IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 25TH JULY, 2022 SUIT NO: NICN/LKJ/19/2019
BETWEEN
MISS ESTHER OZAVISA DAVID………….CLAIMANT
AND
1. GEORGE CALIL LIMITED ……………DEFENDNTS
2. ANIS CHAWKI EL KADY
REPRESENTATION
S.A. Abbas Esq. with him is O.C. Fasanyin Esq and V.F. Arolokaiye Esq for Claimant.
M.Y Abdullahi Esq. with N.A. Abubakar Esq for the Defendants
JUDGMENT
1. It is Claimant’s case vide her statement of facts that she was in the employment of the 1st defendant vide a letter dated 20th day of December, 2017 and her employment was subsequently confirmed vide letter dated 17th day of April, 2018. The schedule of her duty is cleaning the residential apartment of one Mr Sukhdev Dhillion an expatriate in the 1st defendant Company. However on the 17th day of December 2017 she was alleged to have committed the theft of the sum of $1,000 which was allegedly kept in the room of the expatriate which led to the invitation of Claimant and one Ismaila Abdullateef which allegations they both vehemently denied. The defendants without causing them to appear before any panel of inquiry and without any iota of indictment, no iota of evidence against Claimant, they were both handed over to the Police at the ‘B’ Division, Police Station, Lokoja wherein Claimant was detained for 5 days before she was granted administrative bail. However, the defendants served her with a letter of summary dismissal dated 2nd day of January, 2019. In view of the said letter Claimant caused her lawyer to write the defendants and which letter was equally responded to by the defendants through their lawyer. Claimant has not been linked to the theft of the sum of $1,000 and no subsequent legal action has been taken against Claimant since then. The said dismissal has caused stigma to the person of Claimant and she has not been able to find any other job since the said dismissal on the ground of misconduct. The defendants have failed to comply with the demands of her lawyer in the letter written. Hence this action.
2. It is against this backdrop that Claimant took out a General Form of Complaint on the 22nd day of May, 2019 wherein claimant claims as follows;
1. A DECLARATION that the termination of the employment/appointment/services of the claimant vides a letter titled “Summary Dismissal-Gross Misconduct” dated 2/1/2019 by the defendants from the 1st Defendant Company is unlawful, wrongful, and complete violation of the terms and conditions of the employment dully agreed to by the Claimant and the Defendants.
2. A DECLARATION that the unjustified detention of the Claimant from the 17th day of December, 2018 to 21st day of December, 2018 (five (5) clear days) at B’ Division police station, Lokoja Kogi State on purported allegation of theft of the sum of $1,000 equivalent to N360,000.00 (Three Hudred and Sixty Thousand Naira) only on account of the defendants, is a clear violation of the fundamental rights of the claimant.
3. AN ORDER of this Court directing the defendants forthwith to apologize in two (2) National dailies for the wrongful accusation and unlawful detention of the Claimant.
4. AN ORDER of this Court awarding the sum of N10,000,000.00 (Ten Million) naira only as general damages for the wrongful; accusation devoid of any proof, unlawful detention for (5) five days from 17th day of December, 2018 to 21st day of December, 2018, and character assassination of the claimant.
5. AN ORDER directing the defendants to pay to the Claimant all her salaries, entitlements and benefits from January, 2019 when her employment was wrongly terminated and leave allowance of 15% of her annual salary up till when this action will be finally determined.
6. Cost of filing this suit and prosecution of this suit totaling N550,000.00 [Five Hundred and Fifty Thousand Naira] only.
WHEREOF, the claimant claims against the defendants, the sum of N10,000,000.00 (Ten million naira) only as general damages for the unlawful detention for five (5) clear days on an unsubstantiated allegation of theft of the sum of N360,000.00, all her salaries, entitlements and allowances for the wrongful dismissal/ termination of claimant’s employment and leave, allowance of 15% of the annual salary and the sum of N550,000.00 (Five Hundred and Fifty Thousand Naira) only being the cost of filing this suit.
3. The defendants in response on the 20th day of August, 2019 filed their joint statement of defence along with other accompanying processes though belated but same was regularized. It is the case of the defendants that Claimant was employed by the 1st defendant as a steward and her appointment was subsequently confirmed. However, in the course of the employment, theft of the sum of $1,000 in the apartment which Claimant cleans which led to the accusation of Claimant and one Ismaila Abdullahi the Estate Manager which allegation was brought to the notice of Claimant. The defendants constituted a three man panel which tried Claimant and the co-accused employee and prepared its report which report was submitted to the Management and the Management after the consideration of the report and the unsatisfactory behavior of Claimant, dismissed Claimant from employment. They averred also that it is not a requirement in the terms of employment that Claimant must be tried by a Court of law before she can be summarily dismissed by the defendants. The Police was equally notified of the theft committed but the defendants have no knowledge of Claimant’s detention as that is within the powers of the Police to do and the defendants did nothing more than reporting the alleged theft to the Police. The terms of the contract permits the defendants to dismiss Claimant summarily for theft or gross misconduct without notice.
4. Parties in this case on the 24th day of February, 2022, parties in this case consented to adopt the Argument on Record Procedure contained in Order 38 Rule 33 of the National Industrial Court (Civil Procedure) Rules, 2017 to argue this case on record and dispensing with the need for oral evidence. As it is customary to do in line with the procedure adopted by parties, this Court ordered parties to file their final written addresses. Claimant in this case filed his final written address on the 1st day of April, 2022 and same was adopted vide letter filed on the 4th day of April, 2022 wherein learned counsel on behalf Claimant formulated the following issues for determination;
1. Whether the termination of the Claimant’s employment was not unlawful having regards to the facts and circumstances of this case vis-à-vis the terms and condition of her employment
2. If issue one is resolved in favour of the Claimant, whether the Claimant is not entitled to all the reliefs being sought.
5. Learned counsel argued issues one and two together. It is learned counsel’s submission that he who has a right to hire has a right to fire in accordance with the terms and conditions of employment. He relied on the case of Organ & Ors v. Nigeria Liquefied Natural Gas Ltd & Anor [2013]LPELR-20942(SC)34-35, Paras E-A. He submitted that the onus is on the claimant to prove certain conditions. He relied on the case of Oloruntobi Oju & Ors v. Abdul- Raheem & Ors [2009]LPELR-2596(SC)45-46, Paras E-B. He submitted that the Claimant vide paragraphs of the statement on oath has been able to lead evidence that she was an employee of the defendant vide the letters of employment and confirmation and which contain the terms and condition of service. He submitted that from the letter of employment there are two instances under which the employment of the Claimant can be lawfully terminated. He submitted that from the contents of the letter of summary dismissal it is clear that the reason for the dismissal is the theft of $1,000. He submitted that going by the written statement on oath of DW Abdullahi Yunusa, the only reason why Claimant and alleged co-accused were alleged by the defendants is that as part of their lawful duty, they have legitimate access to the said apartment. He submitted that motive for termination of an employment is irrelevant so long as the motive is not stated on the letter of termination. However, where the reason for termination is stated, the employer must of necessity prove that reason to the satisfaction of the Court. He relied on the case of John Holt v. Nzeribe [2018]LPELR-44943(CA)19-27, Paras E-C.
6. Learned Counsel submitted further that the defendants even though they alleged that Claimant appeared before a three man panel of inquiry which made a report to the Management and relied on the report failed to produce the report. He urged the Court to either hold that there was no three man panel so constituted by the defendant and no report of any preliminary inquiry issued or that the content and production of the three man panel of inquiry report will be unfavourable to them and as such urge the Court to invoke Section 167(d) of the Evidence Act. He submitted further that assuming there was even a report, the defendants cannot use same as the basis for the termination of Claimant’s employment. He submitted that the reason for Claimant’s dismissal being allegation of theft a criminal offence, the allegation must first and foremost be proved before a Court of competent jurisdiction. He relied on the case of Osagie v. New Nigeria Bank Plc [2004]LPELR-5894(CA)17-29, Paras F-B. He submitted that till date no report of the outcome of the investigation of the Police has been tendered in this case and no charge has been pressed against Claimant.
7. It is equally learned counsel’s submission that the defendants cannot rely on the payment of Claimant’s December salary as the basis of termination of Claimant’s employment as Claimant is entitled to be paid for the month of December as she worked for the said month. He submitted further that assuming but without conceding that the defendants even terminated the employment of Claimant in line with the first leg of termination clause contained in the employment letter, the defendant ought to have paid the Claimant January salary in lieu of notice. He urged the Court to hold that the termination of employment of the Claimant without proof of the allegation of theft before a Court of competent jurisdiction was unlawful and a breach of her fundamental right which entitles her to the grant of all the reliefs sought. He relied on the case of Obanye v. Union Bank [2018]LPELR-44702(SC)22-24, Paras F-D. He urged the Court to grant all the reliefs sought.
8. Learned Counsel on behalf the defendants filed his final written address on the 22nd day of April, 2022 and same was adopted vide letter filed on the same date. Counsel in the address formulated the following issues for determination to wit;
1. Whether the termination of the Claimant’s employment was not in line with the terms and conditions of her employment.
2. Whether from the evidence before this Honourable Court, the Claimants has made out a case to warrant the reliefs sought in their claim.
9. On issue one, learned counsel submitted that he who has right to hire has a right to fire whether for good or bad reason for terminating is irrelevant as the important consideration is whether or not the employer terminated the employment in line with the terms and conditions of employment. He cited in support the following cases; Olarewaju v. Afribank Nig Plc [2001]133 NWLR (Pt 731)691; Dudusola v. Nigeria Gas Co Ltd [2013]10 NWLR (Pt 1363)123 and; Garuba v. Kawara Inv. Co. Ltd [2005]5NWLR (Pt 917)160. He submitted further that the 1st defendant being a limited liability company as such does not have any obligation to retain an unwanted employee. He relied on the case of Shuaibu & Ors v. NBC Plc (Coca-Cola) [2020]LPELR-512110(CA)52-56, Paras B-D. He submitted hat Claimant’s employment was terminated based on the allegation of missing sum of $1,000. He submitted that the employment contract clearly regulates the relationship between Claimant and the defendants and the manner under which the contract can be lawfully determined. He submitted that the terms of the contract did not envisage a trial of any kind before the 1st defendant can exercise its right of termination which terms claimant voluntarily agreed to. He urged the Court to hold that the termination having been done in consonance with the terms of the contract is valid in the eyes of the law. He relied on the case of Isheno v. Julius Berger (Nig) Ltd [2008]LPELR-1544(SC).
10. Learned counsel submitted also from the paragraphs of the statement on oath of DW it is obvious that the defendants carried out proper investigation and gave claimant fair hearing before terminating Claimant’s employment even though the defendants are not obliged to tell Claimant the allegations against her based on the relationship between parties. He relied on the case of Olarewaju v. Afribank, supra. He explained what will amount to gross misconduct and relied on the following cases; Ridge v. Baldwin [1963]2 All ER 66@71 and Olaniyan v. University of Lagos [1985]2 NWLR (Pt 9)599. He submitted that the defendants in this case had put claimant on notice on acts of misconduct that would necessitate her summary dismissal. He relied on the case of Igbinoba v. Delta Steel Co. Ltd [1994]LPELR-22949(CA)18-19, Paras F-E; Borishade v. National Bank of Nigeria, Ltd [2005]LPELR-11968(CA)18, Paras A-E. He submitted that there is no provision in the contract between parties that provides that Claimant must be found guilty before she is dismissed and parties are bound by the terms of the contract and the Court cannot go outside the terms of the contract. He relied on the following cases; Union Bank of Nigeria v. Ozigi [1994]LPELR-3389 (SC); Oforishe v. Nigerian Gas Co. Ltd [2017]LPELR-42766(SC). He submitted that Claimant is not entitled to salary in lieu of notice as she was dismissed on ground of gross misconduct. He relied on the case of Ekunola v. CBN & Anor [2013]LPELR-20391(SC) and FBN v. Akanji [2017]LPELR-43555(CA)
11. On issue two, learned counsel submitted that Claimant in a declaratory relief is supposed to rely on the strength of his own case. He relied on the following cases; Nduul v. Wayo & Ors [2018]LPELR-451151(SC)53-54, Paras C-B; Ibrahim v. Suleiman [2020]LPELR-52747(CA)10-11, Paras E-A. He submitted that Claimant failed to provide satisfactory evidence that she was wrongly dismissed and he urged the Court to so hold. He submitted that Claimant in her evidence has not given sufficient evidence to show that she was not given fair hearing. He relied on the case of Ilodibe v. Skye Bank [2017]LPELR-45364(CA)16-17, Paras C-C.
12. Learned Counsel also submitted that Claimant’s relief 2 on unlawful detention must fail for failure to join the Nigerian Police. He submitted that the defendants merely complained to the Police and it is not the duty of defendants but that of the Police to decide whether or not to release Claimant. He relied on the case of Kofi Gbajor v. James Ogunbureji [1961]All NLR853@856. He submitted that Claimant has failed to show this Court that she was detained on the instructions of the defendants. He relied on the case of Amadasun v. IGP & Ors [2017]LPELR-50089(CA)9-12, Paras A-D. He submitted that the Claimant having confirmed in her evidence that he schedule of duty is the cleaning of the premises where the money was kept shows that Claimant has been linked to the alleged theft contrary to her assertion. He submitted that a party who has the onus of proof must prove his by convincing evidence. He relied on the case of Odiete v. Okorie [1973]1NWLR 175. He submitted that the onus placed on the claimant to prove her wrongful termination of employment has not been successfully discharged. He relied on the case of Obora v. RSH & P.D.A [1997]9NWLR (Pt 868)425. He urged the Court to dismiss the suit and award substantial cost.
13. On the 27th day of April, 2022, learned Counsel on behalf of the Claimant filed his Reply on points of law to the final written address of the defendants but failed to adopt same by a simple letter as ordered by the Court and like he did with the final written address. This Court by the power granted under Order 45 Rule 7 of the National Industrial Court (Civil Procedure) Rules, 2017 deems same as adopted. In his submissions, learned counsel submitted that the case of Olarewaju v. Afribank, supra relied upon by learned counsel on behalf of the defendants is distinguishable from the case at hand and cases are decide based on their peculiar facts and circumstances. He submitted that what will guide the Court in this case is the letter of dismissal herein which is worded differently from the one in Olanrewaju’s case. He submitted that the defendants in this case has alegal burden to prove beyond reasonable doubt the allegation against Claimant. He relied on the cases of John Holt v. Nzeribe [2015]LPELER-44943(CA)19-27, Paras E-C. He submitted also that in Olarewaju’s case unlike this case the Report of the Senior Staff Disciplinary Committee that indicted Claimant was tendered. He urged the Court to hold that the circumstances in the case of Olarewaju is at par with this case and urged the Court to hold that the position of the law is as held in Garba v. University of Maiduguri.
14. After a painstaking perusal of the originating processes in this suit, the joint statement of defence of the defendants, the documents relied on and the address of parties and the Reply on points of law, I am of the view that the two issues that arise for the determination of this case to wit;
1. Whether the dismissal of Claimant from employment is wrongful.
2. Whether Claimant is entitled to the reliefs sought in this case
15. On the preliminary, learned Counsel on behalf of the defendants M.Y. Abdullahi Esq on the 20th day of August, 2019 filed a memorandum of conditional appearance which though filed belatedly was regularized. It is well settled in law that when a defendant enters a conditional appearance by filing a memorandum of conditional appearance, he intends to object to the jurisdiction of the Court. Seethe following cases; C.G.G. (Nig.) Ltd v. Eronini [2019]14 NWLR (Pt 1692)219@232, Paras C-D; Enterprise Bank Ltd v. Aroso [2014]3NWLR (Pt 1394)256@295, Paras F-H; C.G.G. (Nig.) Ltd v. Aminu [2013]7NWLR (Pt 1459)577@592, Para E, 593, Paras F-G and; Adams v. Umar [2009]5NWLR (Pt 1133)41@113, Para G. It is worthy of note that defendants in their statement of defence stated in the preliminary part thus; “TAKE NOTICE that Defendants herein shall before or at trial or as may be directed by the Court, raise or challenge the competence of the entire suit for non-compliance with the condition precedent for commencing an action and or objection challenging the jurisdiction of the Court to entertain the suit.” The above shows that the defendants intend to raise an objection to the competence of this suit on the ground of an alleged non-compliance with condition precedent for commencing an action. However, at no time through-out this matter even at the address stage did the defendants raise any such objection or even address the Court as to the condition precedent that was not complied with by claimant in the institution of this action to deny the Court of the jurisdiction to entertain this matter. In the apex Court’s decision in the case of U.B.N. Plc v. Awmar Properties Ltd. [2018] 10 NWLR (Pt.1626) 64@75-76, Para H, the Court considered the effect entering a conditional appearance but without an objection to the jurisdiction of the Court through-out trial and held per Rhodes-Vivour, J.S.C., (Rtd) thus; “…The above shows that the entry of conditional appearance was moonshine. The defendant entered conditional appearance. This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case. After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court's jurisdiction. Proceedings proceeded. The appearance of the defendant to the proceedings in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.”[Emphasis mine]. See also the following cases; Akhigbe v. Paulosa (Nig) Ltd [2006]12 NWLR (Pt 994)373@383, Paras C-D and; Adegoke Motors Ltd. v. Adesanya &Anor. [1989]3 NWLR (Pt.109) 250. From the above judicial authorities, it is clear that where a defendant enters conditional appearance but fails to object to the jurisdiction of the Court as expected by the mode of appearance, the appearance is deemed unconditional. It is in line with the above case law authorities, that I find that the appearance of the defendants in this suit is an unconditional one. Thus, the defendants are deemed to have submitted fully to the jurisdiction of this Court. I so find and hold.
16. Let me also address some issues relating to certain authorities cited by learned counsel for the claimant in his final written address and Reply on points of law. Learned counsel in his final written address cited the case of John Holt v. Nzeribe [2018]LPELR-44943(CA)19-27, Paras E-C. In paragraph 2.04 of the reply address he cited the same case as John Holt v. Nzeribe [2015]LPELR-44943(CA)19-27, Paras E-C with a different year. It is therefore clear that one of the two citations is incorrect. The correct citation of that case is John Holt v. Nzeribe [2018]LPELR-44943(CA)19-27, Paras E-C as cited in the final written address. In the same paragraph of the reply address, learned counsel cited a case thus; GARBA V. UMIR OF MANDIGNITY”. Learned counsel failed to include the year the purported authority was reported or the particular law report that reported same. In fact, it seems learned counsel misspelt the names of parties in the purported authority. In the same vein learned counsel cited in paragraph 2.07 of the reply address cited a case GARBA vs. UNIVERSITY OF MAIDUGURI” without clear reference as to the year the said authority was reported, the law report, the volume and page. Learned counsel should know that he owes it a duty to this Court to cite authorities correctly if he wants the Court to consider same. Where the authorities are reported as in this instant, the name of the law report, the year, volume and the page must be cited by counsel. See the following cases; Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)22, Para D and; Chidoka & Anor v. First City Finance Ltd [2012] LPELR-9343(SC) 13-14, Para D. Learned counsel also owes it a duty to this Court to proof read his briefs before the Court in order to correct avoidable errors and make the work of the Court easier by not sending it on a wild-goose chase.
17. On issue one, a perusal of the Originating process evinces that this action is declaratory. The law is of common that a party who seeks a declaratory relief must rely on the strength of his own case to prove that he is entitled to the reliefs sought. Thus, a Claimant who seeks a declaratory relief needs to satisfy the Court on the balance of probabilities to be entitle him to same. As such, declaratory reliefs cannot be granted in the absence of credible defence or on admission of the defence but on satisfactory and credible evidence by the Claimant. See the following cases; Ofongo v. A.P.C. [2022]4NWLR (Pt 1821)543@573-574, Paras G-C (SC); Adamu v. Nigerian Airforce [2022] 5NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC); Adesina v. Airfrance [2022]8 NWLR (Pt 1833)523@555-556, Paras H-B (SC). However, the law does not preclude such a Claimant from relying on aspects of the defendant’s case which supports his own. See the case of Hanatu v. Amadi [2020] 9 NWLR (Pt 1728) 128, Paras A-C. It is the Claimant’s case in this case that the termination of her employment/dismissal is wrongful. It is trite that in an action for wrongful termination of employment, the onus to establish breach of terms is on the Claimant, it is obviously without any doubt that an employee who seeks to establish wrongful termination of his or her employment must place the terms bare and clear before the Court and point out which particular terms have been violated by the employer. An employee who fails to tender the terms of his or her employment to establish wrongful termination of employment would certainly be grumbling in vain. Thus, such an employee must found his or her claim on the contract of service. See the following cases; Briggs v. Harry [2016]9NWLR (Pt 1516)45@74, Paras A-F(CA); Aji v. C.B.D.A [2015]16 NWLR (Pt 1486)554@571, Paras G-H, 572, Paras D-E (SC); West African Off Shore Ltd v. Ariri [2015]18 NWLR (Pt 1490)177(CA) and; Idoniboye-Obu v. N.N.P.C. [2003]2NWLR (Pt 805)589@630, Paras A-B(SC). Claimant in this case pleaded and relied on the employment contract between her and the 1st defendant herein marked as Exhibit E which is the bedrock of the relationship she had with the defendants. A perusal of the averments of Claimant in the statement of facts will show that Claimant is not alleging a breach of a particular term of the contract of employment but that she was not given fair hearing before her dismissal from the employment of the defendants on case bothering on theft.
18. In cases of this nature where an employee complains to the Court of her dismissal on grounds of misconduct what the Court is expected to look out for first is whether the dismissal was in accordance with the terms of the employment and secondly whether the principles of audi alteram patem which imposes a duty upon the employer to act fairly has been observed. Acting fairly in this circumstance entails the employer giving the employee an opportunity to explain himself before taking any decision which would affect his proprietary right. Yusuf v. Union Bank [1996] 6 NWLR (Pt.457) 632, Wali, JSC (Rtd) stated thus; “... Before on Employer can dispense with the services of his Employee under the common law, all he needs to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the Employee is being dismissed involves accusation of crime”.[Emphasis mine]. See also the following cases; UBA Plc v. Oranuba [2013]LPELR-20692(CA)1@42, Para A University of Calabar v. Essien [1996] 10 NWLR (Pt.447)225@262; Olatunbosun v. Nigerian Institute for Social and Economic Research [1988] 3 NWLR (Pt. 80)25@52. Thus fair hearing in this instance entails an opportunity of being heard by the defendant whether by way of written representation or by physical appearance. It must be borne in mind that the requirement of fair hearing is fulfilled by mere issuance of query to an employee. See the cases of FBN v. Akanji, supra particularly at pages 36-47, Para C; P. C. Mike Eze v. Spring Bank Plc [2011]LPELR-(SC)1@ Paras D-F; Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624@ 643.
19. I do not lose sight of the submission of learned counsel on behalf of the defendants vide paragraph 3.7 of his final written address that the defendants are not obliged to even inform claimant of the allegations against her because of the relationship that exists between Claimant and defendants while relying on the decision of Katsina-Alu JSC (Rtd) in the case of Olarewaju v. Afribank, supra @ 502 that in master-servant employment an officer’s employment can be lawfully terminated without first telling him what is alleged against him and hearing his defence or explanations and as such an officer in the class of the employee can be lawfully dismissed without observing the principles of natural justice. Let me say that the current position of the law is that that while the law invests an employer with the power to summarily dismiss an employee in all cases of gross misconduct whether the employment is one with statutory flavour or one of ordinary master and servant, the employer is however enjoined to accord the affected fair hearing before doing so. Thus it does not matter the type of employment whether master-servant or statutory, fair hearing must be observed before dismissal. See the later and subsequent decision of the Supreme Court after the cited case of Olarewaju v. Afribank,supra in Ziideeh v. Rivers State Civil Service Commission [2007]LPELR-3544(SC)1@28-29, Para F where the apex Court per Ogbuagu JSC held thus; “...it is now firmly settled that in statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee is given the opportunity of fair hearing, I believe that he may not have made that contention. See the recent case of Francis Arinze v. First Bank of Nig. Ltd. (2004) 12 NWLR (Pt. 888) 663; (2004) 5 SCNJ 183; (2004) 5 S.C. (Pt. 1) 160; (2004) 5 S.C. 35.” [Emphasis mine]. See also; Mike Eze v. Spring Bank, supra; Arinze v. FBN Ltd [2004]LPELR-551(SC)1@16, Para D. Thus, the submission of learned counsel above holds no water in the face of the current modern labour principles.
20. The question that agitates the mind of the Court at this stage is if Claimant was actually denied fair hearing. It is trite that whether or not there is a denial of fair hearing in the dismissal of an employee is a question of facts that would be adjudged from the facts and circumstances of each case. See the case of NBC Plc v. Ekpo [2020]LPELR-51997(CA)1@13-18, Para B. It is clear from the facts averred by both parties in this case that Claimant was reported to the policeon the allegation of theft of $1,000 and then dismissed based on the same allegation leveled against her. The Court also identifies the fact that Claimant’s employment with the defendants by virtue of Exhibits E and E1 was one of master and servant. It is also clear from the facts and circumstances in this case that Claimant was not questioned by way of any query to which she was required to respond. However, the point of contention is whether or not Claimant appeared before a panel constituted to hear the allegations against Claimant in line with the principles of fair hearing. Claimant on her own part both in her pleadings and statement on oath maintained that she was not made to appear before any panel of inquiry, neither was any report of indictment made against her nor was there an iota of evidence against her regarding the allegation of theft. The defendants on the other hand maintained that Claimant along with her co-implicated employee were made to appear before a three man panel of inquiry immediately the allegation of the missing sum of $1,000 came up and the Panel conducted an inquiry into the allegations against Claimant and the other employee and of which a report was made to the Management. The said report was pleaded and relied on by the defendants. See paragraphs 12 and 13 of the 1st and 2nd defendants’ joint statement of defence.
21. There is no doubt that civil cases are decided on the balance of probabilities. Section 133 (1) of the Evidence Act 2011 on the burden of proof depends on the contents of pleading of each case. See the case of Ekweozor & Ors v. Reg.Trustees of the Saviours Apostolic Church of Nig [2020]LPELR-49568(SC)1@39-40, Para B where the Supreme Court per Odili JSC (Rtd) held that to discover where the onus lies the Court has to critically look at the pleadings. It is trite that while the legal burden in civil cases is always static and rests on the Claimant, the evidential burden which is the burden of proving a particular fact in the pleadings is on the party asserting the positive/affirmative. This is encapsulated in old Roman Jurisprudence latin maxim incumbit probatio qui dicit, non qui negat meaning-the burden of proving a fact rest on the party who asserts the affirmative of the issue and not on the party who denies it for a negative is usually of proof. See the following cases; Odom v. PDP & Ors [2015]LPELR-24351(SC)1@43-44, Para B; Oni v. Ojogbogbo [2015]LPELR-41741(CA)1@20-21, Para A and; Onyemeh & Anor v. Iwueze & Anor [2013]LPELR-21879(CA)1@44-45, Para F. The defendants are the one asserting that Claimant was given fair hearing and she appeared before a three man panel which wrote a report and submitted same to the Management. The onus is therefore on the defendants who asserted the positive in the case at hand. This is because the burden of introducing evidence otherwise known as evidential burden squarely rests on the party who substantially asserts the positive. Accordingly, the burden of proof of the appearance of Claimant before the Panel of Inquiry is on the defendants who are asserting that Claimant appeared before the Panel and not on the Claimant who asserts the negative. The defendants who bear the burden in this case have failed to discharge this burden. The defendants in their pleadings have pleaded and relied on a purported report of the Panel of Inquiry which was submitted to the Management which indicted Claimant in proof of its assertion that Claimant appeared before the Panel but they failed to tender the purported report pleaded or any record of the proceedings of the Panel which shows that Claimant was made to appear before the Panel in respect of the allegation of theft. In the case of Oguebie v. FBN Plc [2020] 4 NWLR (Pt 1715)531@ 550, Paras C-E, the Apex Court held amongst other things that a party who relies on a document in proof of his case has the duty to present at least secondary evidence of the document. If the defendants had produced the report of the Committee the Court would have been able to see how the Committee came to the conclusion that the said handwriting was that of the Claimant. The defendants herein are duty bound to show that they actually gave Claimant by allowing her to appear before a panel as asserted by them. There was no such evidence before this Court.
22. The testimony of DW one Abdullahi Yunusa the Administration Officer in his written statement on oath that Claimant appeared before a panel in respect of the allegation of theft and a report was prepared which indicted Claimant and which report was submitted to the Management is not helpful to the case of the defendants. In the same vein, the testimony of DW in paragraph 11 of the statement on oath that Claimant confirmed to the Panel of inquiry that she saw the envelope in which the money was kept and that it was empty is equally of no evidential value as what transpired at the proceedings as stated by the defendant is in a report submitted to the Management of the defendant. This is because it is a long standing principle that a person cannot be allowed to give oral account of the contents of a document as Section 125 of the Evidence Act excludes the contents of a document from facts that may be proved by oral evidence. See the following cases; Bala v. Gwaram & Ors [2017]LPELR-43205(CA)1@25, Para A; Gudusu v. Abubakar [2017]LPELR-43007(CA)1@15-16, Para E and; Ogu v. M.T. & M.C.S Ltd [2011] 8 NWLR (Pt.1249)345@373, Para C. The report is a written document and a witness would not be allowed to give oral account of the contents of a document. Thus, the evidence of DW is of no evidential value. More so, DW who is the Administration Officer and one of the persons who allegedly headed the Panels in his written statement on oath relied on the Panel report which was never tendered. It is a trite principle of law that documentary evidence is the hanger on which to assess oral evidence and therefore makes oral evidence more believable and credible. See the following cases; Emeka v. Innocent & Ors [2019]LPELR-48190(CA)1@26-27, Para F; Oyewusi & Ors v. Olagbami & Ors [2018]LPELR-44906(SC)1@39, Paras B-B and; First Bank v. Azifuaku [2016]LPELR-40173(CA)1@19, Paras E-E. In the same vein, the Supreme Court in the case of Ziregbe v. Eyekpimi [2020]9NWLR (Pt 1729)327@351-352, Paras F-A, that the failure of a party to produce any document that is pleaded precludes the Court from relying on it. In the absence of the Report of the purported Panel, the Court cannot find any credibility in the testimony of DW that Claimant appeared before a panel to satisfy the requirement of fair hearing. This is more so as the Court can not speculate on the contents of a documents not before it. See; Takpa v. Sheshi & Anor [2019]LPELR-48484(CA)1@27-30, Para E and; Alam Oparaji & Ors v. Nwosu Ohanu & Ors [1999] 9 NWLR (Pt 618) 290@307, Paras E-E. As a result of the above, I find that the defendants who has the onus of proof were unable to prove that Claimant was given fair hearing by giving her an opportunity to appear before a Panel.
23. As a corollary to the above, it is clear from the facts and circumstances of this case and the letter of summary dismissal Exhibit E3 that Claimant’s employment was terminated with immediate effect due to her involvement in case of theft. Since Claimant was summarily dismissed for misconduct it is only expedient that the employer must justify and prove the reason for the dismissal which is theft. It is a well settled principle of our law that an employer where he gives reason for termination of an employment he must justify the reason to the satisfaction of the Court failure of which the dismissal/termination would be declared wrongful. See the case of I.H.A.B.U.H.M.B. v. Anyip [2013]12NWLR (Pt. 1260)1@19, Paras E-F, [2011]LPELR-1517(SC)21, Para A where Chukwuma-Eneh JSC (of blessed memory) held thus; “Although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has proferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more.” In the same vein, the Court of Appeal in the case of Nwechi v. Union Bank [2018]LPELR-47074(CA)1@13-14, Paras A-A per Bolaji- Yusuf held thus; “It appears to me from the plethora of authorities on whether or not an employer is bound to give reasons for terminating the employment of an employee that the state of the law as it is today is that where an employment has no statutory flavour, an employer can terminate the employment of an employee without stating the reason(s) or for good or bad reason. Where the termination is a dismissal, the employer is bound to state the reason and not only state the reason(s) he must give the employee an adequate opportunity in writing to defend himself against the allegation warranting his dismissal and the employer must justify or prove that the reason is true otherwise the dismissal may constitute a wrongful dismissal.”[Emphasis mine] See also the following cases; Oguejiofor v. Access Bank [2020]LPELR-49583(CA) and; Shell Petroleum Co Ltd v. Chief Victor Sunday Olanrewaju [2008]18NWLR (Pt 1118)1@19-20, Paras A-B. The defendants have to prove certain things to be able to justify the reason is true. The Apex Court in the case of Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors [2019] LPELR-2596 (SC) held thus; “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the Courts satisfaction. (a) That the allegation was disclosed to the employee; (b) That he was given a fair hearing; (c) That the council believed that the appellants committed the offence after hearing witnesses.” See also the case of Bissong v. UNICAL [2016]LPELR-41246(CA)1@35-36, Para A. The defendants in the instant suit have not been able to satisfy this Court that there was fair hearing in the dismissal of Claimant as reasoned supra as they were not able to prove Claimant appeared before any Panel as asserted by them. They only stated that the Panel submitted report against the claimant which they never tendered in this Court. The failure of the defendant to justify the summary dismissal of Claimant is fatal to the case of the defendants.
24. It is worthy of note also that the law is firmly settled that allegation of crime in pleadings must be specifically pleaded and established beyond reasonable doubt. See the following cases; Taylek Drugs Co Ltd v. Onankpa [2018] LPELR-45882 (CA)1@ 35-36, Para D; Bico Nig Ltd &Anor v. Electronic Connections Ltd [2016] LPELR-41318 (CA)1@ 22-23, Para. F and; Obitunde v. Onyesom Community Bank Ltd [2014] LPELR-22693 (SC)1@ 44 Para. A. An allegation of theft is no doubt a criminal offence under the Penal Code Act which fact defendants even admitted vide paragraphs 16 and 22 of the joint statement of defence. Accordingly, the defendants must specifically plead same and prove same beyond reasonable doubt. The defendants in this case has not proven beyond reasonable doubt that Claimant committed theft of the said sum of $1,000. Thus, it is clear that the onus is on the defendant/counterclaimant to prove the allegation of fraud and stealing being an allegation of crime against the Claimant.
25. Claimant vide paragraph 17 of the statement of facts averred that she has not been linked to the allegation of theft or any other allegation, has not been found culpable of the criminal offence of theft or gross misconduct or any other criminal act warranting summary dismissal. She equally averred vide paragraph 19 that there is nowhere in the terms and conditions of the employment which was duly signed by both Claimant and the Defendants or any codified law was it stated or intended that the consequences of allegation of crime attracts summary dismissal without notice and benefits pending the determination of any purported suit in Court. The defendants in response vide paragraphs 21 and 23 of the 1st and 2nd defendants’ joint statement of defence that there is nothing in the terms of employment stating that Claimant must be found guilty of the offence before she can be summarily dismissed, once the panel finds Claimant guilty she can be summarily dismissed and that the terms of employment of employment of claimant states that any case of gross misconduct or negligence renders u to summary dismissal without notice. I am mindful of the fact that the contract of employment Exhibit E3 contains a term given the 1st defendant the power to dismiss claimant without notice. It is well settled in law that documents legally speaking speak for themselves. See the case of Olukemi v. Airtel Networks Ltd [2021] 2 NWLR (Pt 1761) 499 @546, Paras E-G; Ezeanochie v. Igwe [2020] 7 NWLR (Pt 1724) 430; Eze v. APGA [2020] 3 NWLR (Pt 1712) 413; Ibrahim v. Abdallah [2019] 17 NWLR (Pt 1701) 293 @ 310, Para F; 316-317, Paras H-A. Exhibit E specifically provides thus:
“The appointment will be terminated by either party after confirmation, by giving one month’s notice or payment of one month-salary in lieu of notice.
“Please be informed that any case of gross misconduct, negligence or dereliction of duty, theft of company property or any other criminal act renders you liable to summary dismissal without notice.”
It is thus clear from the above provision of the contract that where the employment relationship is severed by termination from either side, there shall be one month’s notice or salary in lieu of notice. However, where the relationship is severed by the employer in which case it is a summary dismissal for misconduct, negligence or dereliction of duty or theft of company’s property or any other criminal act, there shall be no notice. It is thus clear that once Claimant is summarily dismissed for theft or misconduct by the 1st defendant she will not be entitled to notice. Besides, it is a trite principle of the law that an employee who is dismissed for gross misconduct is not entitled to notice or salary in lieu of notice. See the decisions of the Supreme Court in the case of Ekunola v. CBN, supra relied on by learned counsel on behalf of defendants in his final written address; Eze v. Spring Bank [2011]LPELR-2892(SC)1@15-16, Para B and Nwobosi v. African Continental Bank Ltd[1995]LPELR-2121(SC)1@50, Para D. This is because dismissal is punitive and causes loss of benefits. Claimant in this case was dismissed on the ground of theft, in line with the terms of contract entered into with the 1st defendant and the applicable principle of law Claimant was not entitled to be given notice by the summary dismissal. Whether the employer can justify the dismissal is another ball game but once an employer dismisses an employee for misconduct, an employee is not entitled to notice or salary in lieu of notice.
26. Learned counsel on behalf of Claimant argued consistently that the defendants ought to have paid Claimant one month’s January salary in lieu of notice and that the payment of December salary to Claimant cannot ground the termination as Claimant worked for the said month of December and is entitled to be paid for such. It seems to me that learned counsel’s argument is borne out of the fact that Counsel is failing to understand and appreciate that there is a clear difference between termination of employment and summary dismissal and that both have its attendant consequences as rightly provided for in the contract document. While in termination of employment the right to terminate is mutual and most times entails a right to notice and there is equally no loss of accrued benefits, in dismissal there is no right to notice and there is equally loss of all benefits as it is a disciplinary/punitive measure. See the following cases; UBN Plc v. Soares [2012]LPELR-8018(CA)1@21-22, Para F and; 7UP Bottling Company Plc v. Augustus [2012]LPELR-20873(CA)1@26, Para B. It is clear from the letter severing the employment relationship that it is a letter of summary dismissal and not termination and it is equally clear that it is punitive, that is punishment for the alleged theft committed. There is there no doubt that the procedure for termination contained in Exhibit E the contract of employment will not apply, rather it is the provision that governs summary dismissal that will apply. It follows therefrom that the contention of learned counsel on behalf of Claimant in paragraphs 3.19 and 3.20 of the final written address that Claimant was entitled to notice or January salary in lieu of notice is thus discountenanced. Accordingly, the 1st defendant in this case can exercise its power to summarily dismiss the Claimant without notice and can act do son through any of its officers including the 2nd defendant who signed Claimant’s letter of summary dismissal Exhibit E3. However, worthy of note that the power of an employer to summarily dismiss an employee for misconduct without notice should be exercised within the confines of the applicable norms and law as stated earlier in this judgment. This is because there is nothing in the terms of contract that gives the employer the right to deny claimant her right to fair hearing when exercising its power of summary dismissal.
27. It may seem as though that the position before now that an employer does not have to charge an employee on allegation bothering on crime in a Court or wait for the outcome of the trial before exercising the power to summarily dismiss the employee is not the current state of the law. This position has changed in the light of the decision of the Supreme Court in the case of CBN v. Dinneh [2021]15NWLR (Pt. 1798)91@118, Paras B-E where the Court held that the law is sacrosanct that where an employee is alleged to have committed a crime by his employer, the former must be given adequate opportunity to explain himself before a Court vested with criminal jurisdiction before any disciplinary action is taken against him by his employer. The Court was of the opinion that the jurisdiction to determine or try allegations bothering on crime is vested in the law Courts. See also the following cases; Onwusukwu v. Civil Service Commission [2020]10 NWLR (Pt. 1731)179@200, Paras A-D; Nasarawa State University &Anor v. Nekere [2018]LPELR-44550 (CA). As such, the defendants ought to have ensured Claimant was given adequate opportunity to explain herself before a Court in respect of the allegation of theft which is a criminal offence before they dismissed Claimant. In view of all reasoned supra, I find that the dismissal of Claimant from the employment of the defendants is wrongful. Question one is thus resolved in favour of Claimant.
28. Now to issue two on whether Claimant is entitled to the reliefs sought. It is trite that Statement of Claim (herein this Court as Statement of Facts) supersedes the Writ of Summons (here in this Court as General form of Complaint). See the cases of Salisu v. Mobolaji [2016]15 NWLR (Pt 1535)242 and; Amodu v. The Commandant P.C, Maiduguri [2009]15 NWLR (Pt 1163)75@80, Paras A-B. I am aware that the claimant in the General Form of complaint which is the equivalent of a Writ of Summons sought certain reliefs but only numbered 6 of it and left the last one unnumbered. Thus it is doubtful rom the General Form of Complaint if the last unnumbered one is part of the reliefs sought. However, in the accompanying Statement of Facts which is the equivalent of a Statement of Claim, Claimant sought and serially numbered seven reliefs that is reliefs i-vii. As such, I will consider the well numbered relief as contained in the statement of facts
29. Claimant in her first relief seeks a declaration that the termination of her employment by the defendants is unlawful, wrongful and complete violation of the terms and conditions of employment. It is worthy of note that Claimant through-out this case has not proven that any condition was breached in her terms of employment. In fact, I have held supra that contrary to the submission of Claimant, summary dismissal requires no notice or salary in lieu of notice under the employment contract contained in Exhibit E. I have found that the dismissal of Claimant from the employment of the defendants is wrongful for reasons earlier given in this judgment. Accordingly relief ‘I’ succeeds to the extent that the dismissal of Claimant is wrongful.
30. Now to the second relief, Claimant seeks a declaration that her unjustified detention from 17th day of December, 2018 to 21st day of December, 2018 at the B’ Division Police Station Lokoja on purported allegation of theft on the account of the defendants is a clear violation of her fundamental rights. As stated earlier in this judgment it is clear from the facts averred by both parties in this case that Claimant was reported to the police on the allegation of theft of the sum of $1,000. However, the contention of the parties herein lies in who bears liability for the detention of Claimant. The defendants joined issues with the Claimant on her detention and they averred vide paragraphs 16 and 17 of the joint statement of defence that the detention of the Claimant in Police custody did not arise from any instruction or direction of the defendants. More, so it is the duty of the Police Force to refer the matter to Court since theft is a criminal offence and the Police was bound to act in line with their constitutional mandate to investigate the allegation. Thus they denied the knowledge of Claimant’s dentention for five days and the purported bail sum of N10,000. Learned counsel on behalf of the defendants in his final written address submitted that this relief of Claimant must fail because Claimant did not join the Police to this action. It is therefore necessary to consider if the Police would be a necessary party to this action in order for the second relief of Claimant on breach of her fundamental human rights to succeed. Although, it is not the law that the Police must always be joined in an action once the complaint of the claimant is that it was involved in his wrongful arrest and detention and/or that it was engaged by the defendant on record to carry out the wrongful arrest and detention in issue. The need to join the police in a case of wrongful arrest and detention will only arise where the evidence shows that there was reasonable cause for the defendant to report the claimant to the police. Where there was no such reasonable cause for the report and the report is found to be malicious, ill-motivated and without any reasonable cause, there is no need to join the police as the defendant who made the report/complaint can be proceeded against alone directly. This is because in the first place the report/complaint to the Police is false or unreasonable and should not have been made in the first place. See the following cases; Honourable Commissioner for Works Plateau State & Ors v. Pastor John Iyanda [2020]LPELR-50778(CA)1@18-20, Para A; Okafor v. Abumofuani [2016]12 NWLR (Pt 1525) 117@140; Okonkwo v. Ogbogu [1996] 5 NWLR (PT 449) 420, (1996) LPELR-2486 (SC)1@ 25. It is thus clear that where is no reasonable suspicion for reporting a person to the Police and a report is made, the person who made the complaint can be proceeded against. The pertinent question that agitates the mind of the Court at this stage is can it be said that there was no reasonable suspicion for reporting the Claimant to the Police? The facts and circumstances of this case bothers on the theft of the sum of $1,000 from the official residence of one Mr Sukhdev Dhillion an expatriate in the 1st defendant whose apartment Claimant cleans and which led to the suspicion of Claimant and one Mr Ismaila Abdullateef the Estate Manager in the 1st defendant and a subsequent report to the Police. In my view since there was an allegation of theft it is reasonable for any citizen to report to the Police and such a report can not be said to have been unreasonable.
31. I am of the unwavering view that since there was reasonable suspicion/ground for the report/complaint made to the Police by the defendants, the Claimant in this case in order to be able to succeed in her relief for a declaration that the detention based on the report made by the defendants was unlawful and an infringement of her fundamental right, must of necessity join the Police who is to come to Court and explain if Claimant was truly detained as alleged by her and what reasonable ground it had for the detention of Claimant. I place reliance on the Supreme Court’s decision in the case of Chief (Dr.) Oladele Fajemirokun v. Commercial Bank (Credit Lyonnas) Nigeria Ltd. & Anor. [2009] 5 NWLR (Pt 1135) 588@ 600 where Ogebe JSC (Rtd) while considering a similar issue said: “I do not agree with this submission. Since the appellant's case was that the respondents reported him to the Police, who then arrested and detained him, it was necessary for him to join the Police for them to explain the reason for the arrest to show whether there was a reasonable cause for his arrest.” [Emphasis mine]. Muktar JSC (also retired) in the same case of Chief (Dr.) Oladele Fajemirokun v. Commercial Bank (Credit Lyonnas) Nigeria Ltd. & Anor, supra equally had this to say on pages 605-606, Paras A-D; “Considering the above reproduced facts deposed by both sides to the litigation. What are the facts that have been proved in support of the application, or that have shown infringement of the applicant's right? None. I think in the first place the claim of the applicant/appellant was premised on unlawful arrest and detention by the Police not the respondents (although at the instance of the respondents). Secondly, the assertion that the applicant was alleged to have been detained for theft was not proved, as the applicant did not exhibit any document to that effect. Thirdly there was admission of the allegation indebtedness, which was the cause and root of the whole problem which triggered of the application at the Lagos High Court. It is very clear that series of cheques that bounced were issued by the appellant's company, (acts which were criminal in nature), for which the respondents were at liberty to resort to the Police for their intervention, by reporting the matter to them. As citizens of Nigeria they have the choice to exercise their legal rights of placing their grievance before the Police, being custodians of law and order, and that is where their own impute stops. Whatever action the Police take thereafter is not solely their responsibility and they are not solely liable. In this vein, the reliefs sought by the applicants against the Respondents should not be against them alone if at all they instigated the action. If at all there was 'arrest' and detention, it was not done by the Respondents, but the Police who had the authority to do so. At most the Police should have been joined. The 'arrest' "invitation", and or detention may have been caused by the steps taken by the Respondents, but as I have said earlier on, the respondents were exercising their legal rights to seek the Police intervention.”[Underline mine]. In the same vein, Muhammed JSC in the same case also said on pages 620 Para H to 621, Paras A - C thus:- “From the above, it appears to me that I prefer to go along with the two lower Courts in their decision in holding that the Police is a necessary party. They played a number of key roles which no one would explain better than themselves, for example, the arrest, detention and temporary denial of use and confiscation of the appellant's mobile telephone. The Police is a necessary party in this case. They ought to have been made Co-Defendants in the first instance or be joined as a necessary party in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the case especially those relating to the Police. See: Akanbi & Ors. V. Fabunmi & Anor. (1986) 2 SC 431. Failure to make the Police a party is fatal to the claims of the Appellant/Applicant.” [Emphasis mine] See also the case of Ezeugo v. Agim [2015]LPELR-24572(CA). Since Claimant in this case is claiming that the detention was unlawful and a clear violation of her fundamental rights, she has to join the Nigerian Police Force who carried out the act of the detention which she is challenging. Accordingly, I am thus of the view that Claimant ought to have joined the Police in this action to succeed in her claim for a declaration for the infringement of her fundamental human right by the alleged unlawful detention by the Police.
32. Besides, it is the duty of citizens of this country to report cases of commission of crime to the police for their investigation and what happens after such report is not the responsibility of the complainant as the Police has the prerogative to decide what it wants to do with the report. The citizens cannot be held culpable for doing their civic duty or what is ordinarily expected of them in the circumstance unless it is shown that it is done mala fide or that the alarm given to the Police was false. See the following cases; Ibe & Anor v. Ajise [2019]LPELR-48260(CA)1@30-32, Para A; Chief (Dr.) Oladele Fajemirokun v. Commercial Bank (Credit Lyonnas) Nigeria Ltd. & Anor, supra; Onyedima v. Nnite [1997] 3 NWLR (Pt. 493) 333@347, Paras D-E. Claimant in this case has not been able to show that the alarm given to the Police was false or that the defendants acted mala fide or without reasonable suspicion. In view of this and all reasoned supra, I find that relief ii fails.
33. Claimant in her third relief seeks an order of this Court directing the defendants forthwith to apologize in two National dailies for the wrongful accusation and unlawful detention of the Claimant. As reasoned supra, Claimant in this case has not been able to show that the alarm given to the Police was false or that the defendants acted mala fide or without reasonable suspicion. She has equally failed in her relief for unlawful detention. In view of this, I cannot find a reason to exercise my discretion in favour of the Claimant. Thus, relief iii fails.
34. Claimant in relief iv claims for the sum of N10,000,000.00 as general damages for wrongful accusation and unlawful detention. It is trite that general damages is awardable where a wrong is established. Thus, where there is no wrong or proof of wrong there can be no award of general damages or compensation. See the George Akande v. Enterprise Bank [2017]LPELR-43819 (CA)1@20, Para C. I have herein before held that the Claimant has not proven that the detention is unlawful. Since there is no established wrong, this Court cannot exercise its discretion to award general damages for unlawful detention. Accordingly, relief iv fails.
35. Now to the fifth relief, Claimant in the said relief seeks an order of this Court directing the defendants to pay her all her salaries, entitlements and benefits from 2nd January, 2019 when her employment was wrongly terminated and leave allowance of 15% of her annual salary up till the final determination of this action. It is trite that in a master- servant employment where termination is declared as wrongful as in this instant the employee cannot choose to treat his employment as still subsisting and decide to claim for salaries beyond the period of termination. This is because the fact that the termination of a servant is otherwise than in accordance with the procedure laid down in his contract of service, does not however in a case where the rights of the parties are regulated by contract normally prevent the termination from being effective to terminate the contract. The only remedy available to the employee is a claim for damages. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master's behaviour is wrong. For this wrongful act, he is only liable in damages and nothing more. See the following cases; Ekunola v. CBN, supra; Osisanya v. Afribank (Nig) Plc [2007]LPELR-2809(SC)1@19, Para F; Texaco Nigeria Plc v.Alfred G. Adegbite Kehinde [2001] 6 NWLR(Pt. 708)224 and; Olarewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691@705. Making an order for the payment of Claimant’s salaries and allowances from the date she was wrongfully dismissed till the final determination of this suit is tantamount to making an order that Claimant is still in the employment of the defendants despite the wrongful termination which this Court cannot do as it has no jurisdiction to impose a willing employee on an unwilling employer. Learned counsel on behalf of Claimant who submitted in his final written address that Claimant is entitled to the grant of the reliefs sought relied on the holding of Muhammed JSC in the case of Obanye v. Union Bank, supra and quoted same. In fact, from the said holding of the Supreme Court and quotation, Muhammed JSC emphatically held that the liability of the employer is only in damages and such other entitlement of the employee that accrued at the time of the termination. It is clear from that holding and quotation that an employee can only be compensated in damages and also entitled to any entitlements and benefit that have accrued at the time of termination. That is, any benefits or entitlements which claimant is entitled to before the said termination. Claimant in this case cannot lay claim to any entitlement that has not accrued at the time of the wrongful dismissal. Claimant’s claim for salaries and entitlements from the period of her wrongful dismissal till judgment is entered is not an entitlement that has accrued at the time of termination. In view of all stated, relief v fails.
36. Claimant in relief vi seeks for cost of litigation. In the case of Saeby v. Olaogun [1999] 10-12 SC 45@59, the Court held that a successful party is entitled to cost which he should not be denied except for good reasons. See also the cases of Cappa and Dalberto (Nig) Plc v. NDIC [2021]9 NWLR (Pt. 1780)1@ 14, Paras G-H and; First Bank v. Orosanye [2019]LPELR-47205(CA)1@22-29, Para F. In the case of Mekwunye v. Emirates Airlines[2019] LPELR-46553(SC)1@67-73, Para E, the apex Court held that costs including cost of litigation/action is at the discretion of the Court once empowered by its Rules. Claimant in this case has successfully proven that her dismissal from the employment of the defendants is wrongful. She has equally succeeded in parts of her claim. The Rules of this Court, 2017 particularly Order 55 Rules 1,2,3,4 and 5 empowers the Court to grant costs of action at its own discretion. The discretionary power of the Court is to be exercised judicially and judiciously. Considering the number of processes filed and the number of appearances had, I award the sum of N200,000 to claimant as cost of litigation. Relief 6 succeeds to the extent that Claimant is entitled to the sum of N200,000 as cost of litigation.
37. Claimant in her relief vii claims the sum of N10,000,000 as general damages for unlawful detention, all claimant’s salaries and entitlement and allowances for the wrongful dismissal/termination of claimant’s employment and leave allowance of 15% of the annual salary and the sum of N550,000 (five hundred and fifty thousand naira) only being cost of filing this suit. I must first say that Claimant lumped up several claims for damages for different actions of the defendants together in the above relief. Be that as it may, I have earlier considered the claim of Claimant to damages for unlawful detention and I have found that same would fail for lack of proof of wrong. However, claimant’s claim for her salaries, entitlements and allowances for wrongful dismissal is equally a claim for general damages. Claimant in this case has been able to prove that her dismissal from the employment of the defendants is wrongful and it is well settled that given the type of employment her remedy is in damages. The question then becomes the quantum of damages to award to her. Ordinarily at common law the quantum of damages to award for wrongful dismissal or termination in a master servant employment is how much the employee would have gotten in lieu of notice. However, in view of the powers of this Court to apply international best practice and international labour standard, salary in lieu of notice may not be adequate to compensate in some case in the light of current labour standards. Therefore there is need to depart from the unreflective application of the orthodox common law principle on award of damages for wrongful termination and dismissal. In the case of Sahara Energy Resources Ltd v. Olawumi Oyebola[2020]LPELR-51806(CA), the Appellate Court per Ogakwu, JCA had the opportunity to decide on the common law orthodoxy on the quantum of damages for termination of employment and held inter alia thus; “…In the circumstances of this matter, where the dismissal of the Respondent was predicated on allegations bordering on dishonesty and bribery, which no doubt carries a stigma, it is what will form the base in considering the measure of damages to award in tune with international best practices. In this wise, there is the progressive decision of this Court in BRITISH AIRWAYS vs MAKANJUOLA (1993) 8 NWLR (PT 311) 276 at 288 (per Ubaezonu, JCA), delivered way back in 1993, which affirmed the award of two years’ salary as damages by the trial court. In the said case, it was held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice( and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice)… Accordingly, I will be a deferential to the general damages awarded by the lower court in the exercise of its jurisdiction to apply international best practices...” [Emphasis mine] Flowing from the above, it means that if wrongful termination is as a result of failure to give required notice, the quantum of damages may be employee’s salary in lieu of notice but if the wrongful termination or dismissal as the case may be is as a result of alleged malpractice which carries with it stigma, which allegation has not been proven, the employee is entitled to substantial damages. A perusal of the letter of summary dismissal Exhibit E3 clearly shows that reason given for the summary dismissal of claimant is her involvement in theft. The defendants in this case has not succeeded in proving the allegation of theft against the Claimant. As averred by Claimant in vide paragraph 22 of her statement of facts that the said reason for her dismissal has caused stigma to her person and character this Court shares the same belief because. Following the line of the Court of Appeal above and in line with international best practices, the claimant is therefore entitled to substantial damages. In exercise of the powers granted this court under section 19 (d) of the National Industrial Court Act, 2006 to award compensatory damages in deserving cases, I award the claimant her 3 years annual salary as general damages for wrongful dismissal. By virtue of Exhibit E Claimant’s annual salary is N264,000. Accordingly, Claimant is entitled to the sum of N792,000 as general damages for wrongful dismissal. I have already considered the issue of cost in the preceding relief, therefore I will not consider it again under the head of general damages. Hence, relief vii succeeds only to the extent that Claimant is entitled to the sum of N792,000 as general damages for wrongful dismissal.
38. For the avoidance of doubt and the reasons earlier given, I declare and order as follows;
1. The summary dismissal of Claimant from the employment of the 1st defendant is wrongful.
2. Claimant’s reliefs ii, iii, iv and v fail.
3. Claimant is entitled to the sum of N200,000 as cost of litigation.
4. Claimant is entitled to the sum of N792,000 as general damages for wrongful dismissal.
5. The judgment sum is to be complied with within 14 days from the delivery of this judgment, failure of which it shall attract 10% interest.
39. Judgment is entered accordingly.
Hon. Justice Oyebiola O. Oyewumi
Presiding Judge