IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: TUESDAY 24^TH JUNE, 2025

SUIT NO: NICN/KD/18/2023

 

BETWEEN:

 MR NWABUEZE OKAFOR                                                                  CLAIMANT

AND

NIGERIA BREWERIES PLC                                                                 DEFENDANT

 

REPRESENTATION

S. B. Maiturare Esq for the Claimant

Onye Okoye Esq with S. T. Olubiyi Esq for the Defendant

JUDGMENT

INTRODUCTION

The Claimant commenced this suit by the Complaint filed on the 10^th of October 2023 under Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017 whereat the Claimant claims against the Defendant the following reliefs:

a.      Wrongful dismissal from the company.

b.     B. Breach of contract of employment.

c.      C. N50,000,000.00k (Fifty Million Naira) general damages.

The Claimant predicated his claims on the Statement of Fact and Witness Statement on Oath filed on the 10^th of October 2023 and Reply filed on the 19^th of March 2024. The Defendant based its defence on a Statement of Defence and Witness’ Deposition on Oath filed on the 31^st of January 2024.

At the plenary hearing held on the 22^nd of May 2024 where the Claimant called his witness. The Claimant, who testified for himself hereinafter referred to as CW1, identified his Deposition made on Oath on the 10^th of January 2024 and adopted the same as his evidence in support of his case. CW1 thereafter tendered Exhibits CW001, CW002, CW003, CW004, CW005 and CW006. Counsel for the Defendant further tendered Exhibits NB001, NB002, NB003 and NB004 through CW1 during the cross-examination.

On the 13^th of November 2024, the Defendant opened its defence, Chidi Nwankpele, hereinafter referred to as DW1, testified for the Defendant. DW1 identified his Statement on Oath filed on the 31^st of January 2024 and adopted the same as his evidence in support of the defence of the Defendant. The Defendant tendered Exhibits NB005, NB006 and NB007.

After the close of the hearing of the suit, on the 13^th of March 2025, the matter came up for the adoption of the Final Written Addresses filed by Counsel. Learned Counsel for the Defendant, Onye Okoye, Esq identified his Final Written address filed on the 3^rd of December 2024 and Reply on Point of Law filed on the 3^rd of March 2025 and adopted the same as his legal submission in the aid of the case of the Defendant and urged this Court to dismiss this suit.

Counsel for the Claimant did not appear in court for the proceedings. However, Counsel had previously filed a Final Written Address on February 27, 2025. The Court, following Order 45 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, adopted the Final Written Address filed by Counsel for the Claimant in his absence.

CASE OF THE CLAIMANT

The facts leading to this suit, as stated in the Statement of Fact, are that the Claimant was offered an appointment letter by the Defendant dated the 29^th of August 2008 as a Craft trainee with a basic salary of N322,093.00. His appointment was terminated via a letter dated the 5^th of April 2022, effective the 7^th of April 2022. The termination of his employment was wrong, malicious, and meant to intimidate him and other staff of the company against the oppressive conduct of the company. The Claimant did not receive any query, seat-up letter, or warning from the company for poor performance as required by the rules of engagement.

Further stated that the claimant did not breach any company policy or commit any offence(s) that necessitated his being sacked. That Mr Joseph Osobola, his inline manager, has threatened him and several others that he will ensure they are sacked. He is a union member, and his efforts in championing the cause of fair working conditions for contract staff in the company were the reason his employment was terminated. There is never been any external complaint against the Claimant from the company's clients. His location, Kakuri Brewery, was adjudged second best in the country in 2022. That all the people who received partially met letters in 2021 were all of Ibo extractions.

As a labeller operator, there were no customer complaints from his location on labelled bottles for the year 2021. His team leader was rewarded for a job well done for their joint performance, but the Claimant was sacked.

CASE OF THE DEFENDANT

The Defendant stated that staff evaluation is individual and each member of staff is adjudged as per his/her performance in his/her line and post of duty/assignment. The role of a team leader is assessed per his performance in team leadership and coordination, and other related factors, while a label operator is strictly adjudged based on his/her performance, as a machine operator labeller and other related factors. That the Claimant's appointment/employment with the Defendant was terminated due to his incompetence, which led to his poor performance of his duties as a label machine operator with the Defendant. The Claimant was fond of reporting to work late with various flimsy excuses and often slept on duty on the labeling machine, which could cause security safety risks for himself and others.

Further stated that the Claimant also operates his GSM phone (making calls and typing text messages, etc) while operating the Defendant's labeling machine, which is ultimately dangerous to himself and other workers. The duty of a machine label operator includes labeling of bottles, coding of products with contents, dates of production and expiration, and other information, etc. The claimant's poor performance led to some products being returned as they were not labelled and coded, leading to customer dissatisfaction and rejections. That the claimant's incompetence led to losses for the Defendant, as the returned products are usually destroyed, and fresh products are issued to the affected customers. The time and money spent on the said returned products and also the salaries paid to the Claimant who caused the problem are huge losses for the Defendant.

Every member of staff of the Defendant was issued with a work plan as it relates to his/her job and that same is graded as "Outstanding," "Exceed Expectations," "Meets Expectations," "Partially Meets Expectations and at the bottom, "Unsatisfactory". Every member of staff of the Defendant, including the Claimant, receives a yearly performance plan duly signed by the line manager and the employee. The Claimant performed woefully poor in the category of "Partially Met" in 2020 leading to his being issued several queries dated 21-02-2020, 27-11-2020 and his replies dated 28-11-2020 and 02-12-2020. The Claimant repeated the same poor performance in 2021 which led to the termination of his appointment after the evaluation in the first quarter of 2022. That the queries were either not answered or answered when the Claimant chose to in flagrant disobedience and insubordination of the chain of command.

Further stated that the Claimant is fond of claiming and boasting that, as a union leader, he can do as he pleases, and the workers' union will take up his fight if anybody challenges him. The Defendant had always encouraged its workers to join the labor union if he/she so wished and had never victimized anybody based on the same. Employees are always free to either accept the terms of their employment or reject the same and exit employment as willingly as they applied for the same. That the Claimant's poor performance spilled from 2020 into 2021 when he was evaluated with others. The evaluation of staff is not done by one person but by a group of Managers, including the Employee's Line Manager, who tables his/her performance and same appraised openly in the presence of the Production Manager, Technical Manager, capability Manager, Head Brewer, and others, including the Human Resources Manager.

Due to the Claimant's woeful performance, which landed him "Partially Met" in the 2020 rating, he needed to perform at least above "Fully Met" in 2021, otherwise his employment would be terminated in the first quarter of 2022 when the evaluation is done. It was the result of the said evaluation, which showed, clearly, the Claimant's incompetence, inability to follow rules and regulations, and other unwholesome acts, as "Partially Met" in 2021, that led to the termination of the Claimant's appointment in April 2022 after appraisal. A Machine Label Operator operates the company's machine which labels and codes the products produced and logs them in for the overall harmonization by the team leader and passed on to the Line Manager. The team leader leads a team of several machine label operators and it is possible for a team leader to excel due to the performance of other members of his/her team and also possible for one or more machine label operators to excel even when one or more of other individual machine label operators perform poorly, as in the present circumstance of the Claimant. No tribe or religion is considered differently and same is exemplified in the team leader, an Igbo man named HENRY AYANWU being the one who got an award for 2022.

ISSUES FOR DETERMINATION

Counsel for the Claimant nominated two issues for the determination of this suit to wit:

1.     Whether the dismissal/termination of the employment of the claimant was malicious and wrongfully done by the defendant?

 

2.     Whether in the light of the evidence before the Court, the Claimant is entitled to the relief sought?

Counsel for the Defendant also nominated two issues for the determination of this suit to wit:

1.     Whether the Claimant's employment was wrongfully terminated/dismissed by the Defendant

 

2.     whether, in the light of the evidence before the Court, the Claimant is entitled to the reliefs sought

Having carefully gone through pleadings of the parties viz-a-viz the legal submission of counsel on behalf of their respective parties, the issues nominated by the parties are closely the same. However, I will adopt the issues for the determination nominated by Counsel for the Defendant in determining this suit.

LEGAL SUBMISSION OF THE CLAIMANT

The Claimant submitted that the combined effect of the provisions of article 22(a) termination of employment and article 38 disciplinary procedure of the employees' handbook marked as exhibit CW003, points to the fact that the termination of the claimant's employment was malicious and not in consonance with the provisions of the terms and conditions of the claimant’s employment as the termination procedure adopted was strange and in total breach of article 38 (a) (c) (d) (I) (II). That article 22a of the employee's handbook cannot be read and interpreted in isolation as it has it’s foundation and it is a part of article 38(a), (b),( c), (d), (I) and (ii) interpreting article 22a on its own is an attempt to turn logic upside down, in the defendant's bid to subvert its own law and justify the illegal termination of the claimant’s employment, from the evidence before this court it is obvious that apart from the query, which the claimant responded to, no any other disciplinary measures were taken as required and stipulated by the employees hand book.

Submitted that the testimony of the Defendant's lone witness deposition as adumbrated in his 35 paragraphs affidavit evidence is of no moment in this case, when the Defendant's witness admitted he wasn't even in the employment of the Defendant when the cause of action arouse, to make things worse he was not even employed until the claimant employment was terminated by the Defendant and documents tendered by him exhibits NB005, NB006 and NB007 did not disclose any offence that could be termed as gross misconduct/insubordination that could have warranted the claimant's sack, all exhibits tendered were queries which is just a question and the claimant responded to each of the queries as evidenced by the exhibits before the court, afterwards the claimant did not get any further response from the defendant which presupposes that the defendant was satisfied with his response to the query hence there was no need for further correspondences or disciplinary actions as stipulated in article 38 (a)(c)(d)(i)(II) of the employee's handbook.

Submitted that all the defendant's witness disposed to is hearsay evidence which is contrary to the provisions of sections 37 and 38 of the evidence act and do not fall within the exception under section 39 of the evidence act 2011 cap E.14, the Court was urged to discountenance the whole of the testimony and documents tendered i.e. exhibits NB005 NB006 and NB007 by the defendants witness as same is hearsay and lack any probative value as it does proof the alleged offence that is said to warrant the sack. Refers to NYESON V PETERSIDE (2016) 7 NWLR (PT1412) PAGE 452

Further submitted that it is against the rules of natural justice for the Claimant not to be heard as alluded to by the defendant's witness, who boldly said, in the cause of cross examination that the claimant doesn't have to be heard or represented in the administrative hearing and decision against him either personally or by an elected representative, the twin pillars of natural justice which are expressed in the Latin maxims of "Audi alteram partem and nemo judex in causa sua" are relevant in the determination of contract of employment, which presupposes that when an employee is sought to be removed from his employment, he should be furnished with the grounds or reasons for his removal and he should be given ample opportunity to make a representation of his defense over the allegations against him. That the person making the allegation against the employee should not be the person hearing the allegation or determining whether the allegation is true or not. The fair hearing principle is constitutionally entrenched in section 36 (1) and it applies to labour law, cited BOARD OF MANAGEMENT, F.M.C. MAKURDI V. ABAKUME (2016) 10 NWLR (PT 1521) 536 AT 547; ZIIDEEHV RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR (SC).

LEGAL SUBMISSION OF THE DEFENDANT

The Defendant submitted that the Claimant, in compliance with Order 15 (7) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 filed on the 19^th of March, 2024 a reply to the Defendant's Statement of Defence but failed to lead evidence or testify to same by way of a witness deposition. There being no evidence/testimonial challenge to the Defendant's deposed testimony on Oath, the Court was urged to deem the entirety of the Defendant's testimony therein as unchallenged and uncontradicted in its entirety as have been held in a plethora of decisions, including the case of WAEC VS. MURTALA OYEWUSI OBISESAN (1998) 4 NWIR pt. 547 at page 666 P. 670 paragraphs C-D. The Claimant in paragraphs 5, 6 and 7 of his deposition on Oath claimed that the termination of his employment by the Defendant was wrongful and against the rules of his employment and that he was never issued with any query, seat up (sic) or warning from the Defendant for poor performance and also that he had never committed any offence to warrant his termination.

The Claimant placed his stance on the Defendant's Employees' handbook which was admitted in evidence as exhibit CW003. But under cross examination, the Claimant as CW1 made a U-turn, a volte-face and admitted that he had in fact received several queries bothering on his performance of his duties. Exhibit NB001; NB002; NB003 and NB004 were some of the queries and answers admitted in evidence by the claimant which are at variance with his initial evidence on Oath. The Claimant also, under cross examination admitted that his (Claimant's) acts therein, were not in the interest of the Defendant's company. That the Claimant, in addition to having lied on Oath on the issue of queries and poor performance, also helped corroborate the un-contradicted and unchallenged truth in paragraphs 14,15,16,17,19,20,21 and particularly 22, 28 and 29 of the Defendant's witness, DW1 deposed testimony on Oath. Refers to WAEC VS. ABIA (supra). The Claimant made heavy weather over the Defendant's non-compliance with his rules of engagement in its Employees Handbook and admitted that he was bound by the said handbook which in its articles made provisions for the instant case. From the choice to hire and fire, the Defendant's management has discretion to adopt the most appropriate way to deal with arising situations, in line with its rules and regulations.

A community reading of the employee's handbook relied upon by the Claimant as the rules of his engagement shows that three articles govern the ways and manners of termination of an employee's services or outright dismissal or disciplinary measures to be taken that may or may not lead to either of the above two. The circumstances determine which of them becomes the most appropriate for the situations. Article 22 (a) of the said handbook deals with circumstances where the interest of the Defendant is in jeopardy due to the employee's employment. The method to be adopted herein in this article is not subservient to and therefore does not depend on any other. It is independent of any other, as it relates to the interest of the Defendant's Company. Article 23 dwells mostly on the dismissal of an employee, while article 38 focuses on general disciplinary procedures that may or may not lead to termination or dismissal. The most efficient and appropriate procedure is purely a management decision and in fact a corporate responsibility.

Submitted that circumstances, as stated in the said handbook dictates and determines which of the means in the management's opinion, and the articles used and what result. The Defendant adopted the use of article 22 (a) of the Employees' handbook due to the nature of the circumstances of the Claimant's acts. The Claimant's continued employment was viewed by the Defendant's management as inimical to the interest of the Defendant and his service was terminated. His performance was low. He was causing embarrassments and losses to the Defendant by his failures to do his duties, despite being issued with several queries. He was also disrespectful to constituted authority as can be gleaned from the way and manner he responded to, when he chose to respond to the series of queries issued to him. This is insubordination, added to other infractions. The Defendant was left with no choice than to adopt the most appropriate procedures in the circumstance, in line with articles 22 of the Employees' handbook to deal with the situation. It is evidently shown that the Claimant was clearly in violation of the said employee's handbook, his rules of engagement, which evidently led to the termination of his employment. Otherwise, one wonders if there is any other reasonable interpretation of failure to do ones' duties, if not incompetence and dereliction of duty, etc and failure to answer queries within stipulated period, of refusal to obey reasonable orders, which eventually led to the termination of the employment.

Further submitted that a look closely at exhibits NB 001, NB002, NB003 and NB004 which show that there is no evidence that the claimant answered or replied the query issued to him on 21st February, 2020 same admitted as exhibit NB001. There is also evidence that the claimant answered, on the 28^th of November, 2020 another query  was issued to reply within 24 hours on the 27^th of November, 2020. The query and reply are admitted and marked as exhibits NB003 and NB004 respectively. Therein, the Claimant was busy, in his reply in exhibit NB002 explaining why he did not or could not reply the query within stipulated time without explaining, as the query demanded, why "he failed to carry out hourly coding checks.

There is yet again, in evidence that a third query was issued on the 27^th of November, 2020 (exhibit NB002 but the Claimant waited till the 2^nd of December, 2020 to respond to same. In his latest reply, the Claimant was, as usual explaining why it took him 7 (seven) clear days to answer a 24-hour query and even then, yet again, failed and/or refused to address the issue of why he failed to perform his duty diligently. The Defendant's testimony in paragraphs 20, 21 and particularly 22 of DW1's testimony/deposed evidence on Oath which was not only unchallenged but corroborated by the Claimant. This failure of the claimant to perform his duties as can be seen, led to the issuance of performance rating work plan which was signed by the Claimant and admitted as exhibit NB005 and unchallenged by the Claimant and in further admission by the Claimant, of paragraphs 14,15,17,18,19,20 and 21 of the Defendant's DW1's testimony. Submitted that the Claimant has failed woefully to discharge the burden of proof required of him to be entitled to the relief cited NNAEMEKA OKOYE & 6 ors vs. OGUGUA NWANKWO (2014) 6SCNJ pt.11 pg. 395 @ pg. 428.

 

COURT’S DECISION

I have carefully ruminated all the processes filed by both Parties, to begin with, there are two issues for the determination of this suit; the second issue relies on the first. Specifically, the outcome of the first issue in favour of the Claimant will decide if the Court will address the second issue. Therefore, both issues will be resolved simultaneously.

It is worthwhile to reiterate the requirement of the law that he who asserts must prove all his/her assertions against the adverse party on the preponderance of evidence. It is after the Claimant who asserts has discharged the burden of proof that the Court will call upon the adverse party to rebut evidence of the Claimant. Sections 131, 132, and 133 of the Evidence Act 2011 state that whoever asserts must prove; whoever desires to have judgment in his favour must establish his case on a preponderance of evidence. Such a party, therefore, must lead credible and legally admissible evidence to succeed: see the case of ONOVO V. MBA (2014) 14 NWLR (Pt. 1427) 391. Evidential burden of proof arises after the satisfactory discharge of the legal burden of proof, which is the foundation upon it can shift from one side of a case to the other. Where a party fails to discharge the legal burden or onus of proof placed on him, the basis on which the evidential burden can arise would be absent or non-existent: see the case F.R.N. V. MAMU (2020) 15 NWLR (Pt. 1747) 303. Thus, the burden of proof of the case of the Claimant rests squarely on the Claimant.

The Claimant pleaded that the Defendant employed him through Exhibit CW001, and his employment was subsequently confirmed by the letter dated the 17^th of March 2009, which is attached to Exhibit CW001. The Defendant admitted that the Claimant was employed by the Defendant. In legal proceedings, a party's admission is the most compelling evidence, relieving the opposing party from the burden of proof regarding the admitted fact. In civil cases, such admissions are considered evidence against the admitting party unless valid explanations are provided to the court. Once a party acknowledges a fact in their legal pleadings, they are bound by this admission and cannot later dispute it. Consequently, a court is permitted to render a judgment based on these relevant admissions: see the cases of SALAWU V. YUSUF (2007) 12 NWLR (PT. 1049) 707, OSENI V. DAWODU (1994) 4 NWLR (PT. 339) 390, and OGUANUHU V. CHIEGBOKA (2013) 6 NWLR (PT. 1351) 588.

Against this backdrop, there are three categories of employment contracts: pure master and servant relationship, servants who hold their office at the pleasure of the employer, and employment with a statutory flavour. In the master-and-servant relationship, the master has an unfettered right to terminate the employment; however, he must comply with the procedure stipulated in the contract. In a contract with a statutory flavour, the employment is protected by statute. In the event of termination of employment with statutory flavour, strict adherence must be had to the statute creating the employment: see the cases of OVIVIE V. DELTA STEEL CO. LTD. (2023) 14 NWLR (PT. 1904) 203, LONGE V. F.B.N. PLC (2010) 6 NWLR (PT. 1187) 1, MOBIL PRODUCING (NIG.) UNLIMITED V. JOHNSON (2018) 14 NWLR (PT. 1639) 379; and OFORISHE V. NIGERIAN GAS CO. LTD. (20L8) 2 NWLR (PT. 1602) 35.

Without gainsaying, Exhibit CW001 and CW003 (that is, the Claimant’s employment letter and the employee’s handbook) are the bedrock of the case of the Claimant, without which the case of the Claimant will fail and sink. Holistic studied of this case and the fact that the Defendant being a limited liability company incorporated under the Companies and Allied Matters Act is clear indication that the employment of the Claimant with the Defendant is a pure master-servant relationship and the Defendant has an unfettered right to terminate the employment; notwithstanding the unfettered right of the Defendant to terminate the employment of the Claimant, the Defendant must comply with the procedure stipulated in the contract, that is the Exhibit CW003. Failure of the Defendant to comply with the condition of service, that is, Exhibit CW003 in this instant case, will entitle the Claimant to damages.

The Claimant pleaded and led evidence to state that the termination of his employment was wrong, malicious, and meant to intimidate him and other staff of the company against the oppressive conduct of the company. It is worth noting that two issues arise from this claim of the Claimant. Firstly, the issue of motive. The law is that motive or malice, no matter how captivating and touching it may be, cannot be a reason to set aside the termination of the employment unless and if there is a non-compliance with the terms and conditions of the employment. In the case of AGBO V. CBN (1996) 10 NWLR (Pt. 478) 370 where the Court of Appeal held that:

The first issue is whether upon the evidence on record the trial court properly found that the appellant failed to obey lawful instructions. I ought to state at this stage that where an employment has been properly terminated in terms of the contract of service, intention and motive of the termination become irrelevant. The position is that the validity of the exercise of a right - in this case a right to terminate an employment - cannot be vitiated by proof of malice or improper motive. And the law has always been that in the ordinary case of master and servant, the master can terminate the contract of employment at any time for good or for bad reasons or for none.

(underlined mine for emphasis)

Thus, the claim of the Claimant that the termination of employment by the Defendant is influenced by malice to intimidate him and other staff of the company against the oppressive conduct of the company is irrelevant and inconsequential to void the termination of employment of the Claimant. I so hold.

On the other hand, the snag inherent in the case of the Claimant, as can be seen in the Claimant’s pleading, is that the Claimant neither pleaded nor proved how the termination of his employment by the Defendant was wrongful. The Claimant merely stated that the termination of his employment was wrong, malicious, and meant to intimidate him and other staff of the company against the oppressive conduct of the company without more. I do not think the pleading of the Claimant is materially sufficient to make the Court inquire into whether the termination of the employment of the Claimant is wrongful. In the case of OVIVIE V. DELTA STEEL CO. LTD. (2023) 14 NWLR (Pt. 1904) 203 the Supreme Court held that:

It is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus, first, to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these.

In IDONIBOYE-OBU V. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 P. 630 Para B where the Supreme Court held that:

A servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful:

 The Supreme Court in the case of ZIIDEEH V. R.S.C.S.C. (2007) 3 NWLR (Pt. 1022) 554

Since the appellant is not complaining of the termination of appointment with inadequate notice, his complaint of inadequate explanation of the nature of the offences mentioned in the letter as reasons for the termination of his appointment is quite irrelevant. This is because it has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts.

Without gainsaying, the Claimant tendered the Condition of Service, which is Exhibit CW003, but the Claimant neither pleaded nor proved by evidence in what manner the employer breached the said terms. I do not think it is enough to merely state that the termination of his employment was wrong, malicious, and meant to intimidate him and other staff of the company against the oppressive conduct of the company, without pleading a particular provision of Exhibit CW003, the Defendant did not comply. This is just an attempt to send the court on the voyage of discovery.

It is high time the Court needed to reiterate the importance of reading the law generally and labour law and practice in specific before filing a suit. It is not enough to rush to the Court without knowing how a legal wrong can be legally presented before the Court. In the case of ELIAS V. ECO BANK (NIG.) PLC (2019) 4 NWLR (Pt. 1663) 381, where the Supreme Court stated that:

Counsel who is properly briefed to handle a matter for litigants in court should be diligent in doing so. The law and rules of court are expected to be in the breasts of counsel and the courts. Ignorance of either the rule or law by counsel cannot be excused. One on facts may be pardonable in the interest of justice.

On the issue of a fair hearing raised by the Claimant in his Final Written Address, the Defendant pleaded in paragraph 18 of the Statement of Defence that the Claimant performed woefully in the category of ‘partially met’ in 2020, leading to his being issued queries, and the Claimant responded to the queries. The Claimant, under cross-examination, confirmed to the Court that the Claimant was issued queries and the Claimant responded to the said queries. The queries issued to the Claimant were tendered by the Defendant through CW1 and marked Exhibits NB001 and NB003, and the Claimant’s replies to Exhibits NB001 and NB003 are marked Exhibits NB002 and NB004. The Supreme Court in the case of IMONIKHE V. UNITY BANK PLC (2011) 12 NWLR (Pt. 1262) 624 P. 648 paras E – F where the Court held that:

Audi alteram partem is a maxim denoting basic fairness. It is a canon of natural justice that has its roots in the Old Testament. The Good Lord heard Adam before he passed the sentence. It simply means hear the other side. Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed.

Regardless of the justifications of the Claimant as stated in Exhibits NB002 and NB004 of the Claimant is reply to the queries that were issued to the Claimant, the Claimant cannot be heard to be complaining of not affording him a fair hearing. In the case of ARINZE V. FBN LTD (2004) 12 NWLR (Pt.888) 663, the Supreme Court held:

It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution, that before an employer summarily dismisses his employee from his services under common law, the employee must be tried before a court of law, where the accusation against the employee is of gross misconduct, involving dishonest (sic) bordering on criminality… to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint, as formulated, conveys to him the nature of accusation against him... The views of Oputa and Coker  JJSC (supra) which completely support and overlap the decision in Yusuf v. UBN (supra) is to the effect that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee, is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.” See Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25 at 56 - 57 and 59”per Onu JSC.

In this instant case, the Claimant, who was issued queries and responded to the queries, cannot raise the denial of a fair hearing. This Court in Suit No: NICN/KD/19/2023 in the case JULIUS UKAH V CHELLCO INDUSTRIES LTD (unreported) decision of which was delivered on the 18^th of July 2024 held that:

Where an employee accused of misconduct is given an opportunity to be heard, and was heard, the fact that his employer did not accept his explanation as satisfactory does not mean that the employee was not given a fair hearing: see the case of ANSAMBE V. B.O.N. LTD. (2005) 8 NWLR (Pt. 928) 650. In the instant case, contrary to the contention of the Claimant, given the admission of the Claimant that he was queried and he responded to the query, see Exhibit CW003 and CW004 the Claimant was given a fair hearing before his employment was terminated. I so hold.

Flowing from the foregoing, the Claimant was afforded a fair hearing before the Defendant decided to terminate his appointment with the Defendant. In summary, the Claimant's case fails because the Claimant was afforded a fair hearing by allowing him to respond to the allegation. Given Exhibits NB001 and NB003, which are the queries from the Defendant and the Claimant’s replies to Exhibits NB001 and NB003 are contained in Exhibits NB002 and NB004, I refuse to agree with the Claimant that the Claimant was not afforded a fair hearing before terminating his appointment with the Defendant. I so hold.

Flowing from the foregoing, the claim of the Claimant is futile, the Claimant failed to discharge the burden of proof placed on him by the law to warrant the Court to direct the Defendant to discharge the evidential burden of proof. That is, the Claimant failed woefully to prove his case against the Defendant to warrant the Court to consider the defence of the Defendant. The issue for the determination of this suit is resolved against the Claimant and in favour of the Defendant and the Suit is accordingly dismissed. 

I decline to award any cost.

Judgment is hereby entered accordingly.

 

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

KADUNA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA