT OF THE CASE

Whether or not based on the quality of evidence adduced and the state of the law, the Claimant has not discharged the burden of proof to enable this Honourable Court to grant all the reliefs sought in the Statement of Facts.

Having considered the pleadings and evidence of parties and the issue for determination, it is not in issue as it is agreed that the relationship between the parties is that of master and servant, not a statutory employment. Whether there is a breach is the crux of this case and is left for the claimant to establish his case.

The divergent facts relevant to the determination of this case are as follows;

According to the claimant;

“Upon investigation by the police and the confession of the staff involved, I was freed of all allegations against me…”.

“I did not commit or admit committing the alleged offence and so it is a breach of the terms of my employment for the defendant to dismiss me on an allegation of fraud without a court conviction.”

According to DW1, Mr. Donatus Amadu;

At the Nyanya Police Station, FCT, Abuja, … I and the five (5) other staff including the claimant agreed to pay the Defendant the sum of N19, 800, 000.00 (Nineteen million, Eight Hundred Thousand Naira). I accepted to pay the Defendant the sum of N2, 400, 000.00 (Two Million Four Hundred Thousand Naira) for the claimant and myself from the N19, 800, 000.00 (Nineteen Million, Eight Hundred Thousand Naira) admitted by all the staff involved.

The claimant was to pay his own share of the sum of N426,000.00 (Four Hundred and Twenty Six Thousand Naira) which I gave by cash to the claimant two times. Based on the urge for settlement by us, I agreed with claimant and five (5) other staff to approach the Defendant to have a written memorandum of settlement between the Defendant and I dated June, 2018.

The said agreement was tendered and admitted in evidence as exhibit DA2.

Except for the statement that “the claimant was to pay his own share of the sum of N426,000.00 (Four Hundred and Twenty Six Thousand Naira) which I gave by cash to the claimant two times”, this evidence is in line with the pleadings in paragraphs 22 and 23 of the statement of defence.

According to DW2, the claimant signed an agreement, but not between him and the defendant. That negates the claim of the defendant as shown above.

There is no evidence or report of anything that happened at the police station before the Court. More so, that agreement was neither captured in exhibit DA2 nor was any similar agreement as exhibit DA2 made between the claimant and the defendant.

Exhibit DA2 is an agreement between the defendant herein (as complainant) and DW1 (as defendant) only and neither the claimant herein nor any other staff is mentioned anywhere in that agreement, neither does it make any reference to N19, 800, 000.00 (Nineteen Million, Eight Hundred Thousand Naira)

Relevant portions of the agreement, exhibit DA2, is hereby reproduced;

WHEREAS:

  1. The Complainant instituted a complaint against the Defendant and the Defendant had admitted to have received the sum of (Two Million, Four Hundred Thousand Naira (N2,400,000.00) a proceeds from an unlawful act.
  2.  The Defendant is desirous to settle this dispute  amicably and have approached the Complainant and both parties have agreed on the terms and conditions set out herein below:

NOW THEREFORE, the Complainant and the Defendant now agreed and resolves as follows:

  1. That the Defendant shall pay the sum of N2,400,000.00 (Two Million, Four Hundred Thousand Naira) only to the Complainant.
  2. That the payment of the said sum shall be on monthly basis.
  3. That the Defendant shall pay the sum of N500,000.00 (Five Hundred Thousand Naira, in the month of June and N200,000,00 (Two Hundred Thousand Naira) in subsequent months until final liquidation of the entire sum.
  4.  That the parties mutually and voluntarily agreed to be bound by the terms of the settlement as final settlement of this matter.
  5.  That the Defendant shall pay the sum of money in this Memorandum of Settlement in the Complainant’s Bank Account to wit Daily Need Distributors Ltd, Account No. 2026381868, First Bank Plc.

The pleading and evidence of DW1 on this issue is contrary to what is contained in exhibit DA2 in support thereof. The allegation is not proved.

On the evidence before the Court, the query letter of 27/4/2018, exhibit UOP3, was replied by the claimant on 28/4/2018, exhibit UOP4. In his reply, the claimant stated thus;

”I wish to answer as follows: it was not true that I was involved in a case of stealing company’s fund as stated in the query on the 27th April, 2018 or any other day…”

There is no any contrary evidence of admission of the offence before this Court, either before or after the query letter and reply. I find that the claimant never admitted the offence alleged against him. I so hold.

What is left to be determined now is whether the defendant could lawfully or rightfully dismiss the claimant on an allegation of fraud or crime which he has denied without first having him tried and convicted by a Court of law.

The law as it stands today is that an employee, whether in a master/servant relationship or statutory employment can be summarily dismissed for a crime or gross misconduct, provided he admits the allegation or his gross misconduct is manifest without need for admission.

See MR. SYED QAMAR AHMED v. AHMADU BELLO UNIVERSITY (ABU) & ANOR  (2016) LPELR-40261(CA) where the Court held;

In exercising this power, the Law no longer draws any distinction between an ordinary master-servant employment and an employment with statutory flavor with respect to the right of the employer to summarily dismiss an employee for acts of gross misconduct. YUSUF v. UBN LTD (1996) 6 NWLR (Pt.457) 632. It is now settled that an employer can summarily and without any much ado, dismiss an employee in all cases of gross-misconduct provided that the affected employee is given a fair hearing, whether the affected employee is in private employment or statutory employment.
ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (supra), (2007) All FWLR (Pt.243) 265, 266, FRANCUS ARINZE V. FBN LTD (2004) 12 NWLR (PT.888) 663.

In FEDERAL UNIVERSITY OF TECHNOLOGY AKURE v. DR R.A. OSEMENAM
 (2011) LPELR-4155(CA), the court held as follows;

On the other hand, the issues in the cases of GARBA v. UNIVERSITY OF MAIDUGURI (supra) and FEDERAL CIVIL SERVICE COMMISSION (F.C.S.C) V. LAOYE (supra) are very relevant and applicable to the present case.
The Supreme Court, per NNAMANI, JSC held in GARBA v. UNIVERSITY OF MAIDUGURI (supra) as follows:
” Neither the investigating Panel which investigated these serious charges nor the disciplinary Board of the senate which considered its finding is a court of law. Neither of them was competent to adjudicate on matters connected with the rights of the appellants once the allegations intruded crimes”

However, in the case of F.C.S.C. v. LAOYE (supra) the Supreme Court qualified the principle of law set down in previous decisions including GARBA V. UNIVERSITY OF MAIDUGURI (supra) by adding that if the person to be disciplined in respect of allegations of criminal nature accepts liability, the necessity  for a trial and conviction by a competent court or tribunal is obviated. In F.C.S.C. v. LAOYE (supra) the Supreme Court held, inter alia as follows:

“The decision in Garba v. University of Maiduguri (1986) 1 NWLR (pt 18) 550 should however not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. … where the person so accused accepts his involvement in the act complained of, no proof of the criminal allegation against him would be required… He could face discipline thereafter… ”
It seems clear to me, therefore, that an employee, whose employment is spiced with statutory anointing, cannot be disciplined by way of dismissal based on allegations bordering on legal criminality without his criminal liability first established by a competent court or tribunal, unless such employee admits liability.

In the circumstance of this case, having found that the claimant never admitted the offence, the evidence agreed upon before the Court is that the claimant was never charged to Court and convicted for the said crime. The defendant cannot rightfully dismiss the claimant on an allegation of crime. I so hold.

The dismissal of the claimant on ground of fraud without a Court conviction in the circumstance of this case is hereby declared wrongful.

Having found that the dismissal was wrongful and being that this is a master/servant relationship and the employment could be terminated at any time provided the terms of employment are complied with; and being the case that reinstatement cannot be ordered, the only remedy that the claimant is entitled to is remittal of the dismissal to termination.

This Court hereby remits the dismissal of the claimant to termination with effect from the date of dismissal. Consequently, the claimant is entitled to payment of any applicable terminal benefits in line with the contract of employment, and it is so ordered. See Section 14 of the National Industrial Court Act, 2006.

Learned claimant’s counsel has argued that the Claimant  would be entitled to the special sums of N1,000,000.00 for the four months while he was wrongly on suspension from April,2018 to July 2018 and N1,000,000.00 from August,2018 to December,2018 when the suit was filed. The Claimant would also be entitled to N1, 500,000.00 from January, 2019 to June, 2019 and N250, 000.00 from July, 2019 till judgment is delivered and enforced.

Wrongful dismissal in a master/ servant relationship does not render the dismissal null and void to entitle the dismissed employee to his salaries during the period of dismissal.

The position of the law however is that an employee who is wrongfully terminated is only entitled to what he would have been entitled to if the employment was terminated in accordance with the terms of employment. This Court therefore can only enforce what the terms of employment allows the claimant in event of termination. Being the case that an employee cannot be forced on the employer, even though the dismissal was wrongful, the employment cannot be held to exist beyond July, 2018 when claimant was dismissed, now committed to termination. There is no basis in law for the award of salaries to the claimant beyond July 2018 when the contract was brought to an end, even though wrongfully.

   
  See OLATUNBOSUN v. NISER COUNCIL (1988) NWLR (Pt.80) 25where  the supreme court per Oputa JSC held;

“The law is that a servant who has been unlawfully dismissed cannot claim his wages for services he never rendered.

Exhibit SO6 pleaded and relied upon by both parties shows that as at the time the Claimant was dismissed, he was a Resource Manager and his salary was N250,000.00 per month. The claim for unpaid salaries according to the claimant is from May 2018. The claimant is entitled to special damages representing his salaries for the months of May 2018 to July 2018 at the rate of N250,000 per month which is N750,000.00, plus N250,000.00 as prescribed by section 11 of the labour Act incorporated in section 5 of the defendant’s employee Handbook, (exhibits UOP7 and SO4, as salary in lieu of notice, amounting to N1,000,000.00.

Having remitted the dismissal to termination and ordered payment of terminal benefits, having served for 9 years six months, in accordance with the terms of employment; an award of general or exemplary damages will amount to double compensation.

The claimant cannot claim for both general damages of N50,000,000.00 and exemplary damages of N30,000,000.00 as that will amount to double compensation. See Z. P. IND. LTD. V. SAMOTECH LTD. (2007) 16 NWLR (PT.1060)P315 AT P346 where the court held;

“In Armels Transport v. Transco (Nig.) Ltd. (1974) 11 SC p. 237. The Supreme Court stated that the rule against double compensation prevents a party from claiming under two heads using different names. Consequently, once a litigant is well compensated under one head of damages he should not be awarded damages under another head, and so an award of damages based on double compensation to a plaintiff/complainant is erroneous in law and will not be allowed to stand. See Agaba v. Otobusin (1961) All NLR p. 299: (1961) 2 SCNLR 13.

 

The claimant cannot claim for solicitor’s fees from the defendant even if his claim succeeds. See CHUKWUDINMA V. ACCESS BANK PLC (2015) 56 N.L.L.R. (PT.192) P.407 AT P.P 436-437 where this Court per Kola-Olalere J held;

“It is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party. It is an unusual claim and it is difficult to accept in this country as things stand today. … The claimant is not entitled to claim his solicitor’s fees from the defendant. S.P.D.C.  v. Okonedo (2007) All FWLR (Pt. 368) 1104 at 1137 -1138 Paras. E- D: Nwanji v. Coastal Serv. (Nig.) Ltd (2004) 11 NWLR (Pt.885): [2004) LPELR SC.151/1999 (2004) 18 NSCQR 895 at P.18, paras. B-E, Oyebode  V Gabriel (2013) All FWLR (PT,669) 1043 at 1083 and section 137(1) of the Evidence Act referred to]” 

See also UCHEGBU V. ECOBANK NIG PLC (2015) 52 N.L.L.R 9PT.176) P. 579 AT PP.603-604

The claim for the cost of engaging solicitors for N5,000,000.00 by the claimant fails and same is hereby refused.

 

11.COURT ORDER

On the whole, and for the avoidance of doubt, the claim of the claimant succeeds in part and it is hereby declared and ordered as follows;

  1. A declaration that the dismissal of the claimant on ground of fraud without a Court conviction in the circumstance of this case is wrongful.
  2. An order that the dismissal of the claimant is hereby remitted to termination with effect from the date of dismissal.
  3. An order that the defendant shall compute and pay to the claimant any applicable terminal benefits in line with the contract of employment, claimant having served for nine and half years.
  4. The defendant is ordered to pay the claimant the sum of N1, 000, 000.00 representing his salaries for the months of May 2018 to July 2018 at the rate of N250,000.00 per month which is N750,000.00, and N250,000.00 salary in lieu of notice.
  5. Cost of N200, 000.00 is hereby awarded in favour of the claimant.
  6. The judgment sum and cost shall be paid within 30 days of this judgment, failure upon which the sums shall attract 10 % interest per annum.

This is the judgment of the Court and it is entered accordingly.

…………………………………..

HONOURABLE JUSTICE K.D.DAMULAK

NICN, ABUJA

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