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    IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

    IN THE ENUGU JUDICIAL DIVISION

    HOLDEN AT ENUGU

     

    BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

     

    DATE: FRIDAY 19TH FEBRUARY 2021    SUIT NO.NICN/EN/67/2017

     

    BETWEEN:

     

    MR. KELECHI IROEZINDU……………………………….CLAIMANT

                     

    AND

     

    1.     BANKER’S WAREHOUSE PLC

    2.     VICTOR HAMMOND                                 DEFENDANTS

    [MD/CEO BANKERS WAREHOUSE]                                  

    3.     PAULA OHIWERIE (MRS)

    [HEAD HUMAN RESOURCES & ADMINISTRATION

    BANKERS WAREHOUSE PLC]

     

     

    APPEARANCES:

    1.     DR. GODSTIME OKAFOR WITH C.G. OGO, CHIDIMA DIM, CHINENYE EGBO, CHIDIRE ONAH, AND FAVOUR OGALA – FOR THE CLAIMANT.

    2.     NO REPRESENTATION FOR THE DEFENDANTS.

     

    JUDGMENT

    INTRODUCTION

    COMPLAINT commenced this suit 19th December 2017. At paragraph 11 of the Statement of Facts, wrongly tagged “Statement of Claim”, the following reliefs were set out:

    1.     A DECLARATION that

    (a)   The Claimant was in the employment of the Defendants from February 2015 to November 2015.

    (b)  The Claimant is entitled to his remuneration from the Defendants including salaries and pension (monthly contribution and leave allowance) from February 2015 to November 2015.

    2.     AN ORDER COMPELLING the

    (a)     Defendants to jointly and severally pay the Claimant his salaries and pension (monthly contribution and leave allowance) for the period February 2015 to November 2015.

    (b)    Defendant [sic] to jointly and severally pay the Claimant his pension (monthly contribution) from February 2015 to November 2015.

    (c)     Defendants to jointly and severally pay the Claimant his non-accident bonus from April 2012 to November 2015.

    (d)    Defendants to jointly and severally pay the Claimant his leave allowance for the period February 2015 to November 2015 being Fifty-four [sic] Thousand Naira (N54,000) which is 10% of his annual salary.

    (e)     Defendants to jointly and severally pay the Claimant the sum of Four Hundred and Sixty-three Thousand Nine Hundred and Ninety-four Naira (N463,994) being salary from February 2015 to November 2015.

    (f)      The Defendants to jointly and severally pay the Claimant the sum of Twenty Million Naira (N20,000,000) being the general, exemplary and aggravated damages and consequential damages for the loses of the Claimant, psychological, physical and financial all through the period he was wrongfully denied of active service.

    (g)     Defendant [sic] to jointly and severally pay the Claimant the sum of Two Million Naira (N2,000,000) being the cost of this action.

     

    Against the above, the defendants originally jointly filed Statement of Defence. Subsequently, the defendants jointly filed Amended Statement of Defence on 19/06/2018. The claimant reacted by Reply to the Amended Statement of Defence on 23/01/2019. That is all about the important processes filed for now. I move to summaries of the cases made by the parties in their pleadings.

     

     

     

     

    SUMMARIES OF THE CASES IN THE PLEDAINGS

    A. Case Made By The Claimant

    The claimant pleaded that; the 1st defendant employed him by a letter dated 19th April 2012 and that, he wrote a letter dated 18th November 2015, demanding for his salaries and allowances from January 20 to November 2015; and that, his appointment was terminated by a letter dated January 20, 2015, served on him 30th November 2015. The claimant pleaded further that, the defendants subsequently paid him only one-month salary for January 2015; and that, the letter of pay dated 30th November 2015, was served on him along with the cheque dated 1st December 2015, which was obviously a backdated letter of termination. On the basis of the foregoing, the claimant claimed the reliefs earlier reproduced above. That ends the Statement of Facts. I move to the defence, which is Part B.  

     

    B. The Defendants’ Defence

    The defendant admitted the 1st defendant employed the claimant under some conditions of service, which demanded that, he devoted full time to the employment; and that, on 12th January 2015, the claimant illegally went away with keys to the vehicle assigned to him as a driver and; failed, without notice, to report to work the following day. They counterpleaded further that, all attempts to reach the claimant on phone failed. The defendant counterpleaded that this caused them great loss. The defendants counterpleaded further, that, the claimant was subsequently invited to appear before Disciplinary Committee [DC]. The defendants counter-pleaded that, before the committee sat, the claimant wrote to admit his absence on the fateful date and unlawfully going away with the car-key without permission. The defendants counterpleaded that, on 16th January 2015, the claimant appeared before DC of the 1st defendant, and was afforded fair hearing and; that, the decision of the DC to dismiss the claimant was issued to the claimant with acknowledgment. The defendants counter-pleaded that, the claimant was thereafter instructed to proceed to the Human Resources Department [HRD] to collect his letter of dismissal and for calculation and payment of his terminal benefits, but that, the claimant refused and became unreachable for 11 months.

    The defence also counter-pleaded that, several efforts made to serve the claimant proved abortive, as his phone line was switched off and that, the letter, which was later despatched to the claimant’s residential address was returned un-received. The defence counter-pleaded that, this was the situation till 18th November 2015 when the defendants received the claimant’s solicitor’s letter and thereafter served the claimant when he came to the defendants’ Head Office. The defence counter-pleaded too, that, the claimant’s terminal benefit was paid by cheque 1st December 2015. The defendants counter-pleaded that, the claimant’s employment was terminated 16th January 2015, upon signing the Disciplinary Report [DR], while the dismissal letter served 30th November 2015, after re-establishing contact with the claimant. The defence finally pleaded that; the claimant is not entitled to the reliefs pleaded. That ends the defence. I move to the further justification of the claimant’s case in the Reply.

     

    C: Further Justification of the Claimant’s Case

    The claimant countered the defence and said that, he devoted full time to the work. The claimant replied that, contrary to the averment of the defence, his line was on the fateful day and he spoke with Mr. Orji and returned the key that morning. The claimant replied that, the Staff Record was signed under duress and deceit and the vehicle he worked with was bad, to the knowledge of the other driver, who was not invited to the DC’s trial. The claimant said that, as at the time he signed disciplinary report, the relevant sanction box was not ticked and nothing was written on it. The claimant also said, there was no employee representative or witness at his trial. The claimant said, contrary to the defence, he was never absent on duty, except the fateful day because, he was sick, as a result of the injury sustained while pushing his faulty official vehicle and; that, he knew nothing about the four offences charged and; that, there was no report on plea taking and; that, he was not given fair hearing. He replied that nobody informed him to report to the HRD but, he was only told that, he would hear from the 1st defendant later; and that, he took this for Stood-Off, a usual practice of the 1st defendant. He replied further, that, he did not hear from the defendants until his solicitor’s letter of 18th November 2015; and he was paid on 1st December 2015 because, his solicitor reminded them that he was still their staff.

    The claimant further replied that, nobody informed him of the DR or notified him in any manner and; that, the defendants did not call any of his numbers until he wrote the petition of 18th November 2015; after which they called him on phone and despatched the letter. The claimant further pleaded that, disciplinary procedure was not followed and; that, his dismissal was actuated by malice. That ends the Reply. I move to the proceedings before the Court.  

     

     

     

    SUMMARY OF PROCEEDINGS

    The matter first came up before His Lordship I.J. Essien, PhD on 20th March 2018, on which date, leave was granted the defendants to file Amended Statement of Defence. It thereafter came up before me on the 22nd January 2019, on which date, the matter was adjourned to 19th March 2019 for hearing. On this date, the Reply of the claimant to the Amended Statement of Defence was deemed properly filed and served and the matter adjourned for definite hearing. As adjourned, the case was opened on 17th June 2019 with CW1. After the initial preliminaries, CW1 adopted his written deposition of 19/12/2017. With the consent of the learned counsel to the defence, application to correct typo on paragraph 5 of the written deposition was granted and the date “1st April 2012” was changed to ‘19th April 2012’. Thereafter, CW1 tendered four exhibits marked CA, CB, CC and CD, and they were all admitted without objection. Thereafter, the case proceeded on cross-examination.

    Under cross-examination, the claimant admitted he spent less than a year in his previous employment. The claimant admitted that, though, no-accident allowance is contained in his letter of appointment, the defendants used to give the drivers who had no accidents the bonus, half yearly and at the end of the year. CW1 said cash-in-transit driver conveys cash in transit for the banks in bullion vans. CW1 agreed too, that, his duty is an essential duty. CW1 said it was not true that he did not work between February-November 2015 because, they assembled in the morning for instruction on available work to do and; that, he was on standby. He stated that, he was not the only driver and; that, cash-in-transit is daily, except weekends. He said despite the fact that the 1st defendant was on business throughout the 10 months, he was asked to be on standby and; that, he had no medical certificate of unfitness for the period. The cross-examination was brought to an end at this stage and the case was adjourned to the following day for continuation.

    On this date, learned counsel to the claimant closed their case without re-examination and the defence opened with DW1. After the initial preliminaries, DW1 adopted the written deposition deposed 19th June 2018. DW1 tendered two documents on this date and they were marked D1 and D2 respectively. Exhibit D2 was admitted after prolong arguments resulting in insinuative misrepresentations on which the learned counsel to the defendant was nearly cited for contempt. Thereafter, the case was adjourned for continuation of defence. On the adjourned date, the matter could not go on and it was adjourned on terms, at which date it could not still go on, but eventually came up on 23rd March 2020.

    On 23rd March 2020, the matter could not go on yet, at the instance of the defence and was adjourned to the 26th May 2020. But it eventually came up 14th October 2020 due to the countrywide COVID-19 Lockdown. On this date, Exhibit D3 was admitted on objection. Later, Exhibits D4 and D5 were admitted without objection and the testimony brought to an end and the case adjourned to 21st October 2020 for cross-examination. On this date, DW1 was mistakenly recorded as DW2 towards the end of the proceedings of that day, even though recorded correctly at the beginning of the proceedings of that day; and the mistake was carried over to 14/10/2020 and 21/10/2020 when DW1 was cross-examined.

    Under cross-examination, DW1 agreed that, his evidence was based on the review of records of the 1st defendant but, said Exhibit D1 was prepared on 12th January 2015 after the offence. However, DW1 agreed the 4th offence took place 13th January 2015, but disagreed that it was prepared with malice because, the claimant left with the key of the Hilux instead of dropping it to avoid compromise. DW1 admitted that he relied on Exhibit D4 as the record of proceedings of the disciplinary committee, but said Exhibit D5 was filled 15th January 2015.

    DW1 agreed that, 4 persons represented the 1st defendant, while the claimant was not represented by anybody, but added that; the 4 persons constitute the standard procedure of the company. He further added that, because, the people that were supposed to represent the claimant were on the field working, they were put on conference phone.  DW1 said the claimant made oral representation before the disciplinary committee, but later said he was initially given a form to fill, in response to the request to show to the Court the record of the oral representation. DW1 added that, when the claimant came in, he was asked to make oral reference to review again what he had written. DW1 admitted he did not participate in the proceedings, but that, that was the standard operational procedure of the company. DW1 refused to answer the question on the number of offence with which the claimant was charged, but merely said the offences were there listed on the form [Exhibit D1]. DW1 however agreed that, the claimant was found guilty of five offences on Exhibit D5. DW1 said the claimant was given opportunity to give mitigating factors, but reacted to the question, whether this was recorded, by stating that, he had said he was given opportunity in the panel, but that, the oral opportunity was not in black and white.

    DW1 reacted to the question that, at Column 31 of Exhibit D5, two boxes were not ticked, implying that, the claimant was not given the opportunity to appeal against the sanction given him, that the recommended sanction of dismissal was ticked amongst the four boxes. On examination of the Form instant, I recorded that, ‘dismissal’ at the 3rd box was ticked and, showed it to the learned counsel to the parties, but the learned cross-examiner retorted that, he was referring to No 30 and not 32, while DW1 was talking about box 32 and not 30. Thereafter, the Court directed that the learned cross-examiner put his question again and he then asked, from No. 31 and the boxes there, it was correct to say, the claimant was not given opportunity to appeal against the sanction already given him. DW1 replied that, it was indicated in the box that he was given the right, and to the further question, where it was indicated, DW1 answered that, it was indicated in the box where it was written ‘yes’ the accused was given the right to appeal. I immediately examined the form and observed that, both the boxes ‘yes’ and ‘no’ were not marked at Column 31 and ordered it shown to both counsel and the learned defence counsel agreed none was marked.

    The cross-examination thereafter continued. DW1 answered that, though, it was not indicated in Exhibit D5 at Column 20 that the claimant was given opportunity to cross-examine the 1st defendant’s witnesses but that, he was given. DW1 admitted that, the claimant was never given any query or warning, apart from the instant one. DW1 admitted that, in accordance with No. 33 of Exhibit D5, it was the Branch Manager that had the duty to hand the claimant the disciplinary action report together with the letter of dismissal and that, the claimant was verbally instructed to proceed to the 1st defendant’s HRD for the letter of dismissal. DW1 said ‘Standby or Standoff’ is for a period not exceeding one-month. DW1 said, too, that, the claimant was informed of his dismissal. DW1 said Exhibits D4 and D5 were filled by the claimant in accordance with the standard procedure whereby, after the outcome of the hearing, he would be given the papers to read and sign, without force.

    At this point, I noted in writing immediately that, the DW1 always refused to answer important questions. DW1 said, in reaction to proof that the letter of dismissal was taken to the residence of the claimant that, the 1st defendant used its Hilux for the delivery. At this stage, the Court brought the re-examination to a close for being out of time and the learned defence counsel closed the defence. The error of recording DW1 as DW2 was corrected at this stage; and the case adjourned to 9th December 2020 for adoption of final written addresses. On this date, the final written address of the defendant was regularised and the case adjourned to 18th January 2021 for adoption. The case was further adjourned to 1st February 2021 on this date because, the defence asked for date to reply. On 1st February 2021, the defence counsel failed to turn up and was foreclosed, while their final written address was deemed adopted and the learned counsel to the claimant proceeded to adopt the final written address of the claimant. The case was thereafter adjourned to 16th February 2021 for judgment. That ends summary of the proceedings. I move to summary of the final written addresses.

     

    SUMMARY OF THE FINAL WRITTEN ADDRESSES

    A: Defendants’ Address

    M.C. AKAREKWE franked the defendants’ final written address and formulated three issues, to wit:

    1.     Having failed to plead any factual activity against the 2nd and 3rd Defendants, can this action be maintained against either individual?

    2.     Was the Claimant’s employment properly terminated by his infraction on 13 January 2015 and for taking home the only key of 1st Defendant’s essential vehicle on 12 January 2015?

    3.     Is the Claimant entitled to damages sought in the absence of liability and absence of proof of any damage by the Claimant?

     

    Arguing issue 1, the learned counsel said claimant had not pleaded the factual basis or led any evidence for joining the 2nd and 3rd defendants; and that, as such, cause of action was not disclosed against them. The learned counsel cited Diamond Bank v. Mocok Onu (Nig) Ltd (2019) LPELR-4644 (CA) and Veralam Holdings Ltd v. Galba Ltd & Anor (2014) LPELR-22671 (CA) and urged the Court to strike out their names. That ends issue 1. I move to issue 2.

    Under issue 2, the learned counsel argued that, the claimant was rightly terminated for taking the 1st defendant’s key away on 12/01/2015 and for his refusal to come to work the following day, in spite of knowing the importance of the key. The erudite counsel submitted that, the claimant admitted these offences. The learned counsel submitted that, the claimant had not been able to prove that his employment was wrongly terminated and cited Oak Pensions Ltd & Ors v. Olayinka (2017) LPELR-43207 (CA). The erudite lawyer argued that, the 1st defendant paid the claimant one-month salary in Exhibit CD in lieu of notice. The learned counsel submitted that, a study of the claimant’s pleadings and evidence showed that, he conceded that his employment was rightly terminated but only challenged the effective date. The learned counsel argued that, the effective date of termination was January 2015 and placed reliance on Exhibit D4, on which he said, the claimant appended his signature to the indictment of dismissal after it was communicated to him. The learned counsel argued that, the claimant also refused to collect his termination letter at the designated place and that, all efforts made to serve him proved abortive. The argument was brought to an end on issue 2; and the learned counsel moved to issue 3.

    Under issue 3, the learned counsel argued that, since the claimant failed to prove any breach of contract, he is not entitled to the reliefs claimed. The erudite counsel cited Stag Engineering Company Ltd v. Sabalco Nigeria Ltd & Anor (2008) LPELR-8485 (CA) and urged the Court to dismiss the suit because, it is baseless. That ends the defendants’ address. I move to that of the claimant.

     

    B: Claimant’s Final Written Address

    C.G. OGO franked the defendants’ final written address. The erudite lawyer submitted three issues for the determination of the case. They are:

    1.     Whether The Claimant Was In The Employment Of The Defendants From February 2015 To November 2015 While He Was Served With Exhibit CC. [sic]

    2.     Whether In The Circumstances Of This Case, The Claimant Was Given Fair Hearing By The Defendants’ Disciplinary Committee. [sic]

    3.     Whether The Claimant Discharged The Burden Of Proof On Him To Entitle Him With The Grant Of Reliefs Sought In His Claim. [sic]

     

    In respect of issue 1, the learned counsel was of the view that, by virtue of Exhibits CA, CB, CC, and the oral testimony, the claimant was in the employment of the defendants from February 2015 to November 30 2015, when he was served with termination letter [Exhibit CC]. The learned counsel cited Obanye v. Union Bank (2018) LPELR-44702 (SC). The learned counsel argued that, the contract could only be terminated by one-month notice or salary in lieu thereof. The learned counsel argued that, the defendants only backdated Exhibit CC to give the impression that it was prepared January 20, 2015. The learned counsel was of the view that, the defendants’ claimed that, the effective date of termination was January 2015 when the disciplinary committee’s decision was communicated to the claimant and he signed accordingly and that the claimant was directed to collect his termination letter from the 1st defendant’s Human Resource Department in Lagos, were denied by the claimant, when he stated that no decision was written on Exhibit D4 when it was issued him and he signed. He referred to paragraphs 14, 15, and 16 of the Amended Statement of Defence and Exhibit D4 and paragraph 12 of the Reply of the claimant.

    The learned counsel argued further that, the claimant debunked the assertion that the claimant was directed to collect his termination letter in Lagos when under cross-examination, DW1 admitted under cross-examination that, it was the duty of the Branch Manager of the 1st defendant to serve the culprit with both the letter of termination and the disciplinary action report. The learned counsel was of the view that, since DW1 was not present at the meeting of the disciplinary committee, he was not in a position to give evidence that the claimant was orally asked to go to Lagos to collect the termination letter. The learned counsel argued that, the evidence of DW1 was based on review of the 1st defendant’s record, which contained no evidence of such instruction. The learned counsel argued that, DW1 could not use oral evidence to vary the contents of the 1st defendant’s documentary evidence and cited Anyanwu & Ors v. Uzowuaka & Ors (2009) LPELR-515 (SC).

    The learned counsel argued that, on the other hand, the claimant gave evidence that, the disciplinary committee directed him to wait for further directive, which meant he was to be on standby; and that, the DW1 admitted under cross-examination that, the 1st defendant has a standby policy, but with a caveat that standby must not go beyond one month. The learned counsel argued that, the burden to prove that standby must not last than a month is on the defence who asserted it, and cited section 135-137, of a statute not mentioned, but which I take to mean the Evidence Act and Onah v. Okenwa (2010) LPELR-4781 (CA). The learned counsel argued that, it is clear that, it was the letter of the claimant’s solicitor to the 1st defendant that jolted them to the realization that, the claimant was still on standby, which omission they tried to rectify by the issuance of backdated letter [Exhibit CC], served on the claimant November 30, 2015.

    The learned counsel cited WAEC v. Oshionobe (2006) LPELR-7739 (CA) on the effective date of resignation and argued that, termination could not be made to take retroactive effect and cited Underwater Engineering Company Ltd & Anor v. Dubefon (1995) LPELR-3379 (SC) and other cases. The learned counsel argued that, the claimant could not be said to have been sacked without notification; and that, as such, his employment subsisted till 30th November 2015 when he received the termination letter. The learned counsel argued further that, the assertions that the defendants tried unsuccessfully to serve the claimant could not hold because, the claimant pleaded contrarily in paragraph 16 of his Reply that, nobody called him on phone. The learned counsel argued that, had Exhibit CC been alive at the purported date, the defendant would have served the claimant via its Branch Manager at Umuahia Branch as provided in Exhibit D5.

    The learned counsel argued further that, the 1st defendant failed to prove non-receipt of termination letter [Exhibit CC]. The learned counsel argued that, the fact that the defendants did not pay into the claimant’s salary account the salary in lieu of notice showed that, they did not terminate the claimant in January 2015 as claimed. The learned counsel argued that, the claimant could not have known that he was dismissed by signing Exhibit D4 because, he gave evidence that, it had already been filled without been allowed to read it before he signed. The erudite counsel submitted that, Exhibit D4 could not have terminated the employment of the claimant as it did not comply with the procedure of terminating the claimant but merely a recommendation of the disciplinary committee subject to appeal; as clearly stated on the form. The learned counsel proceeded to cite Anaja v. UBA PLC (2010) LPELR-3769 (CA) and other cases on conditions of service being sacrosanct in termination. There ended arguments on issue 1 and the learned counsel moved to issue 2.

    Under issue 2, the learned counsel argued that, Exhibit D4 showed that the claimant was dismissed for gross negligence and; that, the law is that, in dismissing on ground of misconduct; the dismissed employee must be afforded fair hearing. The learned counsel cited Federal University of Technology Yola v. Maiwuya & Ors (2010) LPELR-9001 (CA). The learned counsel argued that, the disciplinary committee did not sit, let alone give the claimant fair hearing. The learned counsel argued that, while DW1 was not a member of the disciplinary committee or present when it purportedly sat, the defence relied on Exhibits D4 and D5 to prove that the disciplinary committee sat and gave the claimant fair hearing. The learned counsel argued that, a close perusal of Exhibit D5 shows that, the committee did not sit because of inconsistencies contained in it. The learned counsel said Exhibit D5 showed it was dated 15th January 2015 and marked the same day. The learned counsel referred to paragraph 13 of the Amended Statement of Defence. The learned counsel argued that, DW1 also agreed under cross-examination that, Exhibit D5 was filled 15th January 2015. The learned counsel argued that, whereas, the written deposition of DW1 claimed the committee sat 16th January 2015. The learned counsel referred to paragraphs 11 and 13 of the Amended Statement of Defence and 13 and 15 of the written deposition.

    The erudite lawyer submitted that, because the evidence of DW1 was inconsistent, it ought not to be believed and cited Fubara & Anor v. INEC & Anor (2009) LPELR-4176 (CA). The learned counsel cited as another example of unreliability of the evidence of DW1 when, under cross-examination, he first stated that the claimant was given opportunity to give extenuating evidence, but later stated that this opportunity was not recorded in black and white but orally. The learned counsel argued further on the issue of inconsistency of the evidence of DW1 that, he insisted against clear absence on Exhibit D5 that the claimant was given opportunity to appeal and that the claimant was equally given the right to question defendants’ witnesses despite the fact that, it was not so recorded. The learned counsel argued that, DW1 had meanwhile agreed that he was not present during the sitting of the committee and only relied on Exhibit D5; and submitted that, oral cannot be made to contradict Exhibit D5. The learned counsel argued that, whereas Exhibit D5 did not record guilty or not guilty.

    The learned counsel argued that, as against four offences with which the claimant was charged in Exhibit D1 prepared January 12, 2015, he was found guilty of five in Exhibit D5 and these offences were not stated. The learned counsel argued that this showed that, Exhibit D5 was filled without hearing from the claimant, leading to the inherent contradictions, which contradicted the evidence of DW1. The learned counsel cited Federal University of Technology Yaba v. Maiwuya & Ors (2010) LPELR-9001 (CA) and others on the need for fair hearing and the prerequisites of fair termination, which he submitted, the defendants failed to observe. He argued that, the claimant was not informed of his right to appeal in spite of the fact that, Exhibit D5 provide for this. The learned counsel submitted that, since the rules of fair hearing were breached in the trial of the claimant, the decision is not binding on him. The learned counsel cited Onyekwuluje v. Benue State Govt (2015) 16 NWLR (Pt. 1484) 40, and signed off issue 2.

    Under issue 3, the learned counsel argued that, the claimant had proved his case as required by law and; that, facts that are not denied are deemed admitted. The learned counsel cited Udo v. Dan & Anor (2018) LPELR-4415 (CA) and Federal Board of Internal Revenue v. Integrated Data Services Ltd (2009) ALL FWLR (Pt. 490) 788 at 810. The learned counsel cited Bodi V. Agyo (2003) 4 FR 44 at 66 on proof of special damages and that the claimant tendered Exhibit CA to justify entitlement of the claimant to the special damages claimed in paragraph 2(a)-(e) of his pleadings. The learned counsel argued that, the law has changed and that now, a wrongfully terminated employee is entitled to general damages in line with international best practices in labour and industrial relations in line with section 254C(1) of the 1999 Constitution and section 7(6) of the National Industrial Court Act [NICA] and cited Court of Appeal’s decision in Suit No. CA/L/1091/2016 – Sahara Energy Resources Limited v. Oyebola [delivered December 3, 2020) and British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311, 276 at 288, to the effect that, once termination is based on unproved malpractice, since it carries with it a stigma, the damages must go beyond salary in lieu of notice and must be substantial.

    The learned counsel argued that, since the claimant had been tainted with truancy and as undedicated employee, he is entitled to general damages as claimed in paragraph 2(f) of his claims. The learned counsel argued that, the claimant need not prove entitlement to general damages and cited Ibrahim & Ors v. Obaje (2017) LPELR-43749 (SC). The learned counsel argued that, general damages is awarded to assuage the wrong or injury suffered and cited Nigerian Agip Oil Co. Ltd v. Akapati & Ors (2018) LPELR-45145 (CA). The learned counsel ended the address by urging the Court to grant the reliefs claimed.

    That ends summary of the final written addresses since the defence did not file Reply on Points of Law. My next duty is the most crucial in judgment writing: Decision of the Court. Here the Court decides the competing claims of the parties. In doing this, the Court is obliged to subscribe to some prerequisites. These I have done. I have carefully summarised the cases, proceedings and evidence of the parties. I am aware that I did not summarise the written depositions of the parties because these are mere repetitions of the pleadings already summarised, but I carefully summarised the cross-examinations. I have also carefully digested the cases of the parties and consulted the focal authorities cited. I have also carried out personal researches on relevant authorities to decide the case. I now go on to the last of my duties, which is to marry the facts of the case to the relevant authorities and come out with findings and, reasoned decision that evokes catharsis. These I shall painstakingly do.

     

    COURT’S DECISION

    I would re-formulate the issues formulated by the learned counsel to the defendants, which I adopt as more accurate in capturing the issues thrown up by the pleadings and evidence. They are:

    1.     Are the 2nd and 3rd defendants necessary parties?

    2.     Did the defendants properly terminate the claimant’s employment?

    3.     When did the termination of the claimant’s employment take effect?

    4.     Is the claimant entitled to the reliefs sought?

     

    I take the issues seriatim. Issue 1 is threshold, but I need not waste time on it. The Court of Appeal has held in relation to the issue in First Bank of Nigeria Plc v. Udoka & Ors (2015) LPELR-25835 (CA) 41-42, F-B that:

    “…any defendant who intends to raise the issue of misjoinder of parties or misjoinder of causes of action has to do so without delay by making an application so that the remedy provided by the rules can be granted. However, the situation would not be allowed to degenerate into using the defect as a technical point upon which the opponents claim will be defeated when the whole case has been heard on its merit.”

     

    The above clearly shows that, issue of misjoinder must be raised timeously to attract the attention of the Court. This issue raised at the address stage is rather too late in the day to be cognized by the Court. Besides, relying on Carlen Nigeria Limited v. University of Jos & Anor (1994) LPELR-832 (SC) 30-32, B-C, where the Supreme Court held that, if an official of a corporate body has powers to take actions that might infringe the rights of others adversely, notwithstanding that the incorporating statute specifically donates the juristic personality in the corporate body itself or in a functionary or organ of the corporate body, such principal official with functions and powers that can infringe the rights of others, is impliedly granted juristic personality by the statute and therefore suable eo-nomine. The 3rd defendant herein, is the Head of the Human Resources and Administration Department [HRD] of the 1st defendant, who is actually in the eye-of-the-storm of the main improprieties in issue in this action, while the 2nd defendant is the Managing Director and Chief Executive Officer of the 1st defendant and therefore, the principal brain and mind of the 1st defendant and therefore, its alter ego. Both the 2nd and 3rd defendants are therefore suable, in line with Carlen Nigeria Limited v. University of Jos & Anor [supra] in their official capacities eo nomine. This would ensure easy enforcement of the decision of the Court against the 1st defendant, so that, if there were any contempt, it would be easy to know the contemnor. I therefore dismiss the objection against their joinder. I move to issues 2 & 3, which I shall treat together.

    I take issues 2 & 3 together because of their inter-connectedness. I think the first thing to be tackled is: Was the appointment terminated in accordance with the terms of the contract? The first term of the contract I would examine is the requirement for one-month salary in lieu of notice – see Clause 12 of the Offer of Employment [Exhibit CA]. I hold straightaway that this term was breached, as salary in lieu of notice was not paid the claimant contemporaneously with the purported date of termination pleaded by the defence. And in saying this I cite Chukwumah V. Shell Petroleum [1993] LPELR – 864 [SC] 28, D – F thus:

    “In my respectful view, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice.”

     

    The above is the ex-cathedral decree of the Nigerian oracle of jurisprudence on the law of payment of salary in lieu of notice. It is common ground between the parties that the one-month salary, which the letter of appointment provided as condition precedent to termination without notice, was NOT paid on the 16th January 2015, which the defendants claimed the claimant’s appointment was terminated. Cheque was issued for the payment 1st December 2015. Meaning that, he was not even paid as at 1st December 2015. But the claimant did not make a case on this. I leave it at that. The purported termination in this manner was clearly wrongful - Chukwumah V. Shell Petroleum [supra] 29, B-C.

    The second condition of employment I would examine is that contained in Exhibit D5 [Procedure: Disciplinary Enquiry] [PDE] at item No. 33 to the effect that, the Branch Manager is the one to hand over to the erring employee Letter of Notice of Dismissal. This term of the contract was also conspicuously breached. It is common ground between the parties that the claimant was not handed the letter of dismissal or termination on the 15/01/2015 or 16/01/2015 by his Branch Manager after the disciplinary committee sitting. The defence pleaded and gave evidence that the claimant was directed to go to the HRD, to collect the letter, thus, making it clear that, the letter of disengagement was not given to the claimant by the Branch Manager as enjoined by the PDE made by the defendants to govern disciplinary proceedings thus, forming an essential part of the conditions of service; and also that, it was not immediately after the sitting of the DC that the claimant got the letter. Now, the claimant denied that he was asked to go to HRD to collect the letter, but that instead, he was asked to await the decision. The defendant disagreed, insisting the claimant was asked to proceed to the HRD to collect the disengagement letter.

    This termination letter was eventually issued personally by Paula Ohiwerie (Mrs.), the Head, Admin & HR [HRD] and served on the claimant in Lagos. It shows clearly the DC had no power to sack any employee but, only to make recommendation for onward transmission to Lagos, since the Head, HRD was in Lagos, for HRD’s final decision, and upon HRD’s decision, it is transmitted back to the concerned branch for service on the affected employee; meaning, in the interval, the affected employee must either continue his work or be ordered to proceed on standby/standoff/suspension. And the claimant was on standby for more than nine months before the defendants remembered to end his employment at the promptings of the letter from the claimant’s solicitor. It is this unsavory scenario that the defendants are trying unsuccessfully to cover up by giving the false evidence that the claimant was asked to proceed to HRD in Lagos for the letter and computation of his financial benefits.

    How plausible is it to claim that a person was sacked in Umuahia, Abia State and asked to proceed to Lagos to collect the sack letter! It is in this sense that the further false evidence of DW1 that, the 1st defendant made fruitless efforts to serve the claimant the termination letter in his known address in Lagos, must be understood, as plainly false and contradictory to the assertion that the claimant was asked to go collect the letter. The claimant duty-post was in Umuahia and the defendants went to Lagos to serve him! The fact that the claimant had a right of appeal against the recommendation of dismissal or of the DC within 48 hours of the recommendation, shows that, his letter of dismissal could not have been issued on 16th January 2015 because; he would have to appeal to the HRD in Lagos and not the DC in Port Harcourt – see Item No. 31 of the PDE – and the appeal transmitted to Lagos together with the record and; the decision on it would have to come back to his branch again, for dissemination to the claimant.

    Is it not strange that the defendants, who claimed to have determined the employment of the claimant since January 2015 failed to pay the claimant’s one-month salary in lieu of notice till 1st December 2015 when a cheque was issued him? Yet, there is evidence under cross-examination of the claimant that, his salaries used to be paid through bank. This further shows plainly that, there was no letter of termination in existence as at January 16 2015, claimed falsely by the defence. Without contemporaneous payment of salary in lieu of notice or the actual notice, the purported termination is ineffective on the purported date – see SPDC v. Olarawaju [supra]. It would have made better sense to pay the salary in lieu of notice promptly on January 16 2015 than issuance of the letter itself. Only then could it have been probable to contend as the defendants have done herein.  

    The claimant gave uncontradicted evidence under cross-examination that; his salary was paid through bank. It follows that, nothing prevented the defendants from paying the terminal benefits, especially the salary in lieu of notice, contemporaneously with the purported date of termination, through the claimant’s bank account with them; and inform him promptly. This curious omission puts the lie to the claim of the letter of termination being issued in January 2015. The defence that the claimant was asked to proceed to the HRD to collect his termination letter at one breadth and the defence, at another breadth that, the defendants made unsuccessful efforts to serve the claimant this same letter at his house in Lagos amounts to double-speak. They cannot contend it is the duty of the claimant to pursue them for his letter of termination and terminal benefits/salary in lieu of notice and turn round to claim again that; it is their duty to search out the claimant and serve him the same letter they earlier claimed it was the claimant’s duty to pursue them to collect. They must be consistent in their defence – see Polak Investment and Leasing Company Limited v. Sterling Capital Market Limited (2018) LPELR-46830 (CA) 66-67, F-B. That is what happens when a person is trying to defend the indefensible.

    The defence equally failed to call the witness who allegedly went to serve the claimant in his Lagos house and purportedly returned to say he, claimant could not be found and neither did they tender the call logs to show the alleged unsuccessful calls. They did not provide any further proof than the hearsay or cooked-up evidence of DW1. It is squarely the duty of the employer, the defendants in this case, to deliver the letter of disengagement to the employee being disengaged, the claimant in the instant case, while the employee [claimant] has the duty to serve the defendant [employer] with letter of resignation, if he wishes to resign, the employer [the defendants herein] equally has the corresponding burden [duty] to serve the employee [the claimant] with the letter of termination – see Clause 12 of the Offer of Employment [Exhibit CA]. Reciprocity is a cardinal principle of contract, and absent herein.

    Further more, the defendants, who had transferred the claimant to their Umuahia Branch in Abia State, as at the time of determination of his employment cannot turn round to say they went to his residence in Lagos to serve him the letter of his disengagement because that was the address he gave them. This evidence marks out the defendants as unconscionable and lacking professionalism in the simple rudiments of employment relations. If they failed to request for the claimant’s residential address when he resumed duty in Umuahia, that is a sad commentary on their professionalism, for which they must take the disadvantage. In any case, the defendants did not even show that they reached out to the Umuahia Branch to serve the claimant. Yet, the conditions of service mandates that an employee to be terminated must be served the disengagement letter in the branch in which he is serving – see Item No. 33 of the PDE. These series of summersaults showed clearly the discomfiture of the defendants at establishing a defence.

    It is plainly inhuman and unconscionable to disengage the claimant in Umuahia and ask him to proceed to Lagos for the disengagement letter. It is also in direct conflict with the condition of service that says, disengaged staff must be served his letter of termination in his branch, which is very consistent with the policy of standby and the facts that, the employment was not and could not have been terminated January 16, 2015 when the DC sat and made its recommendation, which had to be transmitted to HRD in Lagos for its final decision and returned back to the branch where the culprit serves for onward delivery to him. The lie and contradiction in the defence that, a person was sacked in Umuahia and asked to proceed to Lagos for the letter of disengagement are thus, shown to be totally unreasonable and weird. If the employment had been determined January 16 2015 at the disciplinary committee level, the letter of termination subsequently served on the claimant and issued personally by the Head, HRD, would have been issued and served on the claimant pronto, there and then. That it was not so issued and served showed the disciplinary committee had no power to issue it and that it was not issued on that date. The letter of termination itself shows that the Head, HRD, who is in Lagos personally issued the letter.    

    It is clear that the defendants, through their witness, DW1, were economical with truth. I say this because; if the defendants agreed the claimant was asked to proceed to Lagos for collection of his letter of disengagement. It means the defendants agreed too, that, the DC in Port Harcourt had no power to discipline the claimant, but just to try him and make recommendations, subject to the approval of the HRD, and must therefore refer the proceedings and recommendations Lagos for studies and the necessary decision and after the decision, the HRD communicates back the final decision to the branch for service on the affected staff. Would this not take days, if not weeks? I think it would? And it is certain too that, the claimant would have to get back to his house in Umuahia from Port Harcourt, where the DC sat, to prepare to travel to Lagos for collection of his letter of disengagement, calculation of and collection of his financial benefits. Nobody knows when the proceedings were transmitted to Lagos and how long they took to get there and how long too, it took the HRD to study and take its decision to show that, the termination letter was truly issued 16 January 2015.

    The defendants did not give any evidence on all these. The only inference to be drawn is that, these would take time. In the interval, what happens? The claimant must be on standby or suspension as a staff of the 1st defendant, since, he has not been disengaged. Standby is analogous to suspension but seems better, in that, it appears, the employee must be constantly around at short distance or possibly report in office daily on standby for assignment at short notice – see p. 1222 New International Webster’s Comprehensive Dictionary of the English Language (2010 Ed.). It is in this sense that one must situate the evidence of DW1 under cross-examination, admitting 1st defendant has a policy of standby, which only lasts for a month, to give credence to the evidence of the claimant that he was actually asked to be on standby or to await the decision on his trial. The evidence of the claimant as CW1 therefore had more credibility than that of the DW1 for the defence.

    The defendants’ claim that the claimant was served with the notice of the Disciplinary Hearing Report [DHR] – Exhibit D4 – and as such, knew on the 16th January 2015 that he had been dismissed is of no avail because, as it turns out, the letter of disengagement is markedly different from the recommendation or decision contained in the DHR. It is clear too that, the DHR was not letter of dismissal, as it was clearly marked at the segment containing the sanction ‘dismissal’, which was ticked, “Recommended Sanction was”; meaning, the sanction ticked was just a recommendation for approval of a higher authority. It is therefore clear that, the DHR was not a letter of dismissal for gross negligence, which was the recommendation of the DC, but the “Letter of Termination” [Exhibit CC], which gave another reason than “gross negligence” contained in the DHR as the reason for the termination, was the proper instrument of disengagement; and the reason given therein was that, services of the claimant were no longer required. This clearly showed that, the DC did not determine the claimant’s employment.

    The law is that, termination or disengagement takes effect at the receipt of the instrument conveying it – see Advanced Maritime Transport Nigeria Limited v. Ojugboli & Ors (2018) LPELR-46265 (CA) 42-43, C-F; Mobil Producing Nig. Unlt & Anor v. Udo (2008) LPELR-8440 (CA) 51-52, F and Underwater Engineering Company Limited & Anor v. Dubefon (1995) LPELR-3379 (SC) 11-12, D-B. Based on the foregoing, I hold that the effective date of termination of the claimant’s employment was 30th November 2015 when he received the termination letter – see the acknowledgment note at the foot of the Letter of Termination [Exhibit CC]. In the end, I resolve issues 2 & 3 against the defendants and in favour of the claimant. I move to issue 4, which is the last.

    Under issue 4, which relates to the reliefs claimed, I preface my decision with the following authorities – see an unreported decision of this Court, in Suit No. NIC/EN/105/2013 - Enyidede v. Roche Construction Nigeria Limited & Anor  [Delivered at Owerri Division February 10, 2015], His Lordship, Anuwe J., held at p. 18 thereof, relying on the Court of Appeal’s decision in Mobil Producing Nig. Unlimited v. Udo (2008) LPELR-8440 (CA):

    “In this case of MOBIL PRODUCING NIG. UNLTD vs. UDO, it was the opinion of the learned Justices of the Court of Appeal that during suspension, the employment continues to subsist and the employee is entitled to his salaries during the period except there is a condition of service which permits the employer to stay payment during period of suspension. In a contract of employment, there is no implied contractual right on the part of employer to suspend an employee without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract of service between the parties… Further more, whether an employer has power to suspend an employee depends on the terms of the contract of employment. Suspension will be wrongful if the employer has no power to suspend given the contract, in such a case, the employee is entitled to wages he lost by being suspended…

    In this case, there is no evidence before this court [sic] that there is any laid down condition between the parties stating clearly the right of the defendant to suspend the claimant without pay. The defendant did not tender any such document containing such conditions of service. In the absence of such evidence, the consequence is that the defendants did not possess the right under the contract of employment to suspend the claimant indefinitely without pay…

    Without further delay on this issue, it is [sic] has been resolved in this judgment that the claimant remains an employee of the 1st defendant till date, his employment not having been shown to have been terminated. It is also my view that the defendant has not proved that they have the power under the contract and in law to suspend the claimant without pay. Consequently, the claimant is entitled to his monthly salaries from the date of his suspension till the date of this judgment.”

     

    Obviously in the instant case, the defendants have not proved that they had the right to put the claimant on standby or to ask him to proceed to Lagos or any other place to collect his letter of disengagement. They have also failed to adduce any evidence that they have the right to put the claimant on standby without payment of his salaries and allowances in the interim. The above-cited authority therefore catches them. In addition to the above, even though, Nigeria is yet to ratify ILO’s Termination of Employment Convention No. 158 [C158], it is nevertheless certain that, the C158 signposts international best practices with regard to the practices of termination of employment and that; this Court is bound to take cognizance of it, as a guide in determining the fairness of disengagement of workers in fulfillment of its constitutional mandates to eschew unfair labour and employment practices and enthrone international best practices in the world of employment, labour and industrial relations in Nigeria.

    The C158 has standardized the practice of disengagement of workers in employment relations amongst member nations and provided the benchmarks against which this practice is to be measured for validity. The C158 is applicable to all types of employed persons and specifically mandates, amongst others, that, before an employment is terminated, reasonable notice must be given or compensation in lieu thereof paid unless, the termination is for proved misconducts of a nature for which the luxury of notice could not be reasonably expected and; that, the severance benefits must be paid with the termination too – see Articles 1, 11 & 12 of C158 at https://www.ilo.org accessed 07:02am 19/02/2021 and; section 11(6)&(7) of the Labour Act, which went further than the ILO C158 to actually provide that, wages or monetary compensations to which employees are entitled at termination must be paid before the expiry of the period of notice; meaning, where notice is not given, it must be paid contemporaneously with the termination.

    When the 1st defendant admitted it terminated the claimant’s employment and ordered him to proceed to Lagos to collect the letter of termination and terminal benefits, without prompt payment of salary in lieu of notice, it is an admission that, it was in breach of ILO C158 without justifiable reason. It was an admission that it wanted to impose psychological punishment on the claimant and ensure that he did not enjoy the benefits of the payment in lieu of notice. This is more particularly so, when this directive was directly in conflict with the conditions of service as contained in the letter of employment [Exhibit CA] and the PDE [Exhibit D5], which mandates letter of disengagement be given to the disengaged staff by his branch manager. It shows too, the 1st defendant had no regard for the philosophy behind notice or payment in lieu thereof, which is to cushion the effect of termination in the interim before the terminated employee secures another employment.

    This is more so, when the 1st defendant that claimed it disengaged the claimant January 2015 waited till November 2015 to serve him the letter of termination and payment of salary in lieu of notice! It is only reasonable in this circumstance, even without more, to hold that the 1st defendant only terminated the appointment in November 2015. This is in accord with this Court’s double mandates to eschew unfair labour practices and enthrone international best practices in industrial and labour relations in Nigeria. I doubly hold therefore, by virtue of the powers conferred on me under sections 13, 14, 15 and 19(a) of the NICA, 254C – (1)(f) of the 1999 Constitution [as altered] and the unreported decision of the Court of Appeal in Suit No. CA/L/1091/2016 – Sahara Energy Resources Limited v. Oyebola [Delivered December 3, 2020], the locus classicus of the apex court on employment and labour relations in Nigeria that, the claimant remained in the employment of the defendants from January 2015 till November 2015 and therefore entitled to his salaries, allowances and terminal benefits to that point.

    I therefore grant reliefs 1, 2(a)-(b) & (d). I refuse relief 2(c) because; there is no proof that the claimant is entitled to it. The only evidence related is under cross-examination, when asked to provide proof that the claimant was entitled to it, he said, it is not in Exhibit CA [Letter of Employment] but that, it was the practice of the defendant. This is a written contract, which is supposed to cover the major terms of the contract, except if such term is implied or customary. If the term was not written into the contract, but was the standard practice, it ought to have been pleaded before evidence could be led on it to justify grant of claims of special damages based on the practice – see Emirate Airline v. Mekwunye (2014) LPELR-22685 (CA) 49-50, F. As to the claim on standby, of which no documentary evidence is tendered too, I rely on Mobil Producing Nig. Unlt & Anor v. Udo (2008) LPELR-8440 (CA) 74-78, A-B to hold that, it is enough, once the claimant gives evidence of being ordered on standby since 16th January 2015 and it is clear that the claimant was not terminated until, at least 30th November 2015, when he was served with the letter of termination, it becomes the duty of the defendants to adduce evidence of their powers to order the claimant on standby without payment from January 2015 to November 2015; and once they fail, they are liable in law: Mobil Producing Nig. Unlt & Anor v. Udo [supra], where the Court of Appeal held and I quote:

    “…The 1st Appellant did not tender through DW2 any document embodying such conditions [sic] of service. What it amount [sic] to is that the 1st Appellant did not possess the right under the said contract of employment to suspend the Respondent indefinitely without pay…For there to be no pay, it must expressly be expressly stated in the contract agreement of the parties…”

     

    I refuse relief 2(f) because; I observed that the appointment was eventually terminated without given any adverse reason against the claimant. The claimant was not dismissed. So, his prospect of new work is not unduly adversely affected. I do not also see any basis for the accusation of denial of fair hearing that the claimant was not represented by employee’s representative at the trial nor allowed to cross-examine witnesses against him. I say for what: when he, the claimant, admitted the major offences of unlawfully going home with the vehicle keys and absence from duty the following day, but extenuated going unlawfully home with key as a mistake and; that, it is not that he went away with the vehicle, which was parked in the office and; excused his absence from duty the following day, by saying, he was sick from the injury he sustained while pushing his duty-vehicle the previous day, and these pieces of evidence have not been contradicted by the defence, of what use is calling of witnesses or would cross-examination of witnesses be or what is the denial of fair hearing in this situation? I cannot find any, in a situation whereby the claimant could even be lawfully terminated pronto on his admission of going away unlawfully with the Hilux-Keys instead of dropping them in the office, had the proper things been done.  

    More so that the claimant was not dismissed; and the letter of termination did not give any adverse reason for his disengagement. I also do not see the basis of complaint that the claimant signed the DHR without being allowed to read it or that he signed the Staff Record [Exhibit D3] under duress. The claimant has failed to prove by what means he was coerced to sign both documents or by what words he was unduly influenced. He did not deny that he attended the DC sitting. In any case, these documents are not really much relevant to the laws relating to the main gist of the case. The reliefs already granted are fair and adequate compensation for the wrongful termination.  The claimant is not therefore entitled to relief 2(f); and I so hold.

    I hold that the claimant is entitled to a measure of relief 2(g) because; axiomatically, cost follows events – see Divage Health and Sanitary Service Limited & Anor v. Kenuj Investment Limited (2018) LPELR-45975 (CA) 46, A-B. The defendants have, by their needless actions allowed the claimant, a low-ranked staff; to waste his scarce resources in prosecuting a case that was not necessary at all, had the defendants did the right things timeously. I assess the cost at N300,000 [Three Hundred Thousand Naira Only] taking into consideration that, the case was filed more than three years ago. Having got to this stage, the case must be ended.

     

    CONCLUSION

    In ending this case, I order 10% post-judgment interest rate per annum from the date of this judgment till the monetary claims [reliefs] granted are fully liquidated.

    Judgment is accordingly entered.

     

    …………………………..

    HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

    Presiding JUDGE

    ENUGU DIVISION

    NATIONAL INDUSTRIAL COURT OF NIGERIA