IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI THURSDAY, NOVEMBER 26TH, 2020
SUIT NO: NICN/LA/608/2017
MR ISAAC OSIEBE - CLAIMANT
1. DANGOTE SUGAR REFINERY PLC.
DANGOTE INDUSTRIES LIMITED
} 1ST& 2ND DEFENDANTS
THE NIGERIA POLICE FORCE
- 3RD DEFENDANT
O.I Okon for the Claimant.
Francis Dada for the 1st and 2nd Defendants.
No appearance for the 3rd Defendant.
The Claimant instituted this suit by a General Form of Complaint and the
accompanying originating processes dated the 7th day of December 2017, seeking
for the following reliefs;
i. An order that the summary dismissal of the Claimant (a staff of the 2nd defendant) by the 1st Defendant was unlawful, void, unwarranted and of no legal effects whatsoever, having not been employed by the 1st Defendant.
ii. A declaration that it is only the 2nd Defendant who employed the claimant that has the power and authority to dismiss the claimant and not the 1st defendant.
iii. An order that the claimant is still an employee of the 2nd Defendant having not been dismissed by the 2nd Defendant.
iv. An order directing the 2nd Defendant to pay claimant’s salary from the month of November, 2016 till date in the sum of N571,230.91 per month.
v. An injunction restraining the Defendants either by themselves or by their agents/privies/servants from further acts of invitation, arrest, detention, molestation and intimidation of the claimant in view of the
Police Investigation Report dated 5th of May, 2017 which exonerated the claimant from criminal liability.
vi. An order that the claimant remain/still a staff of the 2nd Defendant with due entitlements in his employment having not been properly determined by his employer therefore entitled for his remuneration from march, 2016 till claimant employment is properly determined.
i. An order that 1st and 2nd Defendants pay to the claimant the sum of N16,931,284.20 being his gratuity for serving the 2nd defendant for 19 years.
ii. Damages in the sum of N2, 856,154.55 being five (5) months’ salary
from November 2016 to March 2017 being the month the Claimant employment was wrongfully terminated.
The 1st and 2nd Defendants filed its Statement of Defence on the 6th of February
2018. In support of his pleadings, the Claimant testified as his sole witness. The
Claimant adopted his Witness Statement on Oath dated the 7th of December 2017
and his Further and Better Sworn Evidence on Oath dated the 23rd of February 2018. The Claimant tendered 13 documents marked as Exhibits C1 – C13. On the other hand, the 1st and 2ndDefendants called a sole witness, Mr. Ikechukwu Okorie, a Human Resources Manager in the employment of the 1st and 2ndDefendants, DW adopted his witness statement on oath dated 6th of February 2018 and tendered in evidence 6 documents marked as Exhibits D1 – D6. The 3rd Defendant did not defend this case.
THE CASE BEFORE THE COURT
It is the case of the Claimant that he was employed by the 2nd Defendant via a letter of employment dated the 20th day of February, 1998 (admitted in evidence and marked as Exhibit “C1”) and the said appointment was confirmed by the 2nd Defendant via a letter dated the 23rd day of August, 2001 (admitted in evidence and marked as Exhibit “C12”). The 1st Defendant reported a case of stealing to the 3rd Defendant against the claimant and a Police Investigative Report on the matter (admitted in evidence and marked as Exhibit “C8” dated 5th May, 2017), exonerated the claimant of stealing and further states that the particular Way Bill that was involved in the alleged theft of chemical was discovered among the way bills of chemical that had been used for production by the 1st Defendant hence the 3rd Defendant refused to charge the claimant for the alleged criminal offence, but the 1st and 2nd defendants continually requested the 3rd defendant to intimidate and harass the claimant. The Claimant also alleged that the 1st Defendant unlawfully terminated his appointment by a letter of Summary dismissal dated March 29, 2017 (Exhibit “C7”).
in his duties to the 1stDefendant company as a result of which a fraud of enormous
proportions was perpetrated upon the 1stDefendant under the watch of the
Claimant, procedures laid down as safeguards were circumvented and a large
quantity of phosphorous acid was stolen from the 1st Defendant. Upon reporting
the case to the police, the police investigative report exonerated the Claimant as
having not participated in the theft but highlighted several irregularities and lapses
in the control measures in place within the chemical stores department which the
Claimant was supposed to be managing and which said irregularities and lapses
resulted in the huge loss suffered by the 1st Defendant. To the Defendants, the
claimant’s employment was terminated as a result of his negligent in his duties to
THE SUBMISSIONS OF THE DEFENDANTS
Learned Counsel for the defendant formulated a lone issue for determination, to wit;
Whether from all the evidence adduced before the honourable Court, the Claimant has proven his case and is entitled to the reliefs sought?
In arguing issue 1, learned Counsel for the defendant placed reliance on the case of Momoh v. C.B.N.  14 NWLR (Pt. 1055) 504 at 529 -530, and submitted that the contract of employment dated 20 t h February 1998 was not regulated by statute and as such, is a master/servant relationship. Thus, the only pleaded document that regulate the contract of employment between the Claimant and the Defen dant is the Offer of Appointment dated 20 t h of February 1998 (Exhibit C1). Counsel further relied on the case of Shell Petroleum Development Co. v. Lawson-Jack  4 NWLR (Pt. 545) 249 at 270 -271.
Counsel submitted that the Claimant bears the sole burden of proof in this suit. Thus, the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. He relied on section 131 and 132 of the Evidence Act, 2011 and the cases of Orlu v Gogo-Abite (2010) 8 NWLR (Pt. 1196) 307 at 321paras H-A, Awuse v Odili (2005) 16 NWLR (Pt. 952) 416 at 503-504, paras H-B and submitted that the burden of proof of the alleged wrongful termination of the Claimant’s employment ultimately lies on the Claimant to prove. He argued that in the instant case where the Claimant seeks declaratory relief, he must succeed on the strength of his case alone and not the perceived weakness in the case made out by the Defendant in this suit.
Learned Counsel submitted that the allegation of the Claimant is a blatant lie. He argued that there are sufficient evidence before the court that the Claimant was invited and detained by the police who took his statement and on the basis of same statement and other evidence, found him not directly culpable of the fraud that was perpetrated within the company. The Claimant was therefore evidently given a proper and fair hearing before his summary dismissal. Furthermore, Counsel argued that by the query dated 21st November 2016, the Claimant was afforded the opportunity to defend himself when he was directed to give reasons why disciplinary actions should not be taken against him and he seized the said opportunity by replying the query vide his letter of 25th November 2016. Thus, upon the Claimant’s response of 25th November 2016, the obligation of the Defendant has been fulfilled with respect to fair hearing and the Claimant cannot thereafter be heard to say that he was not afforded fair hearing.
Learned Counsel argued that the contract of employment is the bedrock of the employer employee relationship and as such, recourse must be had to the contract of employment in order to determine the rights of parties in the suit.
Counsel relied on the letter dated the 20th of February 1998 and argued that the 2nd Defendant has the power to move or transfer the Claimant to a subsidiary company such as the 1st Defendant. He therefore, urged this court to find that the Defendant exercised its lawful power under the terms of employment in moving the Claimant to its subsidiary.
Counsel argued further that in the instant case, the actions of the 1st Defendant could be regarded as that of an agent acting on behalf of his principal (the 2nd Defendant). He relied on the cases of PORT HARCOURT REFINING COMPANY LTD (PHRC) v. IMOUH OI(ORO (2010) LPElR-4861(CA) page 22 paras A-G, ONUMAlOBI
VS NNPC(2004) 1 NLLR pg 305 and OPUO VS NNPC (2001)14 NWLR PT 734. Counsel submitted that a subsidiary is an agent of the parent company and as such the action of the subsidiary is the action of the parent company. He therefore, urged this court to find that the 1st Defendant validly terminated the Claimant’s employment.
Counsel submitted further that even if an agency relationship cannot be imputed between the 1st and 2nd Defendant, there is an express directive from the 2nd Defendant to the 1st Defendant directing that the 1st Defendant to discipline the Claimant. He urged this court to carefully look at Exhibit D5 which emanated from the 2nd Defendant to the General Manager of the 1st Defendant.
Learned Counsel for the defendant submitted that the 1st Defendant upon the transfer of the Claimant to its employment, the 2nd Defendant integrated the 1st Defendant into its employment relationship with the Claimant such that the 1st Defendant could act on the 2ndDefendant’s behalf and exercise every right of the 2nd Defendant in the relationship including the right to terminate the relationship.
Learned Counsel submitted that the claimant’s ignorance though sufficient to absolve him of theft, however lends credence to the fact that he was negligent in his duty and in fact abdicated his duty to supervise the activities of his subordinates. He urged this court to so hold.
Learned Counsel for the defendant further urged this court to discountenance the argument of the claimant that criminal allegation against him was not proved. Counsel for the defendants argued that the Claimant was not dismissed from the employment of the 1st Defendant on grounds of any criminal conduct but on grounds of negligence/dereliction of duty, as a result, there is no criminal allegation for any court of law to prove or determine.
Learned Counsel submitted that the Claimant has failed to discharge the burden placed on him to prove that he was wrongfully dismissed by the 1stDefendant. Again Counsel argued that a party seeking declaratory reliefs must succeed or fail on his case alone and not on the weakness of the defence. Thus, the Claimant,
having failed to prove his case before this court, is undeserving of the grant of his prayers.
He submitted further that the Claimant, having failed to discharge the burden of proving his claims before this court, the Defendants have no burden to discharge before this court. He referred this court to the case of Dame Pauline K. Tallen&Ors V. David Jonah Jang &Ors (2011) LPELR-9231(CA) pages 19-20 paras F-B.
Counsel went on to submit that assuming, without conceding, that the Claimant was wrongfully dismissed by the 1stDefendant, the remedies available to the Claimant is limited to only damages, being a master/servant relationship. He relied on the case of Festus Mrakpor& Anor v. Police Service Commission (2016) LPELR-40489.
On the quantum of damages that can be awarded, Counsel submitted that damages awarded can only be in the amount the Claimant is entitled to had he been given proper notice or salary in lieu of notice. He relied on the case of Nigeria Produce Marketing Board v A. I. Adewumi (1972) 1 ALL NLR (PT2) 433 at 437.
Counsel went on to submit that the remedy available to an employee in a master/servant relationship whose employment is wrongfully terminated is damages and the quantum is determined by how much he is entitled to if he was given proper notice or salary in lieu of notice. Thus, by the terms of the Claimant’s employment, he is normally entitled to one month’s notice or one month’s salary in lieu of notice.
Counsel submitted further that in the event that this court finds that the Claimant was wrongfully dismissed, the claimant is only entitled to damages in the exact amount of one month’s notice.
On whether the claimant is entitled to the reliefs 1-6 as prayed? Learned Counsel for the defendant submitted that the Claimant is not only underserving of the grant of these reliefs, but that the said reliefs are strange and alien to our law. He referred this court to the case of Mr. Kunle Osisanya V Afribank (NIG) PLC (2007) 6 NWLR (Pt. 10 31) 565, Gboboh v. British Airways PLC (2016) LPELR-40099, Professor Dupe
Olatunbosun V NISER (1988) 3 NWLR (PART 80) 25. Counsel therefore, urged this court to dismiss the claimant’s claims.
Counsel submitted that the claimant alternative relief 1 requires proof. He relied on the case of Harold Shodipo& Co. V Daily Times (1972) 7 NSCC 635 at 638. He submitted further that the Claimant did not lead any evidence at all to show how he arrived at the sum of N600, 000,000 being claimed as damages under the claimant’s alternative relief 1, neither did he tender any document in support of the claim. He went on to submit that a bare assertion as that being made by the Claimant as to his entitlement is not enough to ground an award of this head of claim in the absence of credible and qualitative evidence in that regard. He relied on the cases of Trade Bank Plc V Deen-mak Construction Co. Ltd & Anor. (1996) 2 NWLR (Pt. 432) 577 at 591. N.A. Ltd V Aiyeoribe (2000) 17 WRN 40 at 49, Agbo V CBN (1996) 10 NWLR (Pt. 478) 370 at 380. Artra Industries Ltd V N.B.C.I. (1997) 1 NWLR (Pt. 483) 574 at 598. In NNB Plc V Egun (2001) 7 NWLR (Pt. 711) 1 at 19.
Finally, Counsel submitted that the Claimant is not entitled to the sum claimed in relief 1 of his alternative relief. He urged the court to so hold.
THE SUBMISSIONS OF THE CLAIMANT
Learned Counsel for the claimant distilled five issues for determination, which are;
a. Whether the Summary dismissal of the claimant by the 1st defendant was not unlawful, invalid, void, unwarranted and of no legal consequences in views of the position of law that “he who hires, fires”.
b. Whether there was/is privity of contract between the claimant and 1st defendant that would warrant 1st defendants’ summary dismissal against the claimant.
c. Whether the summary dismissal of the claimant by the 1st defendant was not wrongful, allegation of commission of criminal offence not having been first proven before a court of competent jurisdiction.
d. Whether the evidence adduced at trial by Mr. Ikechukwu Okorie who
is 1st defendant employee can also serve as evidence of the 2nd defendant without more in view of the distinct legal personality of the 1st and 2nd defendant.
e. Whether claimant’s averments and evidence on computation of
claimant’s gratuity was properly traversed by the 1st and 2nd defendants to amount to a denial of same.
Learned Counsel for the claimant argued issue 1 and 2 together for the avoidance of vain repetition. He stated that the gravamen of claimant’s complaints as contained in issues 1 and 2 is founded on privity of contract.
Counsel defined Privity of Contract as “the relationship between parties to a contract, allowing them to sue each other but preventing a third party (stranger) from doing so. He referred this court to Black’s Law Dictionary, 8th Edition by Bryan A. Garner, page 1237, and the cases of Attorney General, Federation Vs. A.I.C. Ltd (2000) F.W.L.R. (pt. 26) 1744 at 1756-1757, Paras. G-B and 1762-1763, paras. E-A, and the case of Basinco Motors Ltd. vs. Woermann-Live &Anor (2009) L.P.E.L.R- SC 24/2003.
He stated that the claimant was employed by the 2nd defendant, confirmed by the 2nd defendant and summary dismissal by the 1st defendant was not denied by the 1st and 2nd defendants both by pleadings, sworn evidence and during cross examination of 1st defendant sole witness. He relied on Exhibits “C1”, “C12” & “C6” and submitted that the position of the Law as regards admitted facts is that, facts admitted needs no further proof. Counsel referred this court to the case of Santi vs. Bagobiri (2005)2 F.W.L.R. (pt. 263)550 CA and section 123 of the Evidence Act, 2011.
Counsel submitted that the 1st defendant was not a party to the Contract of employment between the claimant and the 2nd defendant even though it was provided in Exhibit “C1” that the claimant could be moved to any of the subsidiary companies in any part of the Country and even though the employment of the
claimant was for the benefit of the 1st defendant. He referred this court to the case of Basinco Motors Ltd. vs. Live &Anor. (2009)L.P.E.I.R. S.C. 24/2003 (Supra).
Furthermore, learned Counsel submitted that the 1st defendant being a beneficiary of the employment of the claimant has no legal right to fire the claimant since it was not the party that hires the claimant. He referred this court to the cases of Akihfe Vs. UBA (2007)3 F.W.L.R. (Pt. 385) 5271 r.1, Kubeinye (1994) 1 A/C N.L.R. (Pt. 2)267, Katagun & Ors. Vs. M.E.K. Roberts (1967)1 all NLR 127 and AdeyemoVs. Oyo State Public Service Commission (1979)1 F.N.R. 28.
Learned Counsel placed reliance on the case of Akinkugbe Vs. Ewulum Holdings Ltd (2008)12 BWLR (Pt. 1098)375 S.C. at 395H and submitted that subsidiaries of a company are in the eye of the Law separate and distinct legal personalities from parent company. They act and carry the consequences personally. Thus, the 1st and the 2nd defendants are not the same company as the 1st and 2nd defendants’ witness attempted to hoodwink the Court during cross examination.
He argued that the 1st and 2nd defendants are two distinct companies even by comparing the RC Numbers of both. 1st defendant RC Number is 613748 shown on Exhibit “C7” while the RC Number of 2nd defendant is 71242 as shown on Exhibit “C1”.
Counsel argued further that since 1st and 2nd defendants are two distinct entities in the eye of the Law, it could be inferred that no privity of contract existed between the claimant and the 1st defendant. He referred this court to Exhibit “C1”and the cases of HANSON VS. RADCLIFF’S URBAN DISTRICT COUNCIL (1922)2 CH 490, NgbeneborVs. Ngbenebor (1971)1 NLR 210, 270-1, and Savannah Bank Plc vs. Ibrahi, (2000) F.W.L.R. (pt, 25) 1626 at 1645 CA r.4.
Counsel urged this court to hold that the 1st defendant is a total stranger to Exhibit “C1” the contract of employment between the claimant and the 2nd defendant in line with the above authorities and that the summary dismissal of the claimant by the 1st defendant was null, illegal, void and of no effect whatsoever, meaning
therefore that the claimant is still a staff of the 2nd defendant having not been fired by 2nd defendant who hired him. He relied on the cases of OLUSEYE VS. LAWMA (2003)17 NWLR (PT. 849)309 R.4, N.I.I.A. vs. Ayanfeolu (2006)4 FWLR (Pt. 345)7456 r.5, and urged this court to hold that the claimant is still an employee of the 2nd defendant and that the dismissal of the claimant by the 1st defendant is void and of no legal effect.
On issue 3, that is whether the summary dismissal of the claimant by the 1st defendant was not wrongful, allegation of commission of criminal offence, not having been first proven before a court of competent jurisdiction.
Learned Counsel stated that the claimant pleaded and led evidence in support of Exhibit “C10” which was the query dated 21st November, 2016, that from the wordings of Exhibit “C10” it raises a criminal offence of involvement in the fraudulent act. He stated further that 1st defendant believe that the purported fraudulent act was criminal in nature, that necessitated their reporting the case to the 3rd defendant charged with the responsibility of criminal investigation. The 3rd defendant came out with Exhibit “C9” which exonerated the claimant of any criminal act. He referred this court to the conclusion of Exhibit “C9” in this regard.
Learned Counsel referred this court to the definition of Fraud as defined in the Black’s Law Dictionary Eight Edition by Bryan A. Garner and the case of OtukpoVs. John &Anor. (2012)3 S.C (pt. iv)95 at 120 and submitted that the position of the Law as regards an employee accused of commission of a criminal offence is as enunciated in the case of Institute of Health Amadu Bello University Hospital Management Board Vs. Mrs. Jummair I. Anyip (2011)5 SC (Pt. 1)54 at 67 & 68 where the Supreme Court referred to the case of Sofekun Vs. Akinyemi (1980)5-7 S.C. 1 in deciding that “ Once a person is accused of a criminal offence, he must be tried in the court of Law where the complaint of his accusers can be ventilated in public and where he would be sure of getting a fair trial”. Thus, the 1st and or the 2nd defendants did not therefore proof the reason for dismissing the claimant.
Again, learned Counsel argued that the 1st Defendant did not charge the claimant to a criminal court of competent jurisdiction which would have given the claimant the necessary opportunity to defend himself before disciplinary action of summary dismissal could have been taken against the claimant. He was therefore denied fair hearing. He relied on Section 135 (1) (2) & (3) of the Evidence Act. 2011 and submitted that, from the provision of the Evidence Act, 2011 that fraud/stealing being criminal in nature must be proved beyond reasonable doubt. The burden in this case is on the 2nd defendant who asserts that the claimant was involved in fraudulent act according to Exhibits “C10”, “C6”and “C7”. He referred this court to the case of Otukpo Vs. John &Anor. (Supra) and AnsaVs. Ishie (2005)4 FWLR (Pt. 287) 1413 at 1424.
Counsel went on to argue that the denial of the criminal allegation by the 1st and 2nd defendant was after-thought which holds no water. He therefore, urged this Court to hold that the summary dismissal of the claimant by the 1st defendant was wrongful, void and of no legal effect, the allegation of fraudulent act having not been first referred to a court of competent jurisdiction for ad-judicature, therefore not proven by the 1st defendant as required by Law. He relied on the cases of OludareVs. WAEC (2006)3 FWLR (PT. 332)5527 r.1. Savannah Bank (Nig.) Plc vs. Fakokun (2002)1 NWLR (Pt. 749) and S.P.D.C. vs. Olanrewaju (2002) 16 NWLR (Pt.
792) 38, Institute of Health Ahmadu Bello University Hospital Management Board (2011)5 S.C. (Pt. 1)54 at 71 lines 15-23.
Finally on issue 3, Counsel submitted that the defendants did not proof the allegation against the claimant before he was summarily dismissed. The only thing that would have happened would have been if the claimant was referred to a Criminal Court of the competent jurisdiction to hear the allegation against the
claimant. The 1st and 2nd defendants therefore did not proof the reason before taking disciplinary action dismissal against the claimant. He urged this court to so hold.
On issue 4, that is whether the evidence adduced at trial by Mr. Ikechukwu Okorie who is 1st defendant employee can also serve as evidence of the 2nd defendant without more in view of the distinct legal personality of the 1st and 2nd defendant
Counsel stated that the 1st and 2nd defendants were represented by one Counsel who filed a joint 1st and 2nd defendants’ statement of defence and a joint 1st and 2nd defendants’ witness statement on oath both dated 6th of February, 2018 and deposed to by one Mr. Ikechukwu Okorie. He stated further that Paragraph 1 of 1st and 2nd defendants’ statement on oath deposed to by Mr. IkechukwuOkorie, he alleged to be an employee of the 1st and 2nd defendant. Whilst on March 14, 2019 during further cross examination, the same witness testified that he is an employee of the 1st defendant. Thus, from the evidence of the defendants’ sole witness, it is clear that he is approbating and reprobating at the same time. As such he cannot be regarded as a witness of truth. He referred this court to the case of Ifeadi Vs. Atedze (1998)13 NWLR (pt. 581)205.
Counsel argued that the defendants’ witness having testified under cross
examination that he is an employee of the 1st defendant to therefore testify on
behalf of the 2nd defendant, the weight of his evidence is affected adversely against
the 2nd defendant. He referred this court the cases of Ogbaji Vs. Arewa Textiles Plc
(2000) F.W.L.R. (pt. 24) 1493 at 1513 B-D, Nwokidu and 3 ors. Vs. Okanu & Anor
(2010) 1 SC. (pt. 1) 136 at 172.
Counsel argued that the witness claimed that he is also a witness for the 2nd defendant without any Power of Attorney or the like to present to the Court before testifying for the 2nd defendant. He cannot therefore, commit or exonerate the 2nd defendant. He referred this court to the cases of City Express Bank Ltd. vs. Trade and Finance Services (2005)4 FWLR (Pt. 282) at 2013 r.8, Jawando vs. Bakare (2006)4 FWLR (Pt. 345)7445.
Furthermore, Counsel submitted that the 2nd defendants’ statement of defence was not supported with evidence at trial. Thus, the averments in a statement of defence not supported with evidence goes to no issue and should be dis-regarded. He referred this Court to the cases of Ogbeide Vs. Osula (2004)12 NWLR (Pt. 886) at 86 r.13, Kayde Ventures Ltd. Vs. Hon. Minister of F.C.T. & 2ors (2010) 2-3 S.C. (pt. 111)1 at 31-32.
He submitted that the evidence of the claimant remains uncontroverted, unchallenged and established against the 1st and 2nd defendant and should be deemed true and admitted. He referred this court to the cases of Jolayemi vs. Alaoye (2005)1 FWLR (Pt. 257) at 899 r.3, Military Governor of Lagos State & 4 Ors. Vs. Adeyiga & 6ors. (2012)2 S.C. (PT.1)68 at 123, Ogundade vs. Oshunkeye & Anor. (2007)7 S.C. (Pt. 11)60 at 74 lines 20-36.
Counsel therefore, urged this court to hold that the evidence adduced at trial against the 2nd defendant was unchallenged, since Mr. Ikechukwu Okorie has no Power/Authority to testify for the 2nd defendant.
On issue 5, that is whether claimant’s averments and evidence on computation of claimant’s gratuity was properly traversed by the 1st and 2nd defendants to amount to a denial of same.
Learned Counsel prays this Court to uphold claimants’ no. 1,2,3,4 & 6 claims. If that is so, the issue of gratuity should not be considered but if however those primary prayers are refused, the claimant is entitled to gratuity/damages as computed by the claimant in paragraph 20 of both particulars of claim and sworn evidence on oath being N16, 931,284.20 gratuity and N2,856,154.55 damages respectively being gratuity and 5 months’ salary for the period of wrongful termination. He referred this court to the case of Okongwu Vs. N.N.P.C. (1989) T.W.L.R. 174-332 at Page 284 where the Supreme Court referred to the decision in Badley Vs. Baxendale (1854)9 Exch. 34.
Counsel submitted further that if this invalid breach of claimant’s contract of employment did not occur, the claimant would have been entitled to his gratuity and damages/salaries as claimed in the alternative claim. He prays this court to so hold in the interest of justice and fair play. He referred this court to the case of Niko Engineering Ltd. vs. Akinsina (2005)4 F.W.L.R (pt. 293)2150 r.1. Counsel argued that the computation of gratuity and damage is therefore deemed admitted.
Finally, we urge the Court to consider the alternative claims should the main claims failed.
THE COURT’S DECISION
After careful consideration of the processes filed, the evidence adduced, the submissions and arguments of counsel with the authorities cited, I adopt the issues formulated by the Claimant for determination in the final address as they have, in
my view, sufficiently captured the issues in controversy between the parties herein and their resolution in this judgment will completely determine the issues raised in this case; I reproduce the issues hereunder:
1. Whether the Summary dismissal of the claimant by the 1st defendant was not unlawful, invalid, void, unwarranted and of no legal consequences in views of the position of law that “he who hires, fires”.
2. Whether there was/is privity of contract between the claimant and 1st defendant that would warrant 1st defendants’ summary dismissal against the claimant.
3. Whether the summary dismissal of the claimant by the 1st defendant was not wrongful, allegation of commission of criminal offence not having been first proven before a court of competent jurisdiction.
4. Whether the evidence adduced at trial by Mr. Ikechukwu Okorie who is
1st defendant employee can also serve as evidence of the 2nd defendant without more in view of the distinct legal personality of the 1st and 2nd defendant.
5. Whether claimant’s averments and evidence on computation of claimant’s gratuity was properly traversed by the 1st and 2nd defendants
to amount to a denial of same.
Issues 1 and 2 will be resolved together as they are so intertwined. The Claimant’s case as can be garnered from the pleadings is founded on wrongful dismissal, but the Claimant termed it unlawful, invalid, void, unwarranted e.t.c. I wish to state here that the contract between the parties herein is that of master and servant, a case of dismissal in this type of employment contract will at best be treated as
wrongful dismissal. Ordinary master and servant relationship is distinguished from employment with statutory flavour over which an action can be founded on unlawful dismissal. I find support from SAIBU v. KWARA STATE POLYTECHNIC, ILORIN (2008) LPELR-4524(CA) where the Court of Appeal Per Ogunwumiju, J.C.A. held at Pp. 31-32, paras. G-C, thus:
I must state here that the misconception of using the words 'unlawful' and 'wrongful' interchangeably with respect to the action of an employer still persists. Where it is a master servant relationship at common law in which the terms of employment and discipline are regulated by the contract of service, where there is a breach, such breach is called "wrongful" and the employee is only entitled to damages for such
breach. Whereas, in the case of an employment regulated by statute, a breach of the statute amounts to an "unlawful" act which can be declared null, void, of no effect which entitles the employee to reinstatement
By the same token, the Supreme Court in UBN LTD v. OGBOH (1995) LPELR-3387(SC) . Per BELGORE, J.S.C. held at P. 23, paras. B-E thus:
In other cases governed only by agreement of parties and not by statute removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void; the only remedy is a claim for damages for that wrongful dismissal. 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 his wrongful act he is only liable in damages and nothing more
In Osisanya v. Afribank (Nig.) Plc (2007) 6 NWLR (Pt.1031) 565, KATSINA-ALU, J.S.C. held at P. 19, paras. D-E thus:
“In a master and servant relationship, a dismissal of the employee by the employer, cannot be declared null and void and of no effect whatsoever. The employee's remedy is in damages where the termination of the appointment or dismissal is held to be wrongful."
Now, the case of the Claimant is that his summary dismissal by the 1st defendant is of no legal effect whatsoever having not been employed by the 1st Defendant. The Claimant therefore seeks for two declaratory reliefs under reliefs one and two. It is the law that an applicant of declaratory relief must satisfy the Court that he is entitled in law to the relief claimed. See Chukwumah v. S.P.D.C (1993) LPELR-864 (SC), Okoye v. Nwankwo (2014) LPELR-23172 (SC) and Iliya & Anor.v. Lamu & Anor (2019)LPELR-47048 (CA).
It is also a settled principle of law that in an action for wrongful dismissal from employment, the burden is always on the Claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer. See UBA PLC v. ORANUBA (2013) LPELR-20692(CA).
Now, the Claimant averred at paragraphs 1,4,6,and 7 of the statement of facts that he was employed by the second Defendant vide Exhibit C1, that after confirmation of his appointment vide Exhibit C12, he was moved to the 1st Defendant, that he was served with a query (Exhibit C10) by the 1st Defendant on November 21st, 2016 to which he replied(Exhibit C11) but he was later suspended without pay on November 24th, 2016 vide Exhibit C6 and that he was dismissed by the 1st Defendant on
November 29th, 2017 vide Exhibit C7. The Claimant admitted under cross examination that he was promoted by the 1st Defendant vide Exhibit C2, that he was employed and transferred to the first Defendant for very long time, that paid him salary and paid his tax for a very long time which he did not reject. The Claimant argued in the final written address that the 1st Defendant was not privy to the employment contract between himself and the second defendant even though it was provided in Exhibit C1 that the Claimant could be moved to any of the subsidiary companies in any part of the Country and even though the employment the Claimant was employed for the benefit of the 1st Defendant. The Claimant submitted that the
that the claimant was employed by the 2nd defendant, confirmed by the 2nd defendant and summary dismissal by the 1st defendant was not denied by the 1st and 2nd defendants both by pleadings, sworn evidence and during cross examination of Defendants’ sole witness. To the Claimant, since 1st and 2nd defendants are two distinct entities in the eye of the Law, it could be inferred that no privity of contract existed between the claimant and the 1st defendant.
Now, the facts averred to at paragraphs 1, 4, 6 and 7 of the statement of facts were not denied by the Defendants in their statement of defence. In their final address, the Defendant argued that the actions of the 1st Defendant could be regarded as that of an agent acting on behalf of his principal (the 2nd Defendant), that a subsidiary is an agent of the parent company and as such the action of the subsidiary is the action of the parent company, that even without agency relationship, there was an express directive from the 2nd Defendant to the 1st Defendant to discipline the Claimant. Learned Counsel for the defendant submitted that the 1st Defendant upon the transfer of the Claimant to its employment, the 2nd Defendant integrated the 1st Defendant into its employment relationship with the Claimant such that the 1st Defendant could act on the 2ndDefendant’s behalf and exercise every right of the 2nd Defendant in the relationship including the right to terminate the relationship.
Now, the doctrine of privity of contract is that a contract cannot confer rights or impose those obligations arising under it on any person except the parties to it. This doctrine was defined by the Supreme Court in B.M. Ltd. v. Woermann-Line (2009)
13 NWLR (Pt.1157) 149 S.C thus:
“ The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither
stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be used upon the contract.”
There is however a certain instance where the courts look beyond the concept of separate personality that exists between the parent company and its subsiadiarie. In Union Beverages Limited v. Pepsiocola International Limited & Ors. (1994) LPELR-3397 (37), the Supreme Court stated thus
“The companies are to all intent and purposes one, their corporate veil could be pierced and each could be held liable for the action of the other. If ever one company can be said to be the agent or employee, or tool or simulacrum of another the two companies would be treated as one. In the case of DHN Food Distributors v. London Borough of Tower Hamlets (1976) 3 All E. R. 462 the Court of Appeal pierced into the corporate veil of three companies and treated them as one for the purposes of a claim for compensation. Lord Denning gave his opinion in that case as follows: "We all know that in man) respects a group of companies are treated together for the purpose of general accounts, balance sheet and profit and loss account. They are treated as one concern. Professor Gower in his book on company law says: there is evidence of a general tendency to ignore the separate legal entities of various companies within a group, and to look instead at the
economic entity of the whole group. This is especially the case when a parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries. These subsidiaries are bound hand and foot to the parent company and must do just what the parent says. A striking instance is the decision of the House of Lords in Harold Holdworrh & Co. (Wakefied) Ltd. v Caddies. So here. This group is virtually the same as partnership in which all the three companies are partners. They should not be treated separately so as to be defeated on a technical point. They should not be deprived of the compensation which should justly be payable for disturbance. The three companies should, for present purposes, be treated as one, and the parent company, DHN, should be treated as that one. So that DHN are entitled to claim compensation accordingly. It was not necessary for them to go through a conveyancing device to get it. Calling the respondents in this appeal conglomerate and multi-national is not enough to convince the court that they could be
Relying on the above cases, the Court of Appeal in Onumalobi v. N.N.P.C (2004)1 N.N.L.R Pt 2 pg 304 (CA), held that privity of contract will be held to exist between an employee and the subsidiary company of his employer to which he has been transferred where the subsidiary is totally integrated into and under the control of the parent company and the subsidiary company qualifies to be described as an employer under s. 91 of the Labour Act.
In the instant case, it is not in dispute that the 1st Defendant is a subsidiary of the 2nd Defendant, also not in dispute is the fact that Exhibit C1 clearly stated that during the period of the Claimant’s appointment with the 2nd Defendant, the Claimant could be moved to any of the subsidiaries of the 2nd Defendant in any part of the Nigeria. Now, after confirming the Claimant’s appointment, the 2nd Defendant transferred him to the 1st Defendant who since then continued to pay him salaries as can be seen from Exhibit C5, upgraded him vide Exhibit C2, paid tax for him, issued him with a query, reassigned him to its main store, later suspended him vide Exhibit C6 and finally dismissed him vide Exhibit C7. What I take from all these is that the 1st Defendant was for all intent and purposes integrated into the employment contract between the Claimant and the 2nd Defendant and has thus become privy to same. This being the case I find that there was privity of contract between the Claimant and the 1st Defendant and I so hold, issues number 1 and 2 are accordingly resolved against the Claimant.
This takes me to the third issue for determination which is whether the summary dismissal of the claimant by the 1st defendant was wrongful, allegation of commission of criminal offence not having been first proven before a court of competent jurisdiction.
The Claimant averred at paragraphs 8, 9nand 10 of the statement of facts that the Defendants reported him to Police where he was invited first for interrogation and later for interview with the Commissioner of Police Special Fraud Unit, Ikoyi, Lagos and that he was exonerated of the alleged criminal offence by the Police Report ( Exhibit C9). The Claimant averred under cross examination that he was in charge of
the chemical section, that there was discrepancy at the section, that he was not aware that irregularities were going on in the unit because it was not reported to him but it was his duty, that Exhibit C7 did not accused him of stealing anything and that the reason given for his dismissal in Exhibit C7 was were gross negligence and dereliction of duty.
It is the Claimants contention that it is the law that where an employee is accused of committing crime, he must be tried in the court of Law where the complaint of his accusers can be ventilated in public and where he would be sure of getting a fair trial. That the 1st Defendant did not charge him to a criminal court of competent jurisdiction which would have given him the necessary opportunity to defend himself before disciplinary action of summary dismissal could have been taken against him and was therefore denied fair hearing. To the Claimant, his purported dismissal by the 1st Defendant is void and of no legal effect, the allegation of fraud having not been referred to a court of competent jurisdiction for adjudication. The Defendants urged this court to discountenance the argument of the Claimant that criminal allegation against him was not proved. To the Defendants, the Claimant was not dismissed from the employment of the 1st Defendant on grounds of any criminal conduct but on grounds of negligence/dereliction of duty, as a result, there is no criminal allegation for any court of law to prove or determine.
It is no longer the law that when an employee commits acts of gross misconduct against his employer which acts also disclose criminal offence under any law, the employer has to wait for the outcome of the prosecution of employee before proceeding to discipline the employee under the contract of service or employment.
I find support from the Supreme Court’s decision in Arinze v. First Bank Ltd. (2004) 12 NWLR (Pt. 888) 66, Pg 11, pars. A-E , where Onu JSC quoted Wali JSC in Yusuf v.Union Bank of Nigeria Ltd. (1996) 6 SCNJ 201
As Wali, J.S.C pointed out at pages 214-215 in the latter case: 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 the common law, the employee must be tried before a court of law where the accusation against the employee is of gross misconduct involving dishonest 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 the accusation against him.'''
It is pertinent to reproduce the contents of Exhibit C7 hereunder; it reads thus:
Mr. Isaac Osiegbe
9, Modupe Street
Cele Bus stop
Dear Mr. Osigbe
Please recall that case of missing chemical which led to the Company loosing several millions of Naira from your section, and the subsequent investigation by both the Internal Audit department and the Committee of Investigation as well as our query of 21st November, 2016.
The reports of both the internal audit Committee of investigation established your gross negligence/dereliction of duty that led to the loss. Also, your reply to our query was not sufficient and necessary to exonerate you from the above mentioned offence.
Consequently, we regret to inform you of the decision of the Management to dismiss you from the services of the Company with immediate effect.
You are by this letter required to return your ID card and other documents,
equipment/materials, property that may have been entrusted to you in the course
of your engagement with the company to Human Resource/Admin Department
and obtain clearance from them.
FOR: DANGOTE SUGAR REFINERY PLC
Now, from the contents of Exhibit C7 reproduced above, it is clear that the dismissal of the Claimant was not based on criminal allegation; the Claimant was dismissed on account of gross negligence/dereliction of duty. I do not want to visit the issue of dismissal on ground of negligence/dereliction of duty because the Claimant has not made a case for it in his pleadings. For the foregoing reasons I resolve issue number 3 against the Claimant.
Issue number 4 is whether the evidence adduced at the trial by Mr. Ikechukwu Okorie who is 1st Defendant’s employee can also serve as evidence of the 2nd defendant without more in view of the distinct legal personality of the 1st and 2nd defendant. I think I do not need to comment too much on this issue given that I already resolve that the defendant’s herein are treated as one for the purpose the Claimant’s employment. Suffice it to observe here that there is no harm for the Defendant’s witness deposing to the facts that he was employed by the 1st and 2nd Defendants and to claim that he was an employee of the first Defendant under cross examination. In the realm of employment law, the concept of separate legal personality is often overlooked where the relationship between two or more corporate bodies is that of a subsidiary (ies) and parent company. This because it is the parent company that employs and posts or transfers the employee to its subsidiaries and under certain circumstances, as in the instant case, the subsidiary company is even integrated in to the contract between the employee and the parent company. For this reason I find that the Defendants’ witness in this case can testify for both Defendants in this case. Issue 4 is accordingly resolved against the Claimant.
Issue number 5 is whether claimant’s averments and evidence on the computation of Claimant’s gratuity were properly traversed by the 1st and 2nd defendants to amount to a denial of same. This issue was formulated by the Claimant in support of the alternative relief (i) which is for the sum of N19, 931,284.20 being the Claimant’s gratuity for serving the Defendants for 19 years. This is a claim for special damages which in law must be specifically pleaded and strictly proved. It follows therefore that failure of the Defendants to properly traverse those averments in their statement of defence does not take away the burden placed on the Claimant to strictly prove same. The Claimant did not place anything before this court to
prove the averments on this relief in the pleadings. I find that this relief has failed and I so hold.
In the final analysis and for all the reasons stated, I find that the Claimant’s case lacks merit, fails in its entirety and same is hereby dismissed. Judgment is entered accordingly; I make no order for cost.
HON. JUSTICE MUSTAPHA TIJJANI