IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE KADUNA JUDICIAL DIVISION
HOLDEN
AT KADUNA
ON
TUESDAY 12TH DAY OF MAY 2020
BEFORE
HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/10/2018
BETWEEN:
MR.
YUSUF MUHAMMAD BABA………………CLAIMANT
AND
BANK OF INDUSTRY
LTD………………………..DEFENDANT
J U D G M E N T
The
Claimant was an employee of the Defendant until he was summarily dismissed on
22/12/2015. His case, in a nutshell, is that the procedure adopted by the
Disciplinary Committee in the investigation of the alleged offence leveled
against him was in violation of the Conditions of Service of the Defendant; and
as such, his dismissal was wrongful.
2.
Being thereby aggrieved by the Defendant’s action, the Claimant commenced the
present action; vide Complaint
and Statement of Facts filed
in this Court on 13/07/2018,
whereby he claims against the Defendant, the reliefs set out as follows:
i. An Order setting aside the letter of
dismissal dated in Lagos on and served on the Claimant in Kaduna on 22nd
December, 2015 same having being issued in clear violation of the Claimant’s
right to fair hearing as well as his conditions of service and the provisions
of the Human Resources Manual of the Defendant applicable to the said
employment.
ii. An Order reinstating Claimant to his job
with the Defendant.
iii. An Order directing Defendant to pay the Claimant
his upfront payment of N3,400,000.00 being his allowances and other
prerequisite of office for 2016 as well as his monthly salaries from January
2016 till date.
iv. N10,000,00.00 damages for using men of DSS
to arrest, detain and coerce the Claimant.
v. Cost of this action.
3.
The Defendant’s defence to the action is encapsulated in the Amended Statement of Defence
filed on 02/07/2019. The
Defendant contended, in summary, that it complied with all the applicable laws
and regulations with respect to the termination of the Claimant’s appointment.
The Defendant further contended that the Claimant is not entitled to any of his
claims.
The
Claimant filed his Reply to the
Statement of Defence on 11/03/2019.
4.
At the plenary trial, the Claimant testified in person. He adopted his Statements on Oath as his
evidence-in-chief and tendered in evidence a total of fourteen (14) sets of
documents as exhibits. He was thereafter cross-examined by the Defendant’s
learned counsel.
The
Defendant, called two witnesses namely, Michael
Adewunmi (Senior Manager) and Thomas
Akporowhe (Head, Information Technology Group). They both adopted their
written Statements on Oath as their evidence-in-chief. No document was tendered
in evidence by the Defendant. They were also both cross-examined by learned
counsel for the Claimant.
5.
At the conclusion of plenary trial, parties filed and exchanged their written final
addresses as prescribed by the provisions of Order 45 of the Rules
of this Court.
In
his final address filed on 23/10/2019
but adopted on 04/02/2020, the
Defendant’s learned counsel, Oladipo Tolani Esq., formulated a
sole issue as having arisen for determination in this suit, that is:
“Whether, the Claimant
from the totality of his pleadings and evidence led has proved his case on the
balance of probability to entitle him to judgement in this suit.”
In
the Claimant’s final address filed on 13/11/2019,
his learned counsel, Emma Okunola Esq., framed two issues
as having arisen for determination in this suit namely:
1. Whether the enlistment and use of men of
DSS in the investigation of this case and their making the Claimant to write
statement in their office and the subsequent use of that statement by the
Disciplinary Committee of the Defendant in their decision to dismiss the
Claimant was proper in the circumstances of this case;
2. Whether from the totality of the pleadings
and the evidence presented, Claimant has shown his entitlement to the reliefs
he seeks in this action.
The
Defendant’s Reply on Points of Law
to the Claimant’s written address was filed on 09/12/2019.
6.
On the basis of the Claimant’s claim and the relevant evidence adduced at the trial,
my view is that the focal issues that call for resolution in this suit, without
prejudice to the issues raised by the parties, could be succinctly formulated
as follows:
1. Whether having regards to the
conjunction of circumstances and events in this case, the Defendant could be
said to have wrongfully terminated the Claimant’s employment.
2. Whether the Claimant has proved his
case to entitle him to his claims for salaries, allowances and damages.
In
proceeding to determine these issues, I had taken due benefits of the totality
of the arguments canvassed by the respective learned counsel on either sides in
the written submissions, to which I shall endeavour to make specific reference
as I deem needful in the course of this judgment.
ISSUES ONE & TWO:
7.
I now proceed to determine the issues together.
The
case of the Claimant as told by him is that he was first employed by the
Defendant by a letter of employment dated 14/05/2014 but that by a letter dated
26/05/2014 the said employment was put on hold until 03/08/2014 when he
received another letter directing him to resume work on 01/09/2014. The
Claimant claimed that he thereafter diligently carried out all his duties
assigned to him by the Defendant and his appointment was confirmed on
07/10/2015. The letters of offer of appointment dated 14/05/2014, 26/05/2014,
13/08/2014 and the letter of confirmation of appointment dated 07/10/2015 and
the Claimant’s statement of account were tendered in evidence as Exhibits
C1, C1A, C1B, C2 and C7 respectively.
The
Claimant further testified that about 16/12/2015, the Defendant’s security
manager, one Michael Adewunmi, caused officers of the Department of State
Security Services (DSS) to arrest him on an allegation of publication of
diverse on – line news which the Defendant considered embarrassing and
scandalous. The Claimant alleged that the statement he made at the Office of
the DSS was made under threat and duress; that after he was released, he
received an e – mail on 18/12/2015 from the Defendant requesting him to appear
before its Disciplinary Committee in Lagos.
8. The Claimant testified further that he appeared before the Disciplinary Committee
on 21/12/2015 and the Chairman of the Committee informed him of the alleged
offence of spreading false information about the Defendant’s Managing Director
through e - mails; that he informed the Committee that he was not aware of the
e-mails published against the Managing Director until Mr Michael Adewunmi
informed him; that when interrogated by the members of the Disciplinary
Committee, he denied the allegation and also explained to the members of the
Committee the circumstances by which he made the confessional statement at the
DSS and that the Chairman of the Committee decided that the matter be further
investigated while he (the Claimant) was directed to return to his duty post in
Kaduna.
The Claimant also testified that a letter of dismissal
dated 22/12/2015 was subsequently served on him. He contended that his
dismissal by the Defendant was wrongful as same was in breach of the procedure
required by the Human Resources Manual; that his solicitor wrote a letter to
the Defendant to protest his dismissal and that he also wrote to the Honourable
Attorney General of the Federation (AGF) requesting his intervention in the
matter. The Claimant further testified that the AGF replied vide letters dated
13/05/2017 and 30/05/2018 and that the Defendant responded to the AGF’s letter.
These documents were tendered in evidence as Exhibits C3, C6, C4, C4A, C5 and
C5A respectively.
Under
cross-examination by the Defendant’s learned counsel, the Claimant admitted
that he made the statement that was attached to Exhibit C5A during
interrogation at the DSS.
9.
Evidence on record, as adduced by the DW1 and DW2 is that some
members of staff of the Defendant received malicious e-mails against the
Managing Director of the Defendant which may generate negative perception on the
members of staff and the public and that upon on a close review of the e-mails,
it was discovered that the said e-mails were authored and sent by the Claimant.
The
Defendants’ witnesses testified that the investigative team set up by the
Defendant proceeded to Kaduna for investigation; that when the Claimant was
confronted with the allegation, he admitted sending the e-mails and the investigating
team engaged the services of DSS and that the Claimant made a confessional
statement at the Office of the DSS. The witnesses testified that after the
report of the investigation was made to the Defendant, an e-mail was sent to
the Claimant requesting him to report at Defendant’s Headquarters in Lagos for
interrogation by the Defendant’s Central Disciplinary Committee.
10.
DW1 and DW2 testified further that during the proceedings of the Disciplinary
Committee, the Claimant admitted sending the mails; that the Disciplinary
Committee recommended the summary dismissal of the Claimant for violating the
Defendant’s Rules as stated in the Human Resources Manual and that the Chairman
of the Defendant approved the recommendation of the Disciplinary Committee.
The
Defendant maintained that it availed the Claimant ample opportunity to make his
defence before the Disciplinary Committee and that it complied with the laid
down rules as stated in the Defendant’s Human Resources Manual in dismissing
the Claimant. The Defendant through its witnesses testified that the
confessional statement made by the Claimant was voluntary and denied that the
men of the DSS were engaged to forcefully obtain his statement.
Under
cross examination by the learned Claimant’s counsel, the DW1 confirmed that the
statement attached to Exhibit C5A was made by the Claimant at the DSS’s Office.
DW2 further testified that during the investigation in Kaduna, he carried out a
demonstration to establish that the Claimant authored the e-mails.
11.
Now, before I consider the merit of the case, I need to resolve some
preliminary issues as raised by learned counsel on both sides. Even at that, I
need to point out a thing or two.
Learned counsel for the Defendant had argued,
strenuously, that documents relied upon by the Claimant in his Depositions on
Oath and tendered by the learned counsel for the Claimant, were merely dumped
on the Court without relating them to the Claimant’s case.
As
correctly submitted by the learned Defendant’s counsel, the law is trite that
documentary evidence tendered and admitted in proof of a party’s case remains
dormant, unless and until they are activated by oral evidence to allow the
Court speak to them. Where the party dumps them on the tribunal or Court,
without relating them to the averments, the umpire (the Court) will not discern
and decide what document is meant to prove which particular averment. See ACN
Vs Nyako [2015] 18
NWLR (Pt 1491) 352. In the case of Omisore Vs Aregbesola [2015]
15 NWLR (Pt 1482) 205 at 323, the Supreme Court said:
“Documentary
evidence, no matter its reliance, cannot, on its own speak for itself without
the aid of an explanation, relating its existence. The validity and reliance of
documents to facts admitted or evidence is when it is done in open Court and it
is not a matter of Counsel’s address. It is not also the duty of a Court to
speculate or work out either mathematically or scientifically, a method of
arriving at an answer on an issue which could only be elicited by credible and tested
evidence at the trial”
12. Of course, the essence of the above principle is
to shield the Court from the error of abandoning its role of impartial arbiter,
to descend into the arena of conflict, trying to make a case for a party.
But is the case, at hand, in the above category? Was
the Claimant’s case bedevilled by absence of evidence, despite, the Witness
Statements on Oath? And were the exhibits dumped on the Court, as alleged by
the Defendant?
The Claimant as CW1 gave evidence and of course, the documents
were admitted in evidence without objection. It can be seen, from the
evidence of the Claimant that he was an employee of the Defendant and that he
was dismissed after an investigation was conducted by the Disciplinary
Committee of the Defendant. All the documents that were tendered in evidence
relate to the employment of the Claimant, the disciplinary action conducted by
the Defendant and his dismissal.
Thereafter, he was extensively cross examined by the learned Defendant’s
counsel on the substance of the exhibits and evidence, only for the learned
Defendant’s counsel to wake up, at the address stage, to contend that the
documents were dumped on the Court!
I
agree with the submission of the learned counsel for the Claimant that the
documents admitted in evidence were not dumped on the Court but were properly
related to the relevant paragraphs by the Claimant in his deposition on oath.
It
is therefore, too late in the day for Defendant to turn round (at the address
stage) and try to discountenance the documents on the ground that same were
dumped on the Court. The submission of the learned Defendant’s counsel in this
regard is accordingly discountenanced.
13.
The other issue to resolve is the weight to be attached to the oral evidence
adduced by DW2. Pursuant to Order 40
Rule 2 (1) of the Rules of this Court, the Court granted the prayer of
the learned Defendant’s counsel for DW2 to demonstrate by electronic evidence
to prove that the Claimant authored and sent the malicious e-mails. The learned
counsel for the Claimant had made heavy weather in his written address on the
weight to be attached to the oral evidence of DW2 that is, the demonstration by
electronic evidence to prove this fact. My understanding of the totality of the
argument of the learned Claimant on this issue is that the electronic evidence
demonstrated by DW2 was not pleaded and therefore urged the Court to
discountenance same. It is imperative to note that the learned Claimant’s
counsel did not oppose the application for the demonstration of the electronic
evidence and the witness was also cross-examined thereafter.
14. I have carefully considered the arguments of
counsel on this issue vis-à-vis the position of the law and I agree with the
learned counsel for the Defendant that the Claimant's argument is untenable in
law. The position of the law is that it is sufficient if statements of facts
relating to the document are contained in the pleadings and not necessarily
that the document or piece of documentary or electronic evidence must be
specifically pleaded in a party's pleading. See Salami Vs Union Bank [2010]
LPELR 8975; Amaechi Vs INEC
[2008] 5 NWLR (Pt 1080) 227
15. Going by the provisions of Section 84 (2) Evidence Act
(supra), it is discernible that the Defendant in its bid to electronically
demonstrate the content of some of the attachments of Exhibits C5A laid the
necessary foundation regarding the condition of the electronic gadget or computer
that was used. As correctly submitted by the learned counsel for the Defendant,
DW2 in paragraph 9 of his
deposition on oath fulfilled the requirements of law by pleading the facts in
relation to his investigation that the Claimant authored the scandalous mails
and also laid the necessary foundation regarding the condition of the
electronic gadget or computer that was used. To the extent that those
conditions as spelt out in Section 84 (supra) were fulfilled, the demonstration
by DW2 was proper in law. The argument of the learned Claimant’s counsel in
this regard is therefore discountenanced.
16. Now, it is apt to restate at this point the
settled principle of law that, an employee in an action for wrongful termination
of appointment must:
(a) Place before the Court the terms and conditions of
the contract of employment and
(b) Prove in what manner the said terms were breached
by the employer.
It is equally
important to restate that it is not in principle for the employer who is a
Defendant to an action brought by the employee to prove the wrongful
termination of the Claimant’s appointment. See: Nigeria Gas Co Ltd Vs Dudusola [2005] 18 NWLR (Pt 957) 292; Morohunfola
Vs Kwara Tech [1990] 4 NWLR (Pt. 145) 506 SC; Adams Vs L.S.D.P.C.
[2000] 5 NWLR (Pt 656) 291 at 316; Ikuma Vs Civil Service Commission, Benue
State & Ors [2012] LPELR 8621.
17. As correctly submitted by respective
learned counsel on both sides, it is glaring that the terms and conditions of
employment between parties are governed by Exhibit C6.
The Claimant's main grouse is that the Defendant did not comply with
the condition of service as required in the Defendant’s Human Resource Manual
(Exhibit C6) before he was summarily dismissed. The Claimant emphasized that
the Defendant breached his fundamental right to fair hearing as contained in the
Defendant’s Condition of Service. By my understanding, the Claimant is by his
testimony challenging a breach of the procedure for discipline as stipulated in
Exhibit C6 and alleging that the Defendant breached the principles of fair
hearing in dismissing him from its service. Or to put it differently, the
crux of the case is, whether the Defendant breached the terms and conditions of
the Claimant’s contract in dismissing his appointment.
18. In view of the crucial relevance of Exhibit C6,
being the Condition of Service that bind the parties, I take liberty to
reproduce Section 5 (b) and (f)
which is the relevant portions of the said exhibit that relates to discipline
and the procedures.
Disciplinary
Procedures
Section 5
(b) Dismissal can result from gross negligence or misconduct of such
grave nature, that a staff member’s continued employment would be inimical to
the proper working of the Bank.
[F] Disciplinary Sanctions
Summary Dismissal
(a) An Employee of BOI may be summarily dismissed upon cause of:
(i) Proven cases of theft, fraud, defalcation
or any other act that may bring the Bank into disrepute or ridicule.
19.
Now, in a purely master and servant relationship in which the relationship is
purely contractual, as in the instant case, once there is a purported
termination or dismissal of employment, the Court will rarely make an order
that it still subsists. This is on the principle that the Court cannot force a
servant on an unwilling master. However, a termination of employment by the
employer would be wrongful if it is in breach of the terms and conditions of
the contract. See: Geidam Vs NEPA
[2001] 2 NWLR (Pt 696) 45; Texaco
Nig Plc Vs Kehinde [2002] All FWLR (Pt 94) 143 at 164; Obanye Vs U.B.N
[2018] LPELR 44702
It is settled law that before an employer can dispense
with the service 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 dismissal even where the allegation for which the employee is being
dismissed involves accusation of crime. See: Ransome-Kuti Vs A-G Federation
[1985] 2 NWLR (Pt 6) 211; Yusuf Vs UBN [1996] LPELR 3537
20. DW1 in Paragraphs
9, 10, 11, 12, 13, 14, 16, 21, 24, 25, 29 and 30 of the Witness Statement on
Oath testified that through the initial investigation conducted by DW2,
it was discovered that the Claimant authored and sent the malicious e-mails;
that this was confirmed by the Defendant’s investigative team and that the
Claimant was invited to appear before the Disciplinary Committee where he was
given the opportunity to defend himself against the allegation. The Defendant’s
witnesses further established through Exhibit C5A, that based on the minutes of
the Disciplinary Committee based on the Claimant’s confession and other facts,
the Committee found that he authored the malicious e-mail and therefore made
recommendation for his dismissal to the Chairman.
21. I wish to
point out that the important thing required of the Defendant, by the rules of
natural justice or fair hearing applicable to this case, is to give the
Claimant opportunity to be heard which was afforded to him; and as such one can
say that the requirements of natural justice were sufficiently complied with in
the present case. The principle of fair hearing is one of substance and not a
mere technical rule. Hence, the question is whether a party who is entitled to
fair hearing and who is desirous of being heard before his fate is decided, had
in fact been given ample and adequate opportunity of being heard as provided
under the applicable rules. See Ahmad Vs Sahab Enterprises (Nig) Ltd &
Ors [2016] LPELR 41313 and Oloruntoba
– Oju Vs AG Federation [2016] LPELR 41250.
In the instant case therefore, I am of the firm view
that the Claimant was given opportunity to be heard and the Defendant did not
breach the terms and conditions as stated in Exhibit C6. The Claimant’s
complaint of breach of the terms and conditions of service and lack of fair
hearing is baseless and lacks merits. I so hold.
In the circumstance therefore, I am of the candid
opinion that the summary dismissal issued to the Claimant was not wrongful
since the Defendant did not breach the terms and conditions laid down in
Exhibit C6 and it exercised its right to summarily dismissed him for misconduct
of such grave nature, that his continued employment would be inimical to the
proper working of the Bank and thereby bringing the master and servant
relationship to an end. In other words, the dismissal of the
Claimant vide Exhibit C6 is not wrongful. I so hold.
22. Having held that the Claimant’s dismissal was not
wrongful, I am of the view that the Claimant’s claims for
salaries and allowances cannot be granted since these reliefs are hinged on the
wrongfulness of his dismissal.
Furthermore,
the Claimant did not establish his claim for damages for using men of DSS to
arrest, detain and coerce him. Therefore, his claim for general damages fails.
I so hold.
I hereby resolve both issues against the Claimant.
23. In the final analysis, what the Court had
demonstrated, through the evidence led on record and the totality of the
circumstances of this case is that the dismissal of the Claimant from service
by the Defendant is not wrongful. The final result therefore, is that the case
of the Claimant must and hereby fails in its entirety. It is hereby accordingly
dismissed for lacking in merit.
Parties are to bear their respective costs.
SINMISOLA O. ADENIYI
(Presiding
Judge)
12/05/2020
Legal representation:
Emman
Okunola Esq.
for Claimant
Oladipo
Tolani Esq. for
Defendant