IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: MAY 2, 2019

 

SUIT NO. NICN/ABJ/165/2018

 

BETWEEN

Mr M. A. Chiroma-                             Claimant

 

AND

Forte Oil Plc                                                            -                         Defendant

 

REPRESENTATION

L. M. Pwahomdi Esq, with Muhammad Shamsudeen for the claimant.

Gbenga Bello, for the defendant.

 

JUDGMENT

1. This is a case remitted to this Court for trial by the Court of Appeal. The claimant had filed this suit on 11th March 2013 at the High Court of Zamfara State sitting in Gusau. When the matter came up before this Court on 15th November 2018, parties were ordered to file fresh processes to bring the case within the Rules of this Court. Accordingly, on 19th November 2018, the claimant filed his complaint, statement of claim, list of witnesses, written statements on oath of the witness, list of documents and copies of the documents. The defendant in reaction filed on 16th January 2019 its statement of defence, list of witness, statement on oath of the witness, list of documents and copies of the documents. At the trial, the claimant called two witnesses: the claimant himself testified as CW1 and tendered Exhibits A to O, P, P1, Q1 to Q12, R, S1 to S5, T1 to T12, U1 to U11, V1 to V3, W1a, W1b, W2, W3a and W3b, X, Y, Z and AA1 to AA12, BB1 to BB2, CC, DD, EE and FF; and Aja Alhaji Bawa, who works as General Manager with Mubeco Petroleum Co. Ltd Kaduna, testified as CW2. Abosede Olawunmi Olanipekun, a human Capital Advisor with the defendant, testified as DW for the defendant and tendered Exhibit GG. At the close of trial, parties filed and served their respective final written addresses. The defendant’s was filed on 8th February 2019, while the claimant’s was filed on 20th February 2019. The defendant did not file any reply on points of law.

 

2. The claimant is claiming against the defendant for the following reliefs:

(i)      A declaration that the defendant’s letter 19th January, 2010 dismissing the claimant is ultra vires, unlawful, illegal, null and void and of no effect whatsoever having regard to the terms of the claimant’s appointment with the defendant and the provisions of the Human Resource Policies and Procedures Manual governing the conditions of service for the defendant’s staff.

(ii)    A declaration that the purported dismissal is capricious, arbitrary, unconstitutional, null and void for want of fair hearing and compliance with the laid down procedures for termination of appointment of confirmed staff of the defendant.

(iii)  An order setting aside the purported dismissal of the plaintiff from the service of the defendant as conveyed by the letter dated 19th January, 2010.

(iv)  A declaration that upon the determination of contract of appointment hitherto existing between the claimant and the defendant and/or its privies, the claimant is entitled to payment of end of service benefits, gratuity and issuance of certificate of service.

(v)    An order commanding the defendant to pay the salaries, allowances, bonuses and entitlements of the claimant from 19th January, 2010 up to the date of judgment.

(vi)  An order commanding the defendant to pay the claimant his end of service benefits and gratuity and also to issue him certificate of service.

(vii)Payment of N50,000,000.00 as damages for wrongful dismissal.

(viii)         Plus the cost of this action.

 

THE CASE BEFORE THE COURT

3. The claimant was offered his first appointment with the defendant in 1994, was confirmed and served the defendant since then in various capacities in different parts of the country and eventually rose to become the defendant’s sales representative in Gusau, Zamfara State, in 2007. His contract of employment was governed by the terms and conditions regulating the staff of the defendant (Human Resources Policies & Procedures Manual), marked as Exhibits F and G. On 19th January 2010, he was summarily dismissed, without compliance with the laid down procedures as procedures as provided by the conditions of service (referring to Exhibit CC). To the claimant, he was given a query which he responded to;however he never faced any disciplinary panel as required by the procedures of the claimant and the allegations for which he was dismissed did not warrant a dismissal, and the allegations against him were not substantiated. That the criminal proceeding filed against him terminated in his favour.

 

4. To the defendant, the claimant was accused of certain improprieties regarding customers’ accounts for which he was queried. Upon a consideration of the response of the claimant to the said query, the defendant, further to the report of the investigation, recommended the claimant's dismissal (Exhibit GG). That in view of the ‘reputational’ damage the actions of the claimant have caused the defendant, it undertook its disciplinary action in accordance with its procedure, which allows it to consider a written response of an offender and issue appropriate punishment. The defendant upon a consideration of the response of the claimant thereafter dismissed the claimant by the dismissal letter tendered in evidence.

 

THE SUBMISSIONS OF THE DEFENDANT

5. The defendant submitted two issues for determination:

(1)    Whether the claimant (sic) followed the procedure for the dismissal of the claimant under the terms of the contract of employment and Human Resources Procedure and Manual.

(2)    Whether the claimant is entitled to the reliefs claimed in the statement of facts.

 

6. Regarding issue (1), the defendant submitted that the basis of the claimant’s claim is that his dismissal was illegal and unlawful because it did not follow the procedure set out in Exhibit F, the Human Resources Policies & Procedures Manual. That from the totality of the averments in the claimant’s pleadings and his testimony as contained in his witness statement on oath, the gravamen of the claimant’s complaint are as follows:

(a) The query he responded to emanated from a person other than the claimant’s functional head.

(b) The complaint by the transporter leading to the query does not warrant a dismissal.

(c) The claimant never faced any disciplinary panel set up by the defendant’s Human ResourcesDepartment.

(d) The allegations were not substantiated or proved against him.

(e) The criminal charge brought against him in the High Court of Kebbi terminated in his favour.

 

7. That the law is trite that an employer will continue to retain the power to discipline its employees or any of them. That disciplinary measures to so impose range from issuance of query, warning letter, suspension, termination of employment to dismissal, referring to Calabar Cement Company Limited v. Daniel[1991] 4 NWLR (Pt. 188) 750. That except in some certain circumstances, especially where an employment is one with statutory flavour, the Court will not declare either termination of employment or dismissal from employment as null and void. This is because of the consequences that will ordinarily follow such a declaration, for instance, an order of reinstatement. This of course is premised on the common sense and trite saying that the Court will not force an unwilling employer to retain a willing employee and vice versa, citingAdebayo Sunday Joseph &ors v. Kwara State Polytechnic &ors[2013] LPELR-21398.That where an employer has the power to discipline an employee but fails to follow the laid down procedure for such discipline, the step taken by the employer can only be declared wrongful but certainly not null and void and the Court will apply the appropriate quantum as damages, citingMrs Laeticia Ebhotemen v. Nigerian Social Insurance Trust Fund Management Board Suit No: NICN/LA/350C/2012, thejudgement of which was delivered on 14-1-2016.

 

8. That the law of labour relations in Nigeria is very clear as the appellate Courts have held times and times again that in cases of employment the first hurdle to be crossed by the Court is to examine what are the terms and conditions of service in order to determine the contractual relationship between the employer and the employee. In doing this, the Court is bound to look at the contract of employment or any other accompanying agreements between the parties, referring to Exhibit F, the Human Resource Policies & Procedures Manual of the defendant, which at Clause 12.2.3 on page 49 of the Exhibit F provides as follows:

Behaviour constituting gross misconduct for which summary dismissal is normally appropriate:

•     Conviction of a criminal offence

•     Theft or fraud

•     Breach of Trust, falsifying of official documents and records, forgery

•     Acts of corruption or attempts to corrupt others whether they are staff members or not.

•     Arson

 

9. The defendant went on that under cross examination, the claimant admitted being handed a query which he duly responded to. Although titled,“Dereliction of Duty”, the gist of the query was how a staggering “N221,351.032”(Two Hundred and Twenty-One Million, Three Hundred and Fifty-One Thousand Naira Thirty-Two Kobo) could not be accounted for by reason of violation company procedures. That by the time the claimant responded to the query, not only did he admit that there was an outstanding staggering N68,275,224, he also admitted that there was suppression of STNs by certain persons including the customer representative. That under cross-examination, the claimant admitted that indeed there were anomalies and suppressions of STNs which he was aware of. He also admitted that he was the highest-ranking officer at the Gusau Branch. That despite that by Exhibit P1, which contains his principal duties and responsibilities, and which states that he must report any contraventions/non-compliance with the defendant’s policies, the claimant admitted under cross-examination that he did not report the infraction to any superior officer, since he is the most superior officer in Gusau. His response, therefore, was not acceptable to the defendant.

 

10. In the same vein, that a report was issued by the Management of the defendant upon consideration of the response by the claimant. The report was tendered in evidence and marked Exhibit GG. The summary of the report which recommendedthe claimant’s dismissal was among others that (i) there was connivance in the manipulation of the customer’s account (ii) a high level of negligence was shown on the part of the claimant. This resulted in the claimant’s dismissal as a clear case of negligence, corruption or corruption of others was established by the dereliction of duty by the claimant.It is, therefore, the defendant’s submission that the dismissal of the claimant was necessitated by (i) negligence (ii) dereliction of duty (iii) allowance of perpetration of corrupt practice or corruption by others as stated in the Human Resources Manual of the defendant. The defendant continued that in every case of dismissal or termination of appointment, which may vitally affect a man’s career or his pension, it is vitally important that the employee be given an opportunity to defend himself, citingOlatunbosun v. NISER[1988] 3 NWLR (Pt. 80) 25 at 52 andGarba v. University of Maiduguri & ors[1986] 1 NWLR (Pt. 18) at 550. That the opportunity to be heard is the opportunity for the claimant to state the reasons for his misconduct in this case, which opportunity he had both orally and in writing, referring to Olatunbosun v. NISER (supra). That the heavy weather made about not constituting a panel by the claimant is a total misconception of the law and the Human Resource Manual of the defendant. That the law only requires that fair hearing be accorded the employee which was done in this case. In any event, that the Human Resources Manual does not make it mandatory to call a panel but gives a discretion to call that panel, referring to paragraph 12.2.2 of the Manual, which lays the guidelines for disciplinary action. It states as follows:

Disciplinary action including dismissal may be imposed for unacceptable conduct.Therefore, disciplinary actions will:

• Be applied only in cases where good reason and clear evidence exist

• Be commensurate with sanctions applied in similar cases

• Be taken only in cases where staff members have been informed of the standardsexpected of them

• Permit the representation of the staff member by a colleague or union representatives at disciplinary proceedings

• Allow the staff members to respond to charges against them

• Allow staff members the right of appeal through grievance management process

 

11. To the defendant, from this provision there is nothing which makes the constitution of a panel a mandatory requirement for dismissal.The provision to all intents and purposes are mere guidelines for the exercise of disciplinary actions not mandatory stipulations. Regarding the underlined part, which references a disciplinary action, the correct interpretation of the underlined part is that where a disciplinary proceeding is conducted, the concerned staff member must be permitted representation either by a colleague or union representatives at such proceedings. That the provision did not by any stretch of imagination prescribe that a disciplinary panel/proceeding must be constituted in any disciplinary situation. The defendant thus submitted that a disciplinary panel is not a condition precedent to exercise the disciplinary action of dismissal. That what is necessary is that the employee/claimant is notified of the infraction and he was given an opportunity to present his own side of the story before the disciplinary action is meted out.

 

12. Another issue raised by the claimant was that the query issued by the defendant did not emanate from his functional head. To the defendant, there is no provision in the Employees’ Manual which makes it mandatory that a query to a staff must be issued by his functional head. That labour jurisprudence in Nigeria is developed enough to justify any query issued by a superior officer or the Human Resource of the organisation.

 

13. A further issue raised was that the criminal charge filed against the claimant terminated in his favour. To the defendant, our employment law is trite beyond any shadow of confusion or obscurity that the investigation by the police or the prosecution or the conviction of an employee before the law court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct, referring toFrancis C. Arinzev. First Bank of Nigeria Ltd(citation not supplied).

 

14. The last issue, which the claimant raised, was that the allegations against him was not substantiated. To the defendant, this Court is not invited to sit on appeal on the disciplinary action taken against the claimant. That aCourt considers whether or not the law and the due process has been followed in accordance with the contractual procedures.In any event, that by a combination of the response to the query and the answers given under cross-examination, the claimant admitted infractions and failure to comply with the defendant’s procedure further to which over N68,000,000 was lost to the enrichment of others through fraud. That this is the basis for the dismissal of the claimant, which basis is justified in law. Additionally, that DW during cross-examination answered that the reason for the dismissal of the claimant is not contained in the definition of gross misconduct in paragraph 12.2.3. However, that it is clear that the acts of corruption and corrupting others is clearly one of the behaviours constituting gross misconduct. That this fact is clear from the Human Resource Manual and the Court is enjoined to consider this provision despite that the witness was under a mistaken belief when she answered the question under cross-examination.It is thus the defendant’s submission that the dismissal of the claimant followed the due process and was in accordance with Exhibit F, the Employee Manual.

 

15. For issue (2) i.e. whether the claimant is entitled to the reliefs he claims, the defendant submitted that the claimant had put up sundry claims before the Court,the first three of which assume in their effect that the claimant is seeking orders which is to the effect that if the dismissal is taken as void, then the contract will continue to subsist as continuing. That the inexorable effect is that the dismissal did not occur in law;as such the claimant is seeking reliefs which are to the effect that he was never dismissed because if the dismissal is null and void, it meant that the dismissal never occurred. The defendant went on that since this is the way these reliefs have been couched, the claimant indirectly seeks a continuation of his employment contract which is analogous to reinstatement. That this set of claims have no basis whatsoever in law and cannot be granted under our labour law jurisprudence. That these claims take their roots from a statutorily protected employment, and so in so far as they seek the effect of treating the employment as validly subsisting, such is generally not the remedy for breach of contract of service. That special circumstances will be required before such an order is made; for example, the contract of employment has a legal or statutory flavour thus putting it over and above ordinary master and servant relationship. Also when a special status such as tenure of public office is attached to the contract of employment. That in this case no such special circumstance is disclosed to place the relationship between the parties herein beyond the ordinary contractual/service contract relationship. Accordingly, that the claim to declare the dismissal void and the contract subsisting is unfounded, urging the Court to so hold, and referring to Ifeta v. SPDC (Nig) Ltd[2006] 8 NWLR (Pt. 983) 585 at 606-607,Olaniyan v. Unilag [1985] 2 NWLR (Pt. 9) 599 andShitta Bey v. FSPC[1981] 1 SC 40.

 

16. The defendant proceeded that the orders which are capable of being made in these circumstances (assuming the court comes to the conclusion that the dismissal was not in accordance with procedure) are to declare same unlawful and award the appropriate quantum of damages for breach. However, that the claimant has not asked that the Court to declare that the dismissal is a breach, rather he has asked that the Court declares the dismissal as null and void. That the law is trite that a Court cannot and must not grant any claims or reliefs not sought, citingVeepee Industries Ltd v. Cocoa Industries Ltd [2008] LPELR-3461(SC).Therefore, these reliefs must fail not having any relationship with the facts averred in the claim.

 

17 To the defendant, the fact that these claims are not related to the facts, and not apposite in the circumstances of this case, being a case of alleged unlawful dismissal, will not preclude it form addressing each of the head of claims on their merit to show that these claims are unsupportable in the circumstances. That in cases of this nature, once fair hearing has been accorded the employee, Olatunbosun v. NISER(supra) held that the Court will not hold otherwise that the dismissal is unlawful. That the claimant was afforded a fair hearing in this case and was also allowed to defend himself and his defence was considered. That his statement seeking to exonerate himself was considered by the panel. Therefore, having afforded him fair hearing, the claimant cannot be held to complain.

 

18. That the claimant further seeks as the fourth relief (relief iv), “A declaration that upon the determination of contract of appointment hitherto existing between the claimant and the defendant and/or its privies, the claimant is entitled to payment of end of service benefits, gratuity and issuance of certificate of service”. To the defendant, this fourth claim does not flow from the first three claims. That the first three claims suggest that the dismissal being void, the employment subsist. This fourth relief however seeks terminal benefits.It is thus the defendant’s submission that a party cannot be approbating and reprobating at the same time, citingOladapo & anor v. Bank of the North Ltd &anor[2000] LPELR-5284(CA). That it is a clear case of blowing hot and cold at the same time and the claimant is seeking reliefs that do not flow together, urging the Court to dismiss this head of claim for being non-sequitur with the preceding head of claims, referring toAdo (Rtd) v. Hon. Commissioner for Works, Benue State & ors [2007] LPELR-8324(CA).

 

19 That assuming without conceding that the Court is inclined to favourably considering the claimant’s claim, the question is: are the claims the correct quantum in the circumstances? As submitted above, that the reliefs sought by the claimant are such that the claimant wants the Court to treat his contract of employment as subsisting, something the Court cannot grant. That in the event that the Court finds the defendant liable, the correct cause of action will be for a wrongful dismissal. That appellate authorities have aptly stated the quantum for payment of damages for wrongful dismissal. However, that reliefs (v), (vi) and (vii) are the three consequential reliefs the claimant is praying for. That the position of the law is very clear on the quantum payable when an employee claims that his employment has been unlawfully terminated or dismissed, which is, apart from other entitlements, limited to the amount which would have been earned by the effected employee over the period of notice, citingBemil Nig Ltd v. MarcusEmeribe &ors [2009] LPELR-8732(CA).

 

20. The defendant went on that the gravamen of the claimant is that the procedure for his dismissal was not followed. That it follows, therefore, that because his employment is not one with statutory flavour, the Court can only impose so much as would have been earned if the right notice or procedure was followed. That assuming without conceding that proper procedure was not followed, negligence of duty (dereliction of duty) would have been a basis to terminate the claimant’s employment by termination. In any event, that since the disengagement of theclaimant was conceived as a disciplinary action, the payment of any benefits will not apply; and that if any amount was to be paid, it would be so much the claimant has worked for the month which will be his one month salary. That by Exhibit T-12, the basic salary of the claimant is N2,077, 038.45, whichif divided by twelve (12) is N173,0386.50.

 

21. To the defendant, the claim for gratuity and benefits does not arise. That the contributory pension scheme had overtaken the issue of gratuity since the claimant has testified under oath that his Pension Fund Administrator chosen by him is Stanbic IBTC PFA. That the claim for end of service benefits would not arise as the quantum does not cover such.

 

22. What is more, that the claim for “an order commanding the defendant to pay the salaries, allowances, bonuses and entitlements of the claimant from the 19th January 2010 up to the date of judgement” has no legal basis. That this claim is unfounded as far as the claimant was dismissed lawfully in accordance with his contract and the employee handbook. Furthermore, that assuming without conceding to any impropriety in the dismissal of the claimant, an employee whose employment is terminated owes himself a duty to mitigate his damages;he cannot claim salaries and allowances on a continuous basis on account of an alleged unlawful termination, citing British Airways v. Makanjuola[1993] 8 NWLR (Pt. 311) 276 at 288. Also, that the claimant has no right to remain in that employment till judgement since there is a provision for termination before retirement. In any event, it is trite that an employee cannot be paid for the time he was not at work, save for statutory protected employees, citingOlatunbosun v. NISER[1988] 3 NWLR (Pt. 80) 25.

 

23. On the claimant’s claim for general damages, the defendant submitted that the courts have held that the courts cannot and do not award general damages in cases of breach of contract as general damages are not cognizable for unlawful termination of employment. That the claimant’s claim herein is for general damages, which the courts have repeatedly frowned at, citingStephen Okongwu v. NNPC[1989] 4 NWLR (Pt. 115) 296 at 323. That given this authority, the claimant’s claim for general damages must fail because the matters for which general damages is being sought are remote. That to the extent that general damages are not cognisable in the award of damages for breach of contract, there is no legal basis of awarding same, urging the Court to so hold. In conclusion, the defendant urged the Court to dismiss the claimant’s suit with substantial cost for lacking in merit, gold-digging and vexatious.

 

THE SUBMISSIONS OF THE CLAIMANT

24. The claimant submitted a sole issue for determination i.e. whether or not the claimant’s dismissal by the defendant is wrongful to warrant the claimant the reliefs claimed in this suit. To the claimant, this sole issue he identified encapsulates the two issues identified by the defendant. That it is trite law that when an employee complains of wrongful dismissal from his employment, he has the onus to place before the Court the terms and conditions of his contract of employment, and prove the manner in which the terms and conditions of his employment were breached by the employer. That it must be borne in mind that the terms of contract of service forms the bedrock of any case where the issue of wrongful termination of employment is in issue, referring to Udo v. CSNC[2001] 22 WRN 53;[2001] 14 NWLR (Pt.731)116, FMC, Ado-Ekiti v. Alabi[2011] 38 WRN 80 at 101, andOlomu Oil Palm Co. Ltd v. Iserhierhien[2001] 21 WRN 21; [2001] 16 NWLR (Pt.710) 660 at 673.

 

25. The claimant went on that from the evidence he adduced, which is consistent with his pleadings in the statement of claim, it has been established that he had been a confirmed staff of the defendant (referring to Exhibits C and E), in an employment that is covered by terms and conditions of service, particularly the procedures for determination (referring to Exhibits F and G). That both partiesagree that the contract between them is governed by the Human Resources Policies and Procedure Manual (Exhibits F and G). That he had been working diligently, with merit awards and recommendation from the defendant for good performance (Exhibits Q1 to Q12, S1 to S5, T1 to T12 and V1 to V3) without any disciplinary action carried in accordance with the terms and conditions (Exhibit F). That these pieces of evidence adduced by the claimant remains unchallenged or uncontradicted by the defendant either under cross-examination or by leading evidence to rebut the case established by the claimant. That the law is trite that when a piece of evidence is unchallenged or uncontradicted by the opposing party who had an opportunity to controvert the evidence, the Court has no alternative but to believe the evidence, citing Mobil Prod. (Nig) Unltd v. Udo [2008] 36 WRN 53 at 90,Adim v. Nigeria Bottling Co. Ltd [2010] 5 SCM 1 at 17-18 and Obeneche & ors v. Akunsobi & ors[2010] 8 SCM 126 at 149. That the law is settled beyond peradventure that on a master and servant relationship governed by written contract, not subjected to any statutory restriction, as in the instant case, the employer is bound to comply with the conditions when it comes to termination of appointment of the employee, otherwise it will be held to be wrongful, citing Daodu v. UBA Plc[2004] 9 NWLR (Pt.878) 276 at 292, NRMAFC v. Johnson[2007] 49 WRN 123 at 150-151 and Efuwape v. UBA Plc[2007] 37 WRN 179 at 201.

 

26. The claimant continued that in the instant case, the relevant provisions dealing with the procedures for disciplinary action that may culminate into dismissal are spelt out at pages 48 to 57 of Exhibit F. that while the claimant complains that the way and manner he was dismissed vie Exhibit CC from his employment, breached the conditions of service, the defendant contends that the said dismissal was in accordance with the condition of service on account of alleged financial irregularities. To the claimant, a community reading of the relevant provisions on disciplinary procedure in the conditions of service will reveal undoubtedly that it envisages the observance of natural justice, amongst other acceptable standards. For ease of reference Exhibit F particularly at pages 49, 50, 51, 54 and 57 clauses 12.2.2, 12.2.3, 12.2.4, 12.2.5, 12.3.4, 13.1.1, 13.2.18 and 13.2.19 respectively provide:

12.2.2 Disciplinary action including dismissal may be imposed for unacceptable conduct.Therefore disciplinary actions will:

• Be applied only in cases where good reason and evidence exist.

• Be commensurate with the offence committed.

• Be fair and consistent with sanctions applied in similar cases.

• Be taken only in cases where staff members have been informed of the standards expected of them.

• Permit representation of the staff member by a colleague or union representative at disciplinary proceedings.

• Allow the staff members the right to respond to charges against them.

• Allow the staff members the right to appeal through governance management process.

 

12.2.3 Behaviour constituting grossmisconduct for which summary dismissal is normally appropriate:

* Conviction of a criminal offence

* Theft or fraud

* Breach of trust, falsifying of official documents and records, forgery.

* Acts of corruption or attempts to corrupt others whether they are staff members or not.

* Arson

* Malicious damage to the company’s property.

* Physical assault

* Unauthorized possession of dangerous items in the workplace e.g. guns, daggers, acids, etc.

 

12.2.4 Behaviour constituting misconduct for which termination is normally appropriate:

* Abusive, aggressive or immoral behavior.

- Within the company’s premises; or

- In public while on the company’s duty.

* Sexual Harassment or duty

* Concealment of fraud and/or malpractice

* Undue influence (nepotism, favouritism, godfatherismotic)

* Negligence of duty

* Prolonged absenteeism without authorization.

* Drunkenness and drug abuse on duty

* Abscondment

* Habitual late coming

* Quarrelling on duty.

* Smoking on duty

* Illegal strikes

* Unauthorized disclosure of the company’s confidential information.

* Use of unauthorized personnel to carry out the company’s taste.

* Engaging in activities that conflict with the company’s interest.

* Gross mismanagement of personal finances.

 

12.2.5 Behaviour constituting misconduct for which a warning is normally appropriate:

* Tardiness

* Absenteeism

* Eating in the office

* Poor dressing

* Non-compliance with established policies and procedures

* Sleeping on duty

 

12.3.4 Query

Where a staff member’s conduct is considered unsatisfactory, but not sufficiently so as to be regarded as gross misconduct, such a staff member shall be given verbal warnings to this effect by his immediate supervisor. If such unsatisfactory behavior continues, the staff member shall be given a written query by his supervisor to which he will be required to respond. The supervisor shall then forward to the Human Resources Department the query and the staff member’s response along with his comments on the response and the recommended disciplinary actions, if any. This information shall be included in the staff member’s personnel records.

 

13.1.1 The company may, with proper and lawful reason, at any time and in the manner prescribed in its contract of employment terminate or dismiss a staff member.

 

13.2.18 If an offence is committed by a staff member against the company’s interest, which is considered by the company to be so serious as to warrant the dismissal of the staff member from the company, the staff member should be ordered to leave the company’s premises and services immediately and told the reason(s). Only functional heads can make this order.

 

13.2.19 A written confirmation of the order must be conveyed to the staff member without delay by the Human Resources Department, which will then proceed to disengage the staff member in accordance with the relevant disciplinary provisions.

 

27. To the claimant, it is clear from the forgoing provisions that the contract of employment between him and the defendant (Exhibit F)provides not only the different categories of conducts that would constitute either “misconduct” or “gross misconduct” that would warrant either warning, or termination and or dismissal, depending on the degree of severity of the conduct, but also the steps or procedure in any of such cases which invariably underscored the need to ensure that rules of natural justice are observed in investigations or proceedings of domestic panel culminating in the dismissal of an employee. That from the evidence he adduced and also elicited under cross-examination from the defendant’s witness, it is established that his dismissalwas never in accordance with the said relevant disciplinary provisions. That the query, Exhibit BB1, issued to him, to which he responded in Exhibit BB2, did not emanate from his supervisor or functional head, but rather the General Manager Operations; there was no investigation panel set up to investigate, showing the place of its sittings, the members of the panel, letter inviting him to attend the investigation panel and the conclusion/findings of the panel. Rather, against the dictates of Exhibit F that ensures the observance of the rules of natural justice, is Exhibit GG, prepared by one K.O. Olisa, Manager, HR Operations, which clearly is no evidence that claimant was afforded opportunity to defend himself, no report of any investigation panel with which this Court can appraise the procedure adopted. That DW admitted under cross-examination that there was no record of disciplinary proceedings against the claimant. That it is trite law that the Court must be watchful to ensure that the rules of natural justice, as clearly encapsulated in the relevant provisions of Exhibit F, are not breached in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, citing Olatunbosun v. NISER[1988] 3 NWLR (Pt.80) 25, SPDCN v. Olanrewaju[2009] 6 WRN 53 at 72 and Sabiu v. Kwara State Poly, Ilorin[2009] 27 WRN 120 at 157-158.

 

28. It is the contention of the defendant that the claimant was dismissed on grounds of negligence, dereliction of duty and allowance of perpetration of corrupt practice or corruption by others, to justify the summary dismissal of the claimant. To the claimant, suffice it to state that Exhibit CC never stated any of such acts as the reason for the summary dismissal. That the defendant in paragraphs 11f and 15 of its statement of defence pleaded reasons for dismissal as gross negligence, dereliction of duty and non-compliance with the company’s established policies and procedures, without alluding to acts of corruption. That Exhibit BB1, being the query issued to the claimant, responded to by Exhibit BB2, only referred to dereliction of duty, without reference to either acts of gross negligence, or non-compliance with the company’s established policies and procedures or acts of corruption. That DW under cross-examination admitted that the act complained of in Exhibit GG does not constitute “gross misconduct” defined in Exhibit F and that the reason for dismissal was not stated in Exhibit CC.That the law is settled that an employer, in a master and servant contractual relationship, is not bound to give reasons for terminating appointment of his employee but where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court, citing SPDCN v. Olanrewaju(supra) at 72, Oloruntoba v. Abdul-Raheem[2009] 20 WRN 1 at 54 andIOH, Ahmadu Bello University Hospital Management Board v. Anyip[2011] 44 WRN 1 at 15-16

 

29. It is the claimant’s submission that from the available evidence before the Court, there was no good or clear evidence that he committed the alleged offences of gross misconduct to warrant his dismissal and the defendant failed to justify the dismissal. That it is imperative to note that “negligence of duty” or dereliction of duty does not constitute one of the acts that can warrant summary dismissal, but rather termination, referring to paragraph 12.2.4 reproduced above. Also, that the act of noncompliance with the company’s established policies and procedures arising from the alleged failure of the claimant to report the financial irregularities to his supervisor as elicited under cross-examination is also not “gross misconduct” to warrant summary dismissal, but rather misconduct that attracts only warning, referring to paragraph 12.2.5 as reproduced above. That apart from the admission by DW under cross-examination that the stated acts do not constitute acts of “gross misconduct”, there is Exhibit U11, letter of annual leave granted the claimant and it was during the period of the leave that the alleged financial irregularities in Exhibit BB1 occurred. There are also Exhibits V1, V2 and V3, being the defendant’s letters of recognition of good performance and service by the claimant. The claimant accordingly urged the Court to find and hold that there is no good and clear evidence before the Court on the alleged offences of gross misconduct against the claimant.

 

30. That flowing from the foregoing, it is clear that the defendant did not comply with the conditions in its Manual as an employee’s wrongdoing must be specific and he is entitled to a formal notice of such wrongdoing and a hearing on that specific act, citing Aiyefan v. Nigerian Institute for Oil Palm Research [1987] 3 NWLR (Pt.59)48 and Adeniyi v. Governing Council Yaba Tech [1993] 6 NWLR (Pt.300) 426.Therefore, that the claimant is entitled to grant of reliefs (i), (ii) and (iv), urging the Court to so hold. That it is trite that he who hires can fire but the employer must observe and adhere to the conditions under which an employee is hired otherwise the employer will be held liable for unlawful termination of the services of the employee, citingGaruba v. Kwara Investment Co. Ltd[2005] 1 SC 11 at 80.Therefore, the defendant having failed to show good evidence that it complied with the procedure in dismissing summarily the appointment of the claimant, the claimant is entitled to the grant of relief (iii), which is an order setting aside the purported dismissal; urging the Court to so hold.

 

31. The defendant had contended that the claimant is not entitled to payment of his salaries, allowances, bonus and other damages. that it is settled law that an employee whose contract is wrongfully terminated is entitled to damages calculated as the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in another employment, citingSPDCN v. Olanrewaju(supra) at 80 and Okongwu v. NNPC[1989] 4 NWLR (Pt . 115) 296. That from the evidence before this Court, the claimant has established his entitlement to payment of his salaries, allowances, bonuses, other damages and issuance of certificate of service having regard to the terms of the conditions of service, referring to the testimony of CW1, the claimant, whose evidence remain unchallenged and Exhibits G, R, T1 to T12, W1A, W2A, W2B, W3A and W3B, X, Y, Z, and AA1 to AA12. That under Exhibit F the normal retirement age is attainment of 60 years in service, while early retirement is either 50, or 45 or 40 years as the case may be, referring to pages 58, 59 and 60 of Exhibit F. That from 1994 to 2010, the claimant spent 26 years and was not due to either normal or early retirement, which informed the defendant’s rejection of claimant’s application for voluntary retirement in Exhibit R, but the defendant abruptly brought to an end the claimant’s employment by the purported dismissal, without strict compliance with the conditions of service. Therefore, that the Court should find and hold that the claimant is entitled to the grant of reliefs (v) and (vi), calculated on the bases of the depositions in paragraphs 23, 24 and 25 of CW1.

 

32. On relief 6 being a claim of N50,000,000.00 as general damages for wrongful dismissal, the claimant conceded that it is not available to him in view of the Supreme Court decision in Osisanya v. Afribank (Nig)Plc[2007] 6 NWLR (Pt.1031) 565.

 

33. On relief 7 i.e. cost of prosecuting this suit, that Order 55 Rule 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 empowers this Court to indemnify a successful party for the expenses to which the party has been necessarily put in the proceedings. That arising from the forgoing, the Court should hold that the claimant is entitled to cost of this action. In conclusion, the claimant urged the Court to find that he has discharged the onus of proof on him and to hold that his dismissal was wrongful and to award all the reliefs sought for by him (except relief vi), with substantial cost of prosecuting the suit.

 

34. The defendant did not react on points of law.

 

COURT’S DECISION

35. I have carefully considered the processes filed and the submissions of the parties. The claimant’s grouse in this case relates to his dismissal by the defendant. In considering the merit of the claimant’s case, I must note that the claimant abandoned his claim for relief (vii) i.e. the claim for the “payment of N50,000,000.00 as damages for wrongful dismissal”. This being so, relief (vii) is hereby dismissed. I so hold.

 

36. By a query memo Ref. No. AP/RSD/AAB/10/1305 dated 4th January 2010 from RSM and signed by Gboyega Banjoko (Exhibit BB1), the defendant queried the claimant in the following words:

It was recently discovered that products (PMS) supplied to your territory through Gusau Depot on STN were not properly handled in line with company procedures.

 

The outstanding balances in some customers’ accounts could not be accounted for or are being disputed. Discoveries in this regard added up to N221,351,032.00…as at the time of this memo. This confirmed a flagrant violation of company’s procedures and policies and high risk exposure.

 

You are therefore expected to explain in a very convincing manner why serious disciplinary action should not be taken against you for dereliction of duty.

 

You are required to respond in writing within 48 hours upon the receipt of this memo.

 

37. The claimant as CW1 explained when cross-examined that STN means Stock Transfer Notice. The question that presently arises is: what was the claimant queried for and for which he must answer and either be disciplined or not? A clear reading of Exhibit BB1 will show that the claimant was queried for dereliction of duty. The third paragraph of Exhibit BB1 is very clear on this: “You are…to explain…why serious disciplinary action should not be taken against you for dereliction of duty”. I so find and hold. All the talk in Exhibit BB1 about products (PMS) not being properly handled and outstanding balances in some customers’ accounts not being accounted for or are disputed, which added up to N221,351,032.00, confirming thus a flagrant violation of company’s procedures and policies and high risk exposure, all gear up to the charge of dereliction of duty; nothing else. I so find and hold.

 

38. The claimant was then charged with dereliction of duty. He was expected to answer to this charge and either be disciplined for it or exonerated. So when the defendant submitted that the dismissal of the claimant was necessitated by (i) negligence (ii) dereliction of duty (iii) allowance of perpetration of corrupt practice or corruption by others as stated in the Human Resources Manual of the defendant, the defendant clearly went beyond the pale. The defendant cannot charge the claimant for dereliction of duty and then turn around much later to say the charge included “allowance of perpetration of corrupt practice or corruption by others”. The defendant cannot charge the claimant for one infraction, ask him to respond to the infraction and then find him guilty of an infraction he did not ask the claimant to respond to. I so hold. To the extent that dereliction of duty implies negligence, the additional charge of negligence may be allowed as submitted by the defendant, but certainly not the charge of corruption. The point remains that Exhibit BB1 queried the claimant for dereliction of duty; and that is the charge the claimant was meant to answer - nothing else.

 

39. Exhibit BB2, a memo Ref. No. AP/RSG/MAC/01/001 dated 5th January 2010 is the claimant’s answer to the query (Exhibit BB1). In his answer, the claimant maintained that the alleged Stock Transfer Notices (STNs) in question not handled in accordance with company procedures was not tenable, and giving his reasons for reaching that conclusion. Of note is the claimant’s first bullet point response in the third paragraph of Exhibit BB2 in terms of the outstanding balance of N221,351,032.00K, which the claimant said was unfounded. In the claimant’s words:

The actual outstanding and disputed credit balance against Alh. Sule Basaura was covered by SO80036707 and SO80036668 N62,500,000.00K and N5,775,224.00K respectively: total of N68,275,224.00K duly invoiced in his favour contested but proved wrong by the visiting team of RM-NWR and DSMK…

The claimant went on in the second bullet point to state that “the genesis of the crisis on the credit facility granted to Alh. S. Basaura started when I was on leave…”

 

40. All things being equal, the query to the claimant and his answer is sufficient to answer the complaint of want of fair hearing as per relief (ii) given the concurring judgment of His Lordship Hon. Justice Rhodes-Vivour, JSC in Imonikhe v. Unity Bank Plc [2011] LPELR-1503(SC); [2011] 12 NWLR (Pt. 1262) 624 SC, where His Lordship held that 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. However, there is the additional issue of non-compliance with Exhibit F, the Human Resource Policies & Procedures Manual of the defendant. I shall return to this shortly.

 

41. Exhibit GG dated 12th January 2010 and titled, “File Note Dereliction of Duty…”, is some kind of report on the queries issued to the claimant and another staff. It emanated from “K. O. Olisa, Manager, HR Operations” and was indicated at the last page to be “for Management’s consideration”. I must point out here two things: other than the dismissal letter (Exhibit CC) itself, there is nothing before the Court to show the Management’s decision on Exhibit GG since it was submitted for Management’s consideration. The minutes of management’s meeting where Exhibit GG was considered, if any, was not placed before the Court. Secondly, Exhibit GG does not suggest that other than “K. O. Olisa, Manager HR Operations” there was any other person who considered the claimant’s query and answer as to arrive at the conclusions that Exhibit GG reached. This remains so despite that the findings in Exhibit GG is titled “HR Findings” and it is commenced with the words, “We confirmed that…” This said, I turn to Exhibit GG itself.

 

42. In terms of this case, Exhibit GG found as follows:

•     …a dealer’s account belonging to Alh. Basaura…was being manipulated by his manager but could not have been possible without the connivance of a staff.

•     This started in September 2009 whilst the Sales Rep was on his annual leave, an indication that the relieving Depot Supervisor, Mr. M. A. Abdulmumin was in charge and in his double capacity, must have allowed the manipulation of the account.

•     The Sales Rep on resumption of duty and being knowledgeable of a credit facility granted to his customer did not carry out any reconciliation to confirm the state of the account.

•     The Sales Rep also allowed the same account to be used by the transporter’s rep claiming he believed that the transporter’s manager was resting his boss’s outstanding STNs based on the schedule he provided with the cheque.

•     In addition to the above and in the investigations on the case of irregularities of large number of GIT accruing to three transporters…in Gusau territory, Mr. Chiroma while acting for the Depot Supervisor who was on leave, received products into the warehouse without sighting them. This indicated that the products were rested without the corresponding payments and or documentation thereby exposing the company financially.

•     That the Depot Supervisor on resumption from his leave in relation to his responsibilities did not reconcile the accounts of his transporters to know the state of affairs as he settled down.

 

43. In the section tagged “Summary”, Exhibit GG held thus:

•     There was connivance in this case of the manipulation of Alh Basaura’s account with staff participation.

•     There was a case of unauthorized use of a customer’s account.

•     A high level of negligence displayed by the Sales Rep and Depot Supervisor in carrying out their responsibilities.

•     There was a systematic suppression of STNs.

•     The resultant effect of the actions of both the Sales Rep and Depot Supervisor promoted fraud that led to loss of funds for both the company and the owner of the manipulated account, Alh. Basaura.

 

44. For the claimant, Exhibit GG then recommended thus:

•     Mr Chiroma displayed a high level of negligence on duty by not managing a credit account to the expectation of the company. He also concealed information of fraud and possible malpractice on a customer’s account; didn’t protect the interest of the company and his customer; systematically suppressed STNs - a fraudulent act.

•     Mr. Chiroma’s actions in accordance with our Human Resources Manual constitute behaviour for which summary dismissal shall be appropriate.

 

45. The defendant accepted the recommendation as to summary dismissal for in Exhibit CC dated 19th January 2010, the defendant dismissed the claimant with effect from 19th January 2010; but that his salary and allowances will be paid up to and including 19th January 2010. Exhibit CC did not indicate the reason for the summary dismissal. DW under cross-examination acknowledged this fact. The pertinent question that arises is: can the findings in Exhibit GG found a summary dismissal given Exhibit F, the Human Resources Manual? Only a recourse to the provisions of Exhibit F can answer this question. Exhibit GG found that Alh. Basaura’s account was manipulated by his manager but could not have been possible without the connivance of a staff. Who this staff is was not disclosed. So this part of the finding is conjecture/guesswork. Exhibit GG found that this manipulation started when the claimant (Sales Rep - the query, Exhibit BB1, to the claimant described him as Sales Rep, Gusau Territory) was on leave. This means that the claimant is not blameworthy for the manipulation. Exhibit GG blames the claimant for not carrying out reconciliation to confirm the state of the account because the claimant is “knowledgeable of a credit facility granted to his customer”. Exhibit GG found that the claimant “also allowed the same account to be used by the transporter’s rep claiming he believed that the transporter’s manager was resting his boss’s outstanding STNs based on the schedule he provided with the cheque”. Lastly, Exhibit GG found that “in the investigations on the case of irregularities of large number of GIT accruing to three transporters…in Gusau territory, Mr. Chiroma while acting for the Depot Supervisor who was on leave, received products into the warehouse without sighting them. This indicated that the products were rested without the corresponding payments and or documentation thereby exposing the company financially”.

 

46. All of these findings point to dereliction of duty/negligence, but certainly not fraud or corruption. Paragraph 12.2.3 of Exhibit F lays down the conduct that constitutes gross misconduct and thus merits summary dismissal. DW under cross-examination confirmed this much. Dereliction of duty/negligence is not one of them. Paragraph 12.2.4 of Exhibit F lays down behaviour constituting misconduct for which termination is normally appropriate. Concealment of fraud and/or malpractice and Negligence of duty are listed amongst the constituting behaviour. Exhibit GG found a high level of negligence displayed by the claimant and concluded that this promoted fraud that led to loss of funds for the company. The promotion of fraud is said to be resultant effect of the high negligence of including the claimant. This does not take away the fact that what the claimant is guilty of is high level of negligence, the punishment of which, by Exhibit F, is termination, not summary dismissal. I so find and hold. DW under cross-examination testified that in Exhibit GG, the claimant was summarily dismissed because he failed to give convincing reasons why N221,351,032.50 could not be accounted for in his territory; but that this reason is not one of the gross misconduct grounds in Exhibit F. The defendant was accordingly too harsh in meting out the disciplinary action of dismissal. While in law an employer has the discretion to give a lesser punishment to an employee, he has no discretion to give a higher punishment than that prescribed. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC. The summary dismissal of the claimant, being higher than that prescribed, is accordingly a higher punishment given to the claimant. The proper punishment is termination under paragraph 12.2.4, not summary dismissal under paragraph 12.2.3, of Exhibit F. I so find and hold. The argument of the defendant that this Court is not invited to sit on appeal on the disciplinary action taken against the claimant is one made with no authority cited. The said argument is accordingly discountenanced.

 

47. Referring to paragraph 12.2.2 of the Human Resource Policies & Procedures Manual of the defendant (Exhibit F), the defendant submitted that there is nothing in itthat makes the constitution of a panel a mandatory requirement for dismissal. That the provision to all intents and purposes consist of mere guidelines for the exercise of disciplinary actions not mandatory stipulations. As for the fifth bullet point, which refers to disciplinary proceedings, that the correct interpretation of it is that where disciplinary proceedingsare conducted, the concerned staff member must be permitted representation either by a colleague or union representatives at such proceedings. That the provision did not by any stretch of imagination prescribe that a disciplinary panel/proceeding must be constituted in any disciplinary situation.

 

48. By this submission, the defendant acknowledged that it did not set up any disciplinary panel to try the claimant for the infractions he was accused of. DW under cross-examination confirmed that from Exhibit GG there is no evidence that the claimant appeared in any disciplinary committee. The question then is whether there is an obligation on the defendant to set up a disciplinary panel under paragraph 12.2.2 of Exhibit F. The fifth bullet point in paragraph 12.2.2 of Exhibit F actually provides that: “…disciplinary actions will…Permit the representation of the staff member by a colleague or union representatives at disciplinary proceedings”. The key words here are, “will permit”. The defendant’s argument is that the phrase applies only if the defendant decides to set up a disciplinary panel, which decision is discretionary, not mandatory. By the New Oxford American Dictionary the word “will” as a verb connotes a number of meanings: “expressing a strong intention or assertion about the future”; “expressing inevitable events”; “expressing facts about ability or capacity”; and “expressing habitual behavior:” The same Dictionary defines “permit” to mean: “give authorization or consent to (someone) to do something” i.e. “authorize or give permission for (something)”, “provide an opportunity or scope for (something) to take place; make possible” and “allow for; admit of”.

 

49. From these respective definitions of the words “will” and “permit”, when paragraph 12.2.2 of Exhibit F talked of “disciplinary actions will…permit the representation of the staff member by a colleague or union representatives at disciplinary proceedings”, it did not suggest that the defendant has an option to set up the disciplinary panel or not to set it up. The only discretion allowed the defendant is in terms of the first sentence of paragraph 12.2.2 i.e. “Disciplinary action including dismissal may be imposed for unacceptable conduct”. The choice here is that the defendant has the option of imposing disciplinary action; but once this choice to impose disciplinary action is made, then the bullet points in paragraph 12.2.2 of Exhibit F apply. By issuing a query to the claimant, which the claimant answered, and for which somehow Exhibit GG was the outcome, the defendant made a choice of disciplinary action for which the setting up of a disciplinary panel is mandatory. This means that there is no choice as to applicability of the said bullet points. If there was a choice as to the bullet points, the defendant, for instance, may even opt out of the sixth bullet point i.e. “allow the staff members to respond to charges against them”. Is it imaginable that the defendant can dispense with the employee’s right to respond to charges against him? Certainly not! The defendant’s counsel himself acknowledged the inevitability of this right of the claimant to respond to charges against him. The defendant cannot pick and choose which of the bullet points to apply and which not to. It is my holding, therefore, that the setting up of the disciplinary panel by the defendant is mandatory, not discretionary. Contrary to the submission of the defendant, a disciplinary panel/proceeding must be constituted in any disciplinary situation. I so hold.

 

50. The claimant had argued that the query issued by the defendant to him did not emanate from his functional head. Paragraph 12.3.4 of Exhibit F dealing with Query has it that “if…unsatisfactory behavior continues, the staff member shall be given a written query by his supervisor to which he will be required to respond…” The literal interpretation of this provision is that a query can only come from the supervisor of the claimant. I so hold. Exhibit BB1, the query, was issued by RSM, who the claimant said was not his supervisor. The defendant did not establish that RSM is the claimant’s supervisor. This means that the evidence of the claimant that the query was issued by other than his supervisor stands. I so find. This means that the defendant was in breach of paragraph 12.3.4 of Exhibit F when RSM, not being the claimant’s supervisor, issued the query to him. I so hold.

 

51. A further issue raised was that the criminal charge filed against the claimant terminated in his favour. Paragraph 12.2.3 of Exhibit F has it that conviction for a criminal offence is behaviour constituting gross misconduct for which summary dismissal is normally appropriate. By Exhibit DD dated 2nd August 2012, which is the ruling of a three-man panel of the High Court of Kebbi State sitting at Birnin Kebbi, the claimant’s challenge as to the ruling of the Chief Magistrate Court I Birnin Kebbi of 26th October 2011 challenging jurisdiction succeeded. This means that the claimant was not convicted of any criminal offence. This being so, the claimant did not act in any manner constituting gross misconduct  for which summary dismissal is the appropriate penalty. I so find and hold.

 

52. It is the contention of the defendant that since the disengagement of the claimant was conceived as a disciplinary action, the payment of any benefits will not apply; and that if any amount was to be paid, it would be so much the claimant has worked for the month which will be his one month salary. Exhibit CC indicated that the claimant will be paid his salary and allowances up to and including 19th January 2010, the date his dismissal took effect. The law given the new dispensation is that whether termination or dismissal is wrong or not, all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. SeeUdegbunam v. FCDA(supra),Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, Adebayo Boye v. FBN Mortgages Limited unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7th April 2016 and Mr Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12 July 2016.

 

53. From all that has been said so far, in terms of relief (i), since the claimant’s employment was not statutory, his dismissal certainly was not in consonance with Exhibit F. This, however, does not make the dismissal null and void. What it means is that the dismissal is wrongful. The fact that Exhibit F was not followed cannot make the dismissal null and void. I already held that the proper thing the defendant should have done was terminate the claimant’s employment. Relief (i) accordingly succeeds only in terms of the dismissal being wrongful for not adhering to the terms of Exhibit F. I so hold.

 

54. As for relief (ii), by Imonikhe v. Unity Bank Plc (supra), the claimant cannot complain of not being given fair hearing, his employment not being statutory. The query issued to him and his answer to the query sufficiently means that he was accorded fair hearing in terms of Imonikhe v. Unity Bank Plc. However, the defendant failed to comply with the provisions of Exhibit F in not setting up the disciplinary panel as enjoined under Exhibit F. This means that relief (ii) succeeds only in terms of the second leg i.e. failure to comply with laid down procedures for termination of the claimant’s appointment. I so hold. In this sense, relief (ii) approximates to relief (i).

 

55. Relief (iii) seeks an order setting aside the dismissal. This can only be in the sense of substitution of the dismissal with termination given the findings and holdings as to reliefs (i) and (ii). In substitution of dismissal with termination, the claimant’s termination took effect from 19th January 2010. The question of an order for the payment of “salaries, allowances, bonuses and entitlements of the claimant from 19th January, 2010 up to the date of judgment” as per relief (v) does not arise. Relief (v) accordingly fails and so is dismissed. I so hold. However, because the claimant’s employment is now deemed terminated, the claimant is entitled to one month’s payment in lieu of notice. The defendant conceded to this.

 

56. In paragraph 17 of the statement of claim, the claimant put his basic monthly salary at N400,530.37. But in paragraph 23 of CW1’s written statement on oath, the claimant put his annual gross salary at N6,470,278.85. This sum if divided by 12 months gives us approximately N539,189.90. This sum is not supported by the pleadings. Meanwhile, in paragraph 25(A)(i) of CW1’s written statement on oath, the claimant put his basic salary at N2,077,038.45 from 19th January 2010 till date. This sum if divided by 12 months gives us approximately N173,086.54. Under cross-examination, the claimant as CW1 testified that his annual gross salary at time of his dismissal was N6,470,278.85. He, however, went on to testify that “Exhibit T12 was the cost review of our salary with our union”, and that“the total amount in Exhibit T12 is N4,806,364.44 as annual gross salary”. If N4,806,364.44 is divided by 12 months, what we have is N400,530.37. This is the sum the claimant indicated in his pleadings as his “basic monthly salary”. Exhibit T12 dated 22nd June 2009 is a letter from the defendant to the claimant. It is titled, “Review of Salary and Allowances”. It indicates the breakdown of the claimant’s annual salary in terms of basic salary; rent, transport, utility, electricity, tea and lunch subsidies; children education grant; Christmas shopping basket; and telephone allowance; all totaling N4,806,364.44.

 

57. Paragraph 13.2.4 of Exhibit F provides that:

The Company is required to give one month’s notice to a confirmed staff of its intention to terminate his services or to pay the staff member salary in lieu of such notice, while unconfirmed staff will be given a week’s notice or one week’s salary in lieu of notice.

By Exhibit E, the claimant was a confirmed staff with effect from 6th December 1994. This means that the claimant is entitled to one month’s salary in lieu of notice. In paragraph 6.12 of the defendant’s final written address, the defendant talked of one month basic salary. However, paragraph 13.2.4 of Exhibit F did not delimit the nature of salary it talks of, whether basic or gross. In interpreting contracts of employment, ambiguity must be resolved in favor of that which gives the employee an advantage. See James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016. I take it, therefore, that what paragraph 13.2.4 of Exhibit F contemplates is gross salary. Exhibit T12 puts the gross annual salary of the claimant at N4,806,364.44, which if divided by 12 months gives us N400,530.37. This is the sum the claimant is accordingly entitled to as one month’s salary in lieu of notice. I so hold.

 

58. Relief (iv) prays for “a declaration that upon the determination of contract of appointment hitherto existing between the claimant and the defendant and/or its privies, the claimant is entitled to payment of end of service benefits, gratuity and issuance of certificate of service”. There are three components to this relief: payment of end of service benefits; payment of gratuity; and issuance of certificate of service. There is no pleading in respect of the claim for issuance of certificate of service. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed; andthe duty of a plaintiff is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. The argument of counsel in paragraph 4.16 of the claimant’s final written address that the claimant has established his entitlement to issuance of certificate of service is one made without pleadings or proof. That claim cannot accordingly succeed. The claim for issuance of certificate of service accordingly fails. I so hold.

 

59. The other claims as per relief (iv) are the claims for end of service benefits and gratuity. In paragraph 24 of his written statement on oath, the claimant indicated that based on the terms of his employment, he is entitled to early retirement and so his benefits are:

(i) Ex-gratia = One month gross salary for every completed year of service.

(ii) Gratuity = One month gross salary for every completed year of service.

(iii) 3 months gross salary x number of years prior to normal retirement.

And in paragraph 25(B) of same written statement on oath, the claimant qualified his claims thus:

(i) Ex-gratia = N539,189.90 x 20 = N10,783,798.00

(ii) Gratuity = N539,189.90 till date of judgment (number of years served)

(iii) 3 months gross salary = N539,189.90 x 3 = N1,617,569.70 till date of judgment (number of years prior to normal 35 years i.e. 35 years minus years served).

 

60. The defendant’s reaction is that the claim for gratuity and benefits does not arise because contributory pension scheme had overtaken the issue of gratuity since the claimant testified under oath that his Pension Fund Administrator chosen by him is Stanbic IBTC PFA. The defendant submitted no authority for its proposition that gratuity does not arise because of contributory pension scheme. The defendant also argued that the claim for end of service benefits would not arise as the quantum does not cover such.

 

61. Paragraphs 13.2.37 to 13.2.43 of Exhibit F make provisions as to early retirement of a staff but it does not state the formula for determining the entitlements arising therefrom and the quantum of the entitlements. The claimant in further proof of his claim here referred to Exhibits G, R, T1 to T12, W1A, W2A, W2B, W3A and W3B, X, Y, Z, and AA1 to AA12. I looked through these exhibits and did not find much help from them:

Exhibit R dated 27th February 2002 is a letter wherein the defendant rejected the claimant’s application to be released from service under the Voluntary Severance Scheme (VSS).

Exhibit X dated 1st April 2009 is a letter from the defendant awarding the claimant N128,212.25 being one month basic salary as productivity bonus for year 2008.

Exhibit Y dated 6th March 2006 is a letter from the defendant conveying approval of 5% increase on salary, and rent and transport allowances, as Cost of Living Allowance (COLA) with effect from 1st January 2006.

Exhibit Z dated 21st January 2003 is a letter from the defendant conveying approval of 15% increase on basic salary, rent and transport allowances with effect from 1st January 2003.

Exhibits T1 to T12, variously dated, are letters conveying revision of salary and allowances.

Exhibit W3A dated 1st February 2007 is a letter allocating a car to the claimant; and Exhibit W3B is the defendant’s vehicle allocation policy.

Exhibits W1A and W2A deal with car ownership scheme.

Exhibits AA1 to AA12 are copies of pay-slips.

Exhibits G and W2B are not even in the case file.

 

62. As it is, the claimant has not been proved by disclosing to the Court the provisions that entitle him to the claim for gratuity and end of service benefits and how he came by the quantum of the sums he claims. In our adversarial  justice system, the basic rule is that courts are adjudicators, not investigators. See Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 202 at 323 and 324 and Ademola Bolarinde v. APM Terminals Apapa Limited unreported Suit No. NICN/LA/268/2012, the judgment of which was delivered on 25th February 2016. In Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, the Court held it to be fatal to a claimant’s case where the claimant does not in his statement on oath refer the Court to the exact provisions that grant him the entitlement he claims. In the words of the Court:

I must emphasise here that throughout their written address, the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlements they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy; and cases can be lost just on that score.

 

63. The claimant used N539,189.90 (a figure I earlier held is not supported by the pleadings) as one month gross salary in calculating his heads of claim in paragraph 24 of his written statement on oath i.e. ex-gratia,gratuity and 3 months gross salary. The claimant did not refer the Court to the provision that entitles him to ex-gratia and 3 months gross salary. So, these claims remain unfounded. I so hold. A circular No. 2/2006 of the defendant also marked as Exhibit F, the first page of which is barely readable, deals with some key policy issues of the defendant. At pages 3 and 4, it deals with terminal benefits i.e. gratuity and early retirement. Under gratuity, it provides for qualifying age, the minimum for gratuity of which is 5 years; and computation, the formula of which is “(a) 3 week’s gross pay x noys for staff of 5-9yrs in service” and “(b) 1 month’s gross pay x noys for staff of 10yrs & above in service”. Under early retirement, qualifying age; approval of application; and computation are provided for. For computation, it simply states: “The continuation and implementation of the existing computation with the exception of Gratuity, a change has been effected as stated above”.

 

64. The claimant was employed by the defendant vide a letter of 3rd June 1994 and the appointment was terminated on 19th January 2010. This means that the claimant worked for the defendant for approximately 15 years 6 months. I indicated earlier that the proven gross monthly salary of the claimant supported by the pleadings is N400,530.37. Going by the formula “1 month’s gross pay x noys for staff of 10yrs & above in service”, noys being number of years os service, N400,530.37 when multiplied by 15 and half years will give us approximately N6,208,220.74. This is the sum the claimant is entitled to as gratuity. I so hold. Reliefs (iv) and (vi) accordingly succeed only in terms of the claim for gratuity. I so find and hold.

 

65. Relief (vii) has already been dismissed given hat the claimant abandoned it.

 

66. Relief (viii) is for cost of the action. Although cost follows the event in litigation, it is at the discretion of the Court. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC).

 

67. On the whole, the claimant’s case succeeds in part, and only in terms of the following declarations and orders:

(1)    It is hereby declared that the defendant’s letter of 19th January 2010 dismissing the claimant is wrongful having regard to the terms of the claimant’s appointment with the defendant and the provisions of the Human Resource Policies and Procedures Manual governing the conditions of service of the defendant’s staff.

(2)    It is declared that the purported dismissal is wrongful for non-compliance with the laid down procedures for termination of appointment of confirmed staff of the defendant.

(3)    The dismissal of the claimant is converted to termination and it takes effect from 19th January 2010.

(4)    It is declared that the claimant is entitled to only one month’s salary in lieu of notice and gratuity.

(5)    Accordingly, the defendant shall within 30 days of this judgment pay to the claimant N400,530.37 being one month’s salary in lieu of notice; and N6,208,220.74 being gratuity.

 

68. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD