IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 10th March 2021 SUIT NO. NICN/LA/433/2019
JULIUS OKORO … CLAIMANT
1. WEST POWER & GAS LIMITED ] … DEFENDANTS
2. EKO ELECTRICITY DISTRIBUTION PLC]
1. By his originating process dated and filed on 23rd August 2019, Claimant claims against Defendants as follows:
b. A declaration that the Defendants were wrong to have acted against the Claimant based on conflicting reports by members of their fact-finding committee.
c. An order of this Honourable Court quashing the finding and decision of the Management of West Power and Gas Limited and Eko Electricity Distribution Company which placed a label of a "criminal" on the Claimant.
d. An order directing the Defendants to withdraw the letters, circulars, memos and record already issued and circulated within the companies, associated companies and contractors wherein the Claimant was labeled a "criminal", particularly the letter of termination dated May 16, 2019 and letter of apology.
e. An order of perpetual injunction restraining the Defendants, their staff, consultants, agents, privies and successors in title from labeling or continuing to label the Claimant a "criminal".
f. The sum of
N15, 000,000.00 against the Defendants as exemplary damages for the emotional stress suffered by the Claimant.
g. The sum of
N6, 000,000.00 being cost and expenses arising out of and incidental to the prosecution of this suit.
h. And such further order or orders that this Honourable Court may deem fit to make in the circumstances.
2. The originating process was served on the 1st and 2nd Defendants on 19th September 2019 and 2nd September 2019 respectively. Thereafter, Defendants entered conditional appearance and filed a statement of defence and accompanying processes on 14th January 2020 together with an application to regularise the processes. The memorandum of conditional appearance and statement of defence and accompanying processes were deemed properly filed and served on 15th January 2020. Trial commenced on 25th February 2020 and was concluded on 19th March 2020. Thereafter, the case was adjourned to 7th May 2020 for adoption of final written addresses, which date fell within the Covid-19 lock down, and subsequently to 16th December 2020. Parties adopted their final written addresses and the matter was set down for judgment.
3. The Claimant was an employee of 1st Defendant seconded to 2nd Defendant as Head, Administration and Services Department, which position he occupied from 3rd July 2017 to 16th May 2019. Following an allegation of sexual harassment of an outsourced staff, Claimant was placed on indefinite suspension on 27th February 2019 and his employment was subsequently terminated by letter dated 16th May 2019. Claimant alleges that the disciplinary committee relied on various controversial reports, including the report by Mr. Omotayo Ayetoba, Exhibits 6 and 14C, made on Saturday, 16th February 2019 which was issued without following the rules of fair hearing. As a result, he claims as per his originating process. Defendants admit some of Claimant’s averments but deny any wrongdoing and liability to Claimant for termination of his employment.
At the trial, Claimant testified for himself and subpoenaed four witnesses who are senior staff of Defendants, and tendered 14 exhibits, marked Exhibits 1 to 14C. Defendants called one witness and tendered 10 exhibits, marked Exhibits D1 to D10.
Issue for determination
4. Defendants formulated two issues for determination in their final written address, to wit:
a. Whether or not the Claimant has made a case for himself to enable him to be entitled to the reliefs sought?
b. Whether this Honourable Court has jurisdiction over claims relating to libel or defamation of character?
Claimant submitted four issues for determination, viz:
a. Whether the Claimant was dismissed or terminated from his employment?
b. Whether the Claimant was accorded fair hearing throughout the entire proceedings leading to the termination of his employment?
c. Whether the 1st Defendant was right or justified to have terminated the employment of the Claimant based on a wrong or faulty decision of the disciplinary committee?
d. Whether the Claimant has suffered loss as a result of the wrong decision returned by the disciplinary committee, including reputation, humiliation, untold hardship and serious present and future economic loss to warrant the award of damages?
The case made out by Claimant in his pleading as highlighted above is that the disciplinary committee relied on various controversial reports, including the report by Mr. Omotayo Ayetoba which was issued without following the rules of fair hearing. This is the fulcrum round which his case revolves. Accordingly, in my respectful view, Claimant’s issue number two is apposite and is adopted with modification. Other issues canvassed by the parties can be subsumed into that one issue, that is:
“Whether the Claimant was accorded fair hearing throughout the proceedings leading to termination of his employment?”
Argument of issue for determination
5. Defendants submit that Claimant has not proved his case to entitle him to judgment on his claims. On the first relief, Defendants cited a plethora of cases including Osakwe v. Nigerian Paper Mill Limited  61 NLLR [Pt. 213] 163 SC and Nwokoma v. First Bank of Nigeria Plc  50 NLLR [Pt. 166] 357 NIC, and argue that Claimant has failed to prove the elements of fair hearing they breached. On relief two, relying on Section 131 of the Evidence Act, 2011 and the case of Ramonu Rufai Apena & Anor v. Oba-Fatai Ailera & Anor  LPELR-23305[SC], Defendants submit that Claimant has not discharged the burden thrust on him to prove what conflicting reports of members of the fact-finding committee Defendants acted on. They referred to the evidence of CW4 in cross examination and noted that the mandate of the fact-finding committee was to find out preliminary facts about the issue reported and not to interview the complainant or Claimant, and after the visit to the Estate the committee submitted its report, Exhibit D8, duly signed by all members of the committee.
On relief three, Defendants referred to Exhibit D1, the letter of termination of employment dated 16th May 2019 and note that Claimant’s employment was terminated for conduct unbecoming of a senior staff, and there is no evidence before the Court that he was labelled a criminal or that his employment was terminated based on any criminality. They contend that where allegations against an employee border on criminality and gross misconduct, the employer reserves the power to sanction him, which is what they did in this case. Reliance was placed on Abba v. JAMB & Anor.  53 NLLR [Pt. 177] 1 CA.
6. Defendants submit that the fourth relief is misconceived for many reasons. First, Claimant did not plead or prove letters, circulars, memo and records issued and circulated within Defendants’ companies, associated companies and contractors wherein he was labelled a “criminal”. Defendants state that as with every other letter written to an individual, a letter of termination is a personal letter issued to the individual concerned. Also, it is ridiculous that Claimant is praying the Court for an order of injunction directing Defendants to withdraw certain “letters, circulars, memos and records” which they allegedly circulated to the public, but did not specifically identify, plead or produce the letters, circulars, memos and records which he wants the Court to act on. They submit that Courts of law do not act in vain or in vacuum but on concrete facts before it on the authority of Mbam v. State  LPELR-40966[CA]; and a party who seeks a mandatory injunction must be specific, precise, and direct on the object of the order sought, rather than leave the Court to speculate on the relief sought. Continuing, Defendants argue that to succeed Claimant must specifically identify and place before the Court the documents he is referring to; and the documents must be specifically pleaded and frontloaded. They also argue that the letter of termination of Claimant’s employment carries no criminal imputation whatsoever; but where it does, the employer can still validly terminate or dismiss the employee even while Police investigation or criminal trial is pending. Reliance was placed on the case of Arinze v. First Bank of Nigeria  5 SC [Pt. 1] 60 amongst others.
7. Defendants state that relief 5 is dependent on the success of reliefs 3 and 4, and is not grantable in this case because Claimant has not successfully proved his case; and perpetual injunction may only be granted where the Claimant has successfully proved his case on the authority of Ogeifo v. Isesele 1 & Ors.  LPELR- 22333 [CA]. The Court was urged to refuse relief 6 because Claimant did not plead or prove the alleged emotional stress he suffered, and damages for emotional stress is a claim for special damages which must be specifically pleaded and proved on the authority of Adenugba v. Okelola  LPELR-8290[CA]. They also argue that emotional stress is a medical and psychological state of mental health, and being a medical condition, it must be proved by relevant documentary evidence, especially a medical report from a qualified medical practitioner, which is not manifest in this case; and the term synonymous with “emotional stress” is “emotional agony”, “mental anguish” or “mental pain” and these must be proved. The case of Federal Mortgage Finance Limited v Hope Offiong Ekpo  2 NWLR [Pt. 856] 100 at 127 was cited to buttress this point. They argue further that exemplary damages is a special specie of damages which requires proof of malice or gross disregard for the law and is not applicable in this case on the authority of Mrs. Folarin Oreka Maiya v. The Incorporated Trustees of Clinton Health Access Initiative, Nigeria & 2Ors.  NLLR [Pt. 76] 110 at 171-172.
Defendants submit that relief 7 must fail because Claimant did not plead or prove facts in support of this claim, and Courts have consistently held that it is wrong and contrary to public policy to grant a party’s cost of litigation or Solicitors’ fees. Reference was made to a number of cases including Nwanji v. Coastal Services Nig. Ltd.  11 NWLR [Pt. 885].
Lastly, Defendants submit that reliefs 3, 4 and 5 are basically claims for libel and defamation over which this Court has no jurisdiction whatsoever. They state that this Court has consistently declined jurisdiction over claims relating to libel or defamation even where same arose in the course of employment. The cases of Lawrence Idemudia v. LASU, Suit No. NICN/LA/08/2009 which ruling was delivered on 28/9/2010, Okeke & 2Ors. v. Union Bank  22 NLLR [Pt. 61] 161 at 183 and Dr. Ayo Akinyemi v Crawford University  22 NLLR [Pt. 61] 90 at 110 were cited in support. The Court was urged to dismiss or strike out the reliefs for want of jurisdiction.
8. Claimant’s response is that he was constructively dismissed having regard to the letter of termination, Exhibits 12 and D1, the proceedings leading to his disengagement and the fact that he was first given an option to resign which he declined and demanded fair hearing leading to the constitution of a disciplinary committee. Reliance was placed on the statement by Oputa, J.S.C., in Olatubosun v. Nigerian Institute of Social and Economic Research Council  3 NWLR [Pt. 80] 25 at 48 that termination of the respondent’s employment in Psychiatric Hospitals Management Board v. Edosa  5 NWLR [Pt. 707] 612 was in effect a dismissal.
On issue two, he notes that each thread of the proceedings leading to termination of his employment was laced with bias, partiality and condemnation even before hearing. Claimant explained that whenever an allegation of denial of fair hearing is made, a reviewing judicial tribunal will look to the entire proceedings and all the facts which were in evidence, and not to the ipse dixit of one of the litigants and urged the Court to so do in this matter noting that the true test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observations, justice has been done in the case. He submits that the right to fair hearing is one of the fundamental rights enshrined in Section 36 of the 1999 Constitution and cannot be waived or even statutorily taken away.
He contends that from the evidence of the witnesses in this case and the pleadings, Defendants had, in the various panels which looked into the allegation of sexual harassment, been remiss in according him any degree of fair hearing. All the documents and proceedings relied on by Defendants to terminate his employment failed the test of fair hearing in that he was advised to resign without first hearing from him, Exhibit 4; Exhibit 6 [14c] was produced almost in the dead of the night on a non-working day, which report was based on gossip and hearsay and tainted by strong bias; Exhibit D8, the report of the fact-finding panel was produced without interviewing him on the ground that it was not within its mandate to interview him. He notes that Exhibit 13 [D3] page 7 last paragraph indicates that the panel heard from the complainant before heading for further investigation, and page 3 point 2 of Exhibit 8 [sic, D8] under “Observations” records that “There was an evidence of communication between the two which includes chats on the said cleaning”, but was not given the benefit of doubt; Exhibits 13 and D3, the complaint which Mr. Kingsley Iwuoha purportedly made on 11th February 2019 is discordant and qualifies as a document made by one who was tele-guided and cannot support the decision reached by the disciplinary committee; Exhibit D4, the report from the MD of JSL Crystalline Services cannot also be relied on because it is based on hearsay; and Exhibit D9 [sic, D10], the report of the disciplinary committee which was produced without giving him the opportunity to cross-examine his accusers.
Continuing, he argues that from the texts of Exhibit 12, the letter of termination of employment, there is no doubt that his employment was terminated because of his alleged attempt to have sexual knowledge of an outsourced staff, which incident occurred in his house on Sunday, and not a misconduct bordering on criminality in the work place. He explained that the fact-finding panel visited the Police station and were informed that there was no criminal report against him. He concedes that an employer can summarily dismiss an employee for gross misconduct where the misconduct approximates to a crime without recourse to Court provided it complies with the constitutional provision on fair hearing and referred to University of Agriculture v. Jack  FWLR [Pt.20] 720 at 745 and Co-operative & Commerce [Nig] Ltd. v. Nwankwo  4 NWLR [Pt.286] 159 at 169-170.
9. Arguing his issue three, Claimant referred to pages 3 to 9 of the report of the disciplinary committee, Exhibit D10, and observed that the committee interviewed 12 witnesses, but none of them gave evidence of alleged sexual harassment or that he sexually harassed the outsourced staff. He also referred to paragraph 1.6 page 7 of Exhibit D9 and notes that there was no criminal complaint against him at the time of Defendants’ investigation, and while a disciplinary committee should be impartial, Defendants had formed a strong motive to disengage him, which is why when the initial effort made on 20th February 2019, Exhibit 6, failed they devised other avenues to attack him. He contends that the committee considered 13 items in determination of the case which are listed on page 2 of Exhibit D9 [sic, Exhibit D10], but none of those items established that he sexually harassed the staff. He submits that it is a cardinal principle of law that an accused person is presumed innocent until he is proved guilty as enshrined in Section 36 of the 1999 Constitution [as amended]. He reviewed the invitation to disciplinary committee, Exhibit 10, and the query, Exhibit 8 and argued that the principle is that no citizen should be put through the rigours of trial unless available evidence points to his complicity in commission of a crime on the authority of Ikomi v. State  3 NWLR [Pt. 28] 340 at 358 and that suspicion, however well placed, does not amount to prima facie evidence. Abacha v. State  7 SCNJ 35 was referred to. He referred to page 1 of Exhibit D9 [sic, Exhibit D10] and further notes that the disciplinary committee had a specific duty to ascertain his level of involvement, if any in the allegation contained in Exhibit D8. He states that the disciplinary committee recommended dismissal which Defendants converted to termination; and submits that an employer is not bound to give reasons for terminating the appointment of its employee, but where it gives a reason for terminating the appointment, the law imposes a duty to establish the reason to the satisfaction of the Court. The cases of Fakuade v. O.A.U.T.H. Complex Management Board  LPELR-1233[SC] and Shell Petroleum Co. Ltd v. Chief Victor Sunday Olarewaju  18 NWLR [Pt. 1118] 1 at 19-20 were cited in support.
10. On whether he suffered loss as a result of the wrong decision by the disciplinary committee, he contends that the wrongful procedure adopted by Defendants and unfair treatment meted to him subjected him to grave and serious present and future economic loss, and where there is a wrong there must be a remedy. He referred to paragraph 3 of his statement on oath and Exhibit 1, which evidence was not controverted; and the cases of Dauda v. Lagos Building Investment Co. Ltd & Ors.  LPELR-4024[CA] 19-20 and Mobil Producing Nigeria Unlimited & Anor. v. Udo Tom Udo  LPELR–8440[CA] 54 and posits that general damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded as it is generally presumed by law; and that the measure of damages in terms of money is a matter for the Judge. He submits that this Court has a discretion to award general and punitive damages against the Defendants and relied on Okwejimnor v. Gbakeji  5 NWLR [Pt.1079] 172. Relying on C.C.C. Construction Nigeria Limited v. Richard Okeke  LPELR-4092[CA] 16, he further argues that the Court can take into account the motive and conduct of the Defendant where it aggravates the injury done to the plaintiff, and this may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. The Court was urged to grant the reliefs as prayed in his complaint.
11. In their reply on points of law, Defendants argue that this case is not one of constructive dismissal noting that constructive dismissal refers to a situation where an employer unilaterally changes material terms and conditions of employment, or otherwise treats an employee in a manner which leaves him with no option than to resign or consider himself sacked. Reliance was placed on the cases of Western Excavating [ECC] Ltd. v. Sharp  1 All ER 713 and Patrick Modilim v. UBA, suit no. NICN/LA/353/2012, judgment delivered on 19th June 2014.
On the issue of fair hearing, Defendants submit that Claimant having been served with a query, Exhibit 8, and given the opportunity to respond to same which he did vide Exhibit 9, the principle of fair hearing has been complied with. They contend that disciplinary proceedings at the work place cannot be equated with a trial requiring examination in chief, cross examination and re-examination. The minimum requirement of fair hearing for disciplinary proceedings at the work place is that the employee must be given an opportunity to respond to allegations against him via query or invitation to disciplinary panel, which requirement has been met in this case. The case of Mr. Anthony Nwakaego v. Inspector General of Police, Suit no. NICN/ABJ/137/2013, judgment delivered on 19th February 2015. On the reason for termination of Claimant’s employment, Defendants posit that Exhibit 12 is clear and unambiguous and should be given its simple and ordinary meaning on the authority of Kanmode & Anor. v. Dino & Ors.  LPELR-8405[CA]. They submit further that the case of Olanrewaju v. Afribank Plc  FWLR [Pt.72] 2008 at 2016 has been overruled in the case of Eze v. Spring Bank Plc  18 NWLR [Pt.1278] 113, and it is no longer the law that where an employee commits acts of gross misconduct which disclose a crime, the employer has to wait for the outcome of prosecution before proceeding to discipline the employee.
On whether Defendants were right to have terminated Claimant’s employment on alleged faulty decision of the disciplinary committee, they submit that the termination of Claimant’s employment is justified and reasons given in the letter are justified, and the disciplinary committee is entitled to observe the demeanour of parties and witnesses it interviewed and make relevant inferences which the Court will not disturb.
On the claim for general damages, they contend that the maxim ubi jus ibi remedium only applies where law and equity provide no remedy, but does not operate to salvage a party who did not plead and prove damages. Continuing, Defendants argue that our labour jurisprudence does not make provision for award of damages for loss of future employment opportunities. The cases of Addis v. Gramaphone Co. Ltd.  AC 488, Shell Petroleum Development Co. Ltd. v. Lawson-Jack  4 NWLR [Pt.545] 249 and Shena Security Company Ltd. v. Afropak [Nig.] Ltd & Ors.  LPELR-3052[SC] were cited in support. Lastly, they posit that general damages has no place in employment cases relying on Mr. Kunle Osisanya v. Afribank Nig. Plc  LPELR-2809[SC] and, in any event, Claimant did not claim for general damages in his complaint and he cannot do so in his final written address on the authority of Akono v. Nigerian Army  LPELR-6810[CA].
Resolution of issue for determination
12. It is now elementary law which requires no citation of authority that he who asserts must prove. See Sections 131 and 132 of the Evidence Act, 2011. The burden of proof in civil cases is on the Claimant who initiated the suit and who must satisfy the Court by relevant and credible evidence that he is entitled to judgment on his claims in view of the circumstances of the case. See Zenon Petroleum & Gas Limited v. Emsee Shipping Line Limited  1 NWLR [Pt. 1758] 553 at 562.
It is equally the law that a Claimant succeeds on the strength of his evidence and not on the weakness of the defence. However, where the evidence adduced by the Defendant supports his case, he will be entitled to the benefit of such evidence and can use it to strengthen his case. See Darma & Ors. v. Mustapha  LPELR-23734[CA] 53-54.
13. The question this Court is called upon to answer is whether the Claimant was accorded fair hearing in the proceedings leading to termination of his employment. In resolving this issue, I have painstakingly read and digested the evidence of the six witnesses and the 24 exhibits tendered by the parties.
It is not in dispute that Claimant was an employee of 1st Defendant on secondment to 2nd Defendant as Head, Admin and Services Department and his employment was terminated sequel to an allegation of sexual harassment of an outsourced staff and recommendation of the disciplinary committee set up by Defendants to ascertain his level of involvement in the allegation and recommend appropriate sanction.
A summary of Claimant’s evidence is that before his disengagement, he was placed on indefinite suspension on 27th February 2019 and faced a disciplinary committee on 28th February 2019 which failed to take a fair view of the facts of the matter, but relied solely on Mr. Omotayo Ayetoba’s report which was issued in breach of the rules of fair hearing; and which report and a report from JSL Crystaline Services Limited, the outsourced service provider [“JSL”], gave different versions of the incident. He states that the report of the complainant to the Police is that he attempted to drug him and seduce him into sodomy before he escaped from his house, while JSL’s report is that he attempted to make the complainant drunk with alcohol suspected to be laced with drugs and attempted to commit sodomy with him. On the other hand, Mr. Omotayo Ayetoba’s report states that he attempted to lure the complainant with money and persuasion, but when that failed, he began to beat the complainant with a view to luring him into the act. In consequence, the complainant was injured, sought help but got none until he managed to escape, and Claimant and the security were arrested. He states that on 20th February 2019, the Chief Human Resources Officer, CW3, and the Company Secretary, CW2, informed him of a report of sexual harassment of an outsourced staff and directed to resign. He refused to resign and by email of 22nd February 2019, Exhibit 5, gave his account of the incident; but prior to the meeting of 20th February 2019 his case had already been concluded based on a report made on 16th February 2019. He was queried on 25th February 2019 which query contains deliberate falsehood and he answered the query on 26th February 2019. Defendants were aware of withdrawal of the case by the complainant, but Defendants and JSL tried to coerce the complainant to resuscitate the case but he refused. They also attempted to influence the Police officers at Ilasan Police station to expunge the withdrawal letter and issue a report indicting him.
It is his case that Defendants found him guilty of a crime and documented it in such a way as to foreclose any opportunity of being gainfully employed. He worked with Fidelity Bank Plc before joining 1st Defendant and had an unblemished record; and his service with 1st Defendant was meritorious as his department was adjudged the best team. He was given a commendation and a plaque, but his appointment was not confirmed notwithstanding the commendations. He maintains that he was not interviewed by any of the teams which visited the Police station and Cromwell Estate. He tendered 14 exhibits. Exhibit 1 is his contract of employment, Exhibit 2 is meritorious award for team performance, Exhibit 3 is corporate services award, Exhibits 4 and 14A are his email correspondence of 20th February 2019 with CW3. Exhibits 5 and 14B are his account of the incident, Exhibits 6 and 14C are Mr. Omotayo Ayetoba’s report to CW3 on the allegation against Claimant. Exhibit 7 is JSL’s Solicitor’s response dated 8th March 2019 to Claimant’s Solicitor’s letter, Exhibit 8 is the query to Claimant and Exhibits 9 and 14D are his answer to the query. Exhibit 10 is invitation to disciplinary committee, Exhibit 11 is letter of interdiction, while Exhibit 12 is the termination letter. Exhibit 13 is the complainant’s report of sexual harassment dated 11th February 2019 to JSL.
During cross examination he admitted inviting the complainant to his house and that no cleaning of his house took place on that day [10th February 2019]. He was shown paragraph 3 page 2 of his answer to query, Exhibit 9, and he admitted paying
N21, 000 for the complainant’s treatment.
14. His second witness, Mrs. Olawonuola Joseph, Chief Legal Officer of the Defendants on subpoena testified that Claimant was accused of sexual offences and appeared before the disciplinary committee, but she is not aware that Claimant appeared before the committee for that reason and did not attend the proceedings of the committee. She admitted seeing Exhibit 4 captioned “option of resignation or termination’’, and reading the disciplinary committee’s report, but could not recall the terms of reference of the committee or the number of persons interviewed, or if Claimant was given an opportunity to cross-examine the witnesses. During cross examination, she said that at the level of the Claimant, the Board of Directors inaugurates the disciplinary committee and appoints its members.
The third Claimant’s witness, Mr. Aik Alenkhe, is the Chief Human Resources Officer of 2nd Defendant on subpoena to tender some documents. He testified that part of his responsibilities is hiring and firing of staff in line with due process and that he was asked to produce documents in respect of this case. These are Claimant’s email to him dated 20th February 2019 and his reply of same date; Claimant’s email dated 22nd February 2019 telling his story; the temporary report on homosexual harassment dated 16th February 2019 and Claimant’s reply to query dated 26th February 2019. These documents were admitted in evidence and marked Exhibits 14A,14B, 14C and 14D respectively.
Fourth Claimant’s witness is Mr. Omotayo Ayetoba, the acting HOD Admin and Services of 2nd Defendant who testified on subpoena that he is aware Claimant is challenging termination of his appointment; and admits authoring Exhibit 14C, report of sexual harassment of an outsourced staff dated 16th February 2019 which was sent at 11.33pm. He confirmed that he works from Monday to Friday and the complainant is a cleaner in Island district which is under his supervision. At the time of writing the report he was the HR Business partner and co-ordinator of Island district. He said in February 2019, the head driver and the cleaners’ supervisor came to his office and reported ‘the issue Kingsley had with one Mr. Julius’, and he escalated the information to his supervisor in Exhibit 14C. He also went with the fact-finding committee to Claimant’s Estate and watched a CCTV footage where he saw Kingsley running and some people were trying to hold him. He admitted that he did not see any glimpse of sexual harassment. He said he was seeing Exhibit 13, complainant’s account of the incident, for the first time and that his report was not predicated on any written report. He explained that he did not interview the complainant and he did not report the case to him. Also, he did not invite Claimant for questioning because he did not have the mandate to do that. He interviewed some people at Claimant’s Estate but could not remember details of what they said, but they reported that the complainant was running and they chased and apprehended him; but did not know what was chasing him. Under cross examination, he said he visited the Estate as a member of a fact-finding committee and their mandate was to find out the preliminary facts about the issue reported and not to interview Claimant. He admitted his committee also visited the Police station where the case was lodged, but did not interview the complainant and Claimant because their mandate was to carry out preliminary findings and not to investigate anybody.
CW5 is Mr. Joseph Biose Onyemanu, a retired Police officer and Defendants’ Head of Group Security Operations. He testified on subpoena that he knows Claimant and complainant and his committee visited Claimant’s Estate and Ilasan Police station with the complainant. At the Estate they interviewed the Estate Manager and CSO. The people they talked to did not know what happened and it was not part of their mandate to interview Claimant; and he is not aware the fact-finding report was submitted after the disciplinary committee had concluded its hearing. Under cross examination, he explained that the fact-finding committee had five members and the complainant accompanied them to Ilasan Police station and scene of the incident because they did not know the two places.
15. Defendants called one witness, Mrs. Ifeoma Ekpe, the HOG [disciplinary action] Human Resources and Corporate Services Department of the 2nd Defendant. A summary of her evidence is that Claimant met with Chief Human Resources Officer and Company Secretary on 20th February 2019, but he was not advised to resign and the officers did not have any authority to do so. It is her evidence that Claimant was invited to face a disciplinary committee by memo dated 27th February 2019, but before the committee hearing he was interdicted and placed on indefinite suspension; and his employment was for a probationary period of six months, but was not confirmed due to performance failures. She explained that Defendants received reports of allegation of sexual harassment and molestation of an outsourced staff from the complainant, his employer and Mr. Omotayo Ayetoba, and handled the issue in line with its policy which requires that such allegation should be investigated and the staff involved accorded fair hearing; but denied that the case against Claimant was concluded on the basis of Mr. Omotayo Ayetoba’s report. The Defendants’ team visited the Police station and Claimant’s Estate as responsible employers to find out the truth about the allegation and only served Claimant a query upon conclusion of the fact-finding committee’s assignment and Claimant answered the query. Defendants found Claimant’s response unsatisfactory and constituted a disciplinary committee, which invited him by memo dated 27th February 2019, and he honoured the invitation and responded to questions asked him. The disciplinary committee in the course of its duty invited other persons including relevant members of staff to appear before it and, on conclusion of hearing, submitted its report to Management. The disciplinary committee found that Claimant did not conduct himself properly in his private relationship with his subordinate, and his indiscretion in his private relationship caused the company serious embarrassment and recommended that he should be dismissed, but Defendants commuted the dismissal to termination. She said the allegation against Claimant caused Defendants embarrassment due to Claimant’s position and the incident took place in an Estate where their customers reside and urged the Court to dismiss the suit in its entirety.
Defendants tendered 10 Exhibits marked as Exhibits D1 to D10. These are termination letter dated 16th May 2019, Chief Human Resources officer’s email dated 19th September 2017 to Claimant captioned “observed performance deficiencies”, handwritten report by complainant dated 11th February 2019, JSL confidential report dated 27th February 2019, Claimant’s email to Chief Human Resources officer dated 22nd February 2019 telling his story, query dated 25th February 2019, Claimant’s answer to query dated 26th February 2019, report of the fact-finding panel, Claimant’s invitation to disciplinary committee dated 27th February 2019 for 28th February 2019 at 3pm, and report of the disciplinary committee.
Under cross examination, the defence witness explained that the disciplinary committee began sitting on 27th February 2019 and Claimant was invited on 28th February 2019 after two people had testified and the committee continued to sit and took testimonies from other people after he had left. Initially she said the committee did not rely on the report of the fact-finding panel in arriving at its conclusion, but later changed her statement when shown page 2ii of the committee’s report. She confirmed that the report of the fact-finding panel was submitted on 18th February 2019, but one of the members who was indisposed when the report was submitted and signed on 13th March 2019 when he resumed; and that Claimant was Head of Admin when an award of excellent performance was given to the department. The witness also confirmed that the complainant’s report was issued on 11th February 2019 but contains narrations of events that happened on 12th and 13th February 2019. She admitted that she was a member of the fact-finding panel, but they did not interview Claimant because it was not part of their mandate. During re-examination, she said the complainant wrote Exhibit D3 and sent it to them.
16. From the totality of the evidence, oral and documentary, the following facts are established:
a. Claimant met with complainant in his apartment on Sunday, 10th February 2019. The initial agreement was that complainant would clean Claimant’s apartment. The cleaning did not take place. Both parties drank wine until late in the evening. See Exhibits 5, 9, 13, 14B, 14D, D3, D4, D5, D7, D8 and D10.
b. Complainant ran out of Claimant’s apartment, was apprehended and manhandled by the Estate security. The complainant alleged that Claimant sexually harassed him, which allegation Claimant vehemently denied. However, there is no explanation for the complainant’s action. How did the friendly visit turn sour? This is a question begging for answer.
c. A case of sexual harassment was reported by complainant against Claimant at Ilasan Police station. Claimant was invited, made a statement, was detained and subsequently released on bail. The case was eventually closed.
d. Defendants received reports of the incident from complainant, JSL and CW4 and set up a fact-finding panel to establish the truth of the allegation. The panel visited Ilasan Police station and Claimant’s Estate and interviewed the Estate Manager, the Chief Security Officer and complainant and at the end of its assignment wrote a report dated 18th February 2019, Exhibit D8. It is clear from the panel’s observations that it relied heavily on complainant’s account of the incident and made no effort to hear from Claimant. See paragraph 11 of defence witness’ statement on oath, Exhibits D8 and D10.
e. A meeting was held by Claimant, CW2 and CW3 on 20th February 2019 in respect of the allegation. He was advised to resign, but he refused and decided to tell his story. See paragraphs 10 and 16 of Claimant’s statement on oath and Exhibits 4, 14A and 5.
f. Claimant was queried on 25th February 2019 and he answered the query on 26th February 2019. Next day, he received an invitation to appear before a disciplinary committee, and by a separate memo he was placed on indefinite suspension. See paragraphs 23, 24 and 25 of Claimant’s statement on oath and Exhibits 8, 9, 10 and 11.
g. Claimant appeared before the disciplinary committee on 28th February 2019 and was heard in his defence. The disciplinary committee interviewed 11 other persons behind Claimant and considered 13 documents including Claimant’s voluntary email of 22nd February 2019, his answer to query and personnel file in his absence. The disciplinary committee’s terms of reference include to ascertain Claimant’s level of involvement in the allegation and recommend appropriate sanctions. The disciplinary committee found Claimant culpable for gross misconduct and recommended his dismissal from service, Exhibit D10.
17. Parties concede that an employer can terminate the employment of an employee for gross misconduct where the misconduct approximates to a crime without recourse to Court provided it complies with the rules of fair hearing. Defendants contend that the rules of fair hearing are complied with when an employee is issued a query, answers the query and made to face a disciplinary committee. Claimant did not challenge the proceedings of the disciplinary committee. His complaint is that the disciplinary committee relied on reports which were issued without affording him fair hearing. What are these reports? They are Exhibits 14C, D4 and D8. Exhibit 14C was authored by CW4 on Saturday, 16th February 2019. It is a personal report and was not decisive. Exhibit Exhibit D4 is the report of JSL, complainant’s employer. Exhibits 14C and D4 are laced with hearsay, but are personal reports of the writers who could not decide on Claimant’s rights.
The third report is Exhibit D8, which is the report of the fact-finding committee. Clearly, the committee was wrong to have interviewed the complainant and persons in Cromwell Estate without interviewing the Claimant. Nonetheless, the committee was a mere fact-finding panel and did not have any power to determine Claimant’s civil rights and obligations. The fact that Claimant was not heard before the reports were written does not amount to denial of his right to fair hearing. See Bisong v. University of Calabar  13 ACELR 78 at 103-104.
Position of the law
18. It is now settled law that an Ad-hoc committee, be it an administrative panel or disciplinary committee, vested with authority to hear and determine a particular issue, and whose decision will affect the civil rights and obligations of another person must comply with the rules of fair hearing. What constitutes fair hearing depends on the circumstances of each case. See Arobieke v. National Electricity Liability Management Company  LPELR-43461[SC] 21.
Put differently, where there is an allegation of misconduct against an employee which may result in some form of punishment or deprivation of some rights or loss of means of livelihood, it is vitally important that he is given an opportunity to defend his conduct. See Olatunbosun v. NISER  3 NWLR [Pt.80] 25 at 52 and Arinze v. First Bank of Nigeria  5 SC [Pt. I] 160 at 170.
To satisfy the rule of fair hearing, the employee must be given adequate notice of the allegation against him to enable him make representations in his defence. See Yusuf v. Union Bank of Nigeria Ltd.  6 NWLR [Pt.457] 632 at 645 and Raji v. Wema Bank Plc  LPELR-41699[CA] 28. It has been held that giving a query to an employee and allowing him to answer the query, and he answers it before a decision is taken satisfies the elementary requirements of fair hearing. See Eze v. Spring Bank Plc  3 ACELR 39 at 61-62 and Imonikhe v. Unity Bank Plc  5 SC [Pt. I] 104 at 135.
Where a disciplinary committee is set up, as in this case, it suffices if the employee is informed of the complaint against him and given an opportunity to exculpate himself. The disciplinary committee may not necessarily adhere to such rules of natural justice as exist in a Court such as examination of witnesses. See Arobieke v. National Electricity Liability Management Company [supra] 23, 32 and Bisong v. University of Calabar [supra] at 105.
It is important to note that withdrawal of the complaint from the Police does not disable the employer from dealing with the alleged misconduct in accordance with the contract of employment. It is settled law that where some elements of gross misconduct have semblance of a crime, the employer can still act under the contract of employment to dismiss or terminate the employment of the employee without waiting for the outcome of any criminal proceedings. See Billie v. Multi-Links Telecommunications Limited  LPELR-41862[CA] 13-15.
19. It is in evidence that Claimant was informed of the allegation against him and given ample opportunity to exculpate himself. See paragraphs 7, 8, 9, 10, 19 and 23 of Claimant’s statement on oath and Exhibits 8 and 9. He subsequently appeared before the disciplinary committee and was heard in his defence, see Exhibits 10 and D10. In these circumstances, it is my candid opinion that the rules of fair hearing have been satisfied.
It is noteworthy that in dealing with the issue of fair hearing, the Court is not concerned with the rightness or otherwise of the decision taken against the employee. The duty of the Court is to examine the procedure adopted in arriving at the decision. Where the procedure complies with basic rules of fair hearing, the decision of the employer will not be struck down on account of minor lapses. It has to be recognised that a disciplinary committee is not a Court, and cannot be expected to conduct its proceedings like a Court. In this case, the Claimant had opportunity to tell his story and did tell his story. The disciplinary committee heard his oral evidence and reviewed his written submissions before arriving at its decision. In the circumstance, the answer to the lone issue is in the affirmative. I hold that the Claimant was accorded fair hearing in the proceedings leading to termination of his employment.
20. This leads me to the reliefs sought by the Claimant. Relief one is a declaration that the Claimant was not given a fair hearing by the management of the Defendants. It is the law that a Claimant who seeks a declaratory relief must prove entitlement to the declaration notwithstanding any admission by the Defendant. See Ilori & Ors. v. Ishola & Anor.  15 NWLR [Pt.1641] 77 at 94. Evidence which will support a legal right must be credible, cogent and convincing. See Ibrahim v. Garki & Anor.  9 NWLR [Pt. 1571] 377 at 390. Fair hearing simply means hear the other side. The overwhelming evidence before the Court is that the Claimant was heard in his defence. See Exhibits 5, 8, 9 and 10. This relief therefore fails.
Relief two seeks a declaration that the Defendants were wrong to have acted against the Claimant based on conflicting reports by members of their fact-finding committee. As rightly argued by Defendants, there is only one report of the fact-finding committee, Exhibit D8, and Claimant did not prove any conflict in that report. Exhibit D8 did not affect his civil rights and obligations, and the fact that he was not interviewed before it was made, and the fact that its account of incident is different from what the complainant, JSL and CW4 reported does not vitiate the decision of the disciplinary committee or render termination of his employment wrong. This claim also fails.
Relief three is for an order of this Honourable Court quashing the finding and decision of the Management of West Power and Gas Limited and Eko Electricity Distribution Company which placed a label of a "criminal" on the Claimant. This claim is ancillary to and dependent on reliefs one and two. The reliefs having failed, this claim must invariably fail. See Mr. Emmanuel Atunka & Anor. v. Undie Aboki & Anor.  LPELR-41199[CA] 11.
The fourth relief is for an order directing the Defendants to withdraw the letters, circulars, memos and record already issued and circulated within the companies, associated companies and contractors wherein the Claimant was labeled a "criminal", particularly the letter of termination dated May 16, 2019 and letter of apology. I adopt my reasoning on relief three above and hold that Claimant has not made out a case for the grant of this relief, and it is consequently refused.
The fifth relief is for an order of perpetual injunction restraining the Defendants, their staff, consultants, agents, privies and successors in title from labeling or continuing to label the Claimant a "criminal". As rightly argued by Defendants, perpetual injunction cannot be granted on speculation or conjecture that the Claimant seems to have proved his case. Perpetual injunction because of its very nature of finality can only be granted if the Claimant has successfully proved his case on the balance of probability. See Ogeifo v. Isesele 1 & Ors. [supra]. Claimant has not proved his case and, accordingly, not entitled to an order of perpetual injunction.
Relief 6 is for the sum of
N15, 000,000.00 against the Defendants as exemplary damages for the emotional stress suffered by the Claimant. Exemplary damages unlike general damages must be proved. See Eliochin [Nigeria] Limited & Ors. v. Mbadiwe  LPELR-1119[SC] 33. There is no pleading and no proof. While the circumstances of termination of Claimant’s employment may affect his opportunity of securing another employment and injure his character, that is not sufficient to award exemplary damages in the absence of proof that termination of his employment is wrongful. This relief fails.
The seventh relief is for the sum of
N6, 000,000.00 being cost and expenses arising out of and incidental to the prosecution of this suit. Cost follows events in litigation and a successful party is entitled to his cost. By Order 55 rule 1 of the Rules of this Court, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. Costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate his losses. The main aim of cost is to indemnify the successful party for his out-of-pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. Some of the factors to consider in awarding cost are filing fees paid, duration of the case, number of witnesses called by the party in victory, the vexatious nature of the action, cost of legal representation, monetary value at the time of incurring the expenses et cetera. See Nigerian Bank for Commerce and Industry & Anor. v. Alfijir [Mining] Nigeria Ltd.  12 SC [pt. II] 109 at 123-124 and Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena  LPELR-8637[CA] 34-35.
Order 55 Rule 5 of the Rules provides that “In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.” Having found that Claimant was accorded fair hearing in the proceedings leading to termination of his employment, it cannot be said that Claimant was put to needless expenses in this proceeding by Defendants. He foisted the expenses on himself and cannot complain. This claim equally fails.
21. Before I conclude, let me briefly deal with Defendants’ issue two. Defendants urged the Court to strike out or dismiss reliefs 3, 4 and 5 on the ground that they are basically claims for libel and defamation over which this Court has no jurisdiction. While this Court has repeatedly refrained from exercising jurisdiction over causes which cannot be resolved using labour rules, it is not correct, as argued by Defendants, that reliefs 3, 4 and 5 are claims for defamation. In my respectful view, the claims attack the decision of the disciplinary committee, and if the Court finds that the procedure leading to termination of Claimant’s employment breached his fundamental right to fair hearing, the invariable order to make is one setting aside the decision of the committee. This issue is, therefore, resolved against the Defendants.
22. In the final analysis, I hold that the Claimant has not proved his case to entitle him to judgment. This suit fails in its entirety and it is hereby dismissed.
I make no order as to costs.
Judgement is entered accordingly.
IKECHI GERALD NWENEKA
Attendance: Parties are present.
Appearances: Paul Onyebi Esq. for the Claimant
Bimbo Atilola Esq. with Abdulazeez Aje Esq., K. H. Yusuf, T. O. Adepate Esq. and Victoria Agomo Esq for the Defendants