In the matter between Elder Peter N. Nwaobiwe and the Incorporated Trustees of Aba Sports Club, Uwa Onwuchekwa, Emeka Nwaekwe; Justice Ibrahim S. Galadima of the Industrial Court of Nigerian, Owerri Division, ruled that:
”Having found that the Claimant’s employment with particularly the 1st Defendant was wrongfully determined or terminated, it follows suit that he is entitled to certain reliefs. The Claimant has prayed for 4 reliefs in this suit. Relief number 2 which is for reinstatement cannot be granted for the obvious reason that an employee cannot and should not be foisted on an unwilling employer more so that the employment relationship between these parties is of a mere master/servant. The Claimant’s relief number 2 is accordingly hereby denied.
Now, giving the facts and evidence of this case which I find to be uncontentious by the way, this Claimant was on the 16/4/2014 served a letter of indefinite suspension without salaries allegedly pending the conclusion of the investigations by the Police. On the 21/7/2014, the 2nd and 3rd Defendants purportedly terminated the Claimant’s employment without him ever been issued a prior query and despite putting in 11 years of service with the 1st Defendant. At the time of his suspension in April 2014, his salary was N53,500.00. This fact remains incontrovertible since it was never challenged by the Defendants. The Claimant seeks for his withheld salaries from April, 2014 till the date of pronouncement of this judgment. This Court shall only award his salaries from April 2014 to July 2014, that is four months’ withheld salaries because as already opined above, his services were terminated wrongfully by the Defendants in July 2014. As such, the Claimant is entitled to the sum of N214,000.00 being his withheld salaries from April 2014 to July 2014 when his employment was wrongfully severed.
With respect to the claim for gratuity and other benefits as allegedly contained in Exhibit “K”, the Claimant is required in law to lead credible evidence justifying the award of such claim. Since gratuity is in the realm of special damages, this Court can only rely on direct evidence establishing how such claims arose and how it is to be determined from the evidence produced before the Court. So far, no particulars of special damages were brought forward and I am therefore not convinced that the Claimant is deserving of this relief. It shall amount to an illegal speculation to simply award an unclaimed sum to him. The same is therefore denied.
As for his entitlement to an award of general damages, I find justifiable cause to award the Claimant damages by reason of the fact that his employment was indeed wrongfully and unjustifiably terminated by the Defendants. Accordingly, giving all the circumstances of this case including the period the Claimant served the Defendants as well as the time spent in this Court litigating this cause, I award the sum of N1,000,000.00 only as damages against the Defendants jointly and or severally.
Finally, for the purpose of clarity with regards to my above findings and for the avoidance of any doubts whatsoever, this Claimant’s cause succeeds in part and the following are the reliefs awarded to him:
1. A declaration that the suspension and subsequent termination of the Claimant’s employment by the Defendants without any just cause is altogether unfair and wrongful;
2. A consequential order converting the purported dismissal of the Claimant, to termination having found that his letter of dismissal referred to Clause 17 of the Employees’ Handbook;
3. A declaration that the Claimant is entitled to his withheld salaries from and including the month of April, 2014 till July, 2014 when his employment with the Defendants was wrongfully terminated at N53,500 per month, that is N214,000.00;
4. The sum of N1,000,000.00 damages as compensation for the willful, unfair and wrongful termination of the Claimant’s employment with the Defendants;
5. The total sum of 2 and 3 above are to be paid to this Claimant within 30 days from the date of pronouncement of this here judgment which sum shall in default of payment, attract a 5% interest per month until it is fully and finally liquidated.
Delivered in Owerri this 16th day of September, 2019.
Hon. Justice Ibrahim Suleiman Galadima,
Presiding Judge,
NICN Owerri Division.
Full Judgement
Dated: 16th September, 2019
SUIT NO: NICN/OW/87/2014
Between:
ELDER PETER N. NWAOBIWE CLAIMANT
AND
1. THE INCORPORATED TRUSTEES OF ABA SPORTS CLUB
2. UWA ONWUCHEKWA DEFENDANTS
3. EMEKA NWAEKWE
REPRESENTATION:
· I.S. Wogu for the Claimant.
· C. A. Obianwu, Esq. For the Defendants.
JUDGMENT:
The Claimant was offered an appointment as an Accountant on the 12/8/2004 by the 1st Defendant, which appointment was later confirmed in writing on the 15/4/2005 with a 5% salary increase. By the time of his purported dismissal, he accordingly earned N53,500.00 per month. The Claimant in the course of performing his duties, accordingly stumbled upon shortages of several crates of drinks from the 1st Defendant’s stock pile. On the 2nd Defendant’s instructions and directives therefore, the Claimant reported the matter to the Police by way of a written petition. The Police in turn, arrested and detained the store keeper along with three other workers. They accordingly admitted and paid for the shortfall but despite this, the Claimant was also arrested and made to pay for some of the alleged missing bottles even though he was not incriminated by the real culprits. Having refused to pay, he was sent on compulsory leave for a month from the 18/3/2014. However, on the 16/4/2014, the 2nd and 3rd Defendants by letter, indefinitely suspended the Claimant without salaries allegedly pending the conclusion of the investigations by the Police. On the 21/7/2014, the 2nd and 3rd Defendants purportedly dismissed the Claimant without him ever been queried and despite putting in 11 years of service with the 1st Defendant.
Therefore, this Claimant, by an amended Statement of facts filed 19th day of May, 2015, seeks the following:
1. A declaration of this Court that the suspension and subsequent dismissal of the Claimant from work by the Defendants without any just cause, is altogether illegal and unlawful;
2. An order of this honorable Court directing the Defendants to reinstate the Claimant to his office since he has not done any thing to warrant his dismissal and pay him his withheld salary arrears from and including the month of April, 2014 to the time of his reinstatement to office, or
3. In the alternative, a declaration that the Claimant is entitled to his withheld salary from and including the month of April, 2014 till judgement, his gratuity including other benefits provided for in the Incorporated Trustees of Aba Sports Club’s Employees’ Handbook and General Conditions of Service and by the Nigerian Labour Law.
4. N20,000,000.00 damages for illegal and unlawful suspension and subsequent dismissal from work by the Defendants.
The Defendants filed a joint Statement of Defense dated the 27/11/2014 but filed on the 11/3/2015. Hearing had initially commenced before my learned brothers Anuwe and Arowosegbe, JJ. However, on the 23/10/2018, trial started de novo before me whereupon the Claimant testified on his behalf and tendered a total of 11 exhibits lettered “A” to “K”. They are as follows:
1. Exhibit A – offer of probationary appointment as accountant dated 12/8/2004;
2. Exhibit B – confirmation of appointment letter dated 15/4/2005;
3. Exhibit C – customer financial statement of account dated 29/1/2014;
4. Exhibit D – demand for report or investigation dated 8/7/2014;
5. Exhibit E – photocopy of handwritten letter dated 12/3/2014;
6. Exhibit F – 2014 annual leave letter dated 17/3/2015;
7. Exhibit G – notice of resumption of duty dated 10/4/2014;
8. Exhibit H – re: notice of resumption of duty dated 16/4/2014;
9. Exhibit I – Dismissal from duty dated 21/7/2014;
10. Exhibit J – Account report by the Claimant dated 14/3/2014;
11. Exhibit K – Aba Sports Club’s Employees Handbook and General Conditions of Service.
On the 4/2/2019, the Defendants cross examined the Claimant who thereafter closed his case. Portions of his testimonies may be referred to in the course of making my findings. On 18/3/2018, the Defendants opened their defense and also called into evidence, the testimony of a sole witness in their behalf. He tendered one exhibit which is a Police Investigation Report dated 21/3/2014. He was consequently, cross examined by the Claimant’s Counsel before the Defense finally closed their case on that same day. Both sides were given required number of days to file and submit their Final Written Addresses and the case was adjourned to 2/7/2019 for adoption. Having adopted their various addresses, the matter was adjourned to today for pronouncement of this here judgment.
DEFENDANTS’ FINAL ADDRESS AND SUBMISSIONS:
The Defendants filed their joint final written address out of time on the 6/5/2019 wherein one issue was raised which is “whether the Claimant is entitled to the reliefs sought?”
It is argued that the Claimant’s employment is regulated by Exhibit “K” tendered by the Claimant himself and that since from Exhibit “K” the employment isn’t one that is statutorily protected, it means the parties’ relationship is one of a master/servant. As such, as seen in the case of NIGERIA AIRWAYS V. GBAJUMO (citation supplied), a relationship of master/servant is characterized by a contract of service which may or may not be under seal, oral or inferred from the conducts of parties and the payment of salary. Defendants’ Counsel is satisfied that by the very nature of this Claimant’s duties with the 1st Defendant, he was required to make stock verifications of the 1st Defendant’s stock piles of assorted drinks. Accordingly, even as admitted by the Claimant, 414 bottles of drinks were found unaccounted for. Accordingly, the Claimant was responsible for the missing bottles because he neglected to state or disclose the “period during which the stock verification had been in arrears. There was no formal stock verification report by the Claimant to his employer to reveal periodic stock status of the 1st Defendant”. The Claimant was therefore negligent and it appeared he concealed missing crates of drinks kept in his custody, argued learned Counsel for the Defendants.
In further justifying why the Claimant was supposedly dismissed by the Defendants, their Counsel, Chukwuma A. Obianwu, Esq. submitted that despite the fact that the Nigeria Breweries wrote a letter dated 29/1/2014 (Exhibit “C”) for the purpose of reconciliation of the 1st Defendant’s customer financial account with them from the period between January 2013 to 15th January, 2014, the Claimant only responded to this letter six months later on 8/7/2014 even though the Claimant had confessed to the fact that he discovered that there were missing crates of drinks since 12/3/2014. Accordingly therefore, since the Claimant had the duty to prepare stock verification reports on daily or weekly basis, he was in neglect of his duties when he failed so to do as required by the terms of his contract of employment. He was therefore suspended and later dismissed by the Defendants because they lacked confidence in him.
Further, that by virtue of the Employees’ Handbook 1993 tendered by the Claimant, paragraph 18 gives the 1st Defendant, power to dismiss an employee. That this Claimant’s dereliction is listed as one of the so many reasons why an employee may be dismissed under paragraph 18 of the said Handbook. As such, the Claimant’s dismissal was in accordance with the provisions of his contract of employment. He cited and relied on the case of AMODU V. AMODE (citation supplied).
Counsel went on to state that the Claimant has not shown why his dismissal from the Defendants’ service was unlawful as according to him, the Claimant did not disclose the particular terms of his conditions of service that were breached or violated by the Defendants. Accordingly, since he failed to plead and lead evidence as required by law on the terms of his employment which were accordingly breached or violated by the Defendants, he has no reasonable right in law upon which this suit can stand. Besides, argued learned counsel further, an employer has the right and power to define what constitutes misconduct which can lead to the termination of a contract of service between him and her employer — See OYEDELE V. IFE UTH (citation supplied). As such an employer cannot be compelled to retain an employee – SAVANNAH BANK V. FAKOKUN (citation supplied)
In conclusion, learned Defendants’ Counsel believes this suit is incompetent and this Court is robbed of the requisite jurisdiction to entertain same because it was filed against an incorporated trusteeship which is a legal person under CAMA. Thus, it was necessary for the Claimant to list the names of those who make up the incorporated trusteeship in this suit. He finally urged this Court to dismiss these claims entirely.
CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:
The Clamant’s final written address was also filed on the 6/5/2019 and within, a sole issue was isolated for determination thus: “whether by preponderance of evidence, the Claimant has not placed credible evidence before this Court as to be entitled to the reliefs sought”.
According to the learned I.S Wogu, the Claimant discharged the burden on him to establish that he was unduly and wrongfully dismissed by the Defendants. That it was proven that one Mr. Israel Emeonye admitted in writing that he — along with other persons (Messrs Edwin Duru, Ejima, and Aaron Ibe,) were responsible for the stolen bottles of drinks which were the properties of the 1st Defendant. This was also a fact which was equally admitted by the Defendants. Accordingly, the Claimant was neither negligent in his duty as an accountant with the 1st Defendant Sport’s Club nor was it established by the Defendant that he was guilty of any misconduct. In fact, that since the Defendants never supplied any particulars of negligence, their claim that the Claimant was negligent must be disbelieved. It was further argued that the allegation of crime is one requiring proof beyond reasonable doubt as such, in the absence of any investigations or judicial pronouncement against the Claimant, there was no justification whatsoever for the Defendants to have dismissed the Claimant. He was also never given a fair hearing before his purported dismissal which is in violation of his basic rights under Section 36 (1) CFRN 1999. Lastly, that the manner for dismissal of an employee as provided for and under Exhibit “K” tendered by the Claimant, was not followed properly by the Defendants. It was learned Counsel’s submission therefore that the Claimant is entitled to all the reliefs sought in their entirety.
COURT’S DECISION:
Having exhaustively gone through what was presented by either side before this Court, I find that the sole issue for determination is as correctly stated by either side which is whether the Claimant is entitled to the reliefs sought by him in this suit?
There is absolutely no doubt in any reasonable Court’s mind that the relationship between the parties here is one of a master/servant and as rightly stated by the Defendants’ Counsel relying on the case of NIGERIA AIRWAYS V. GBAJUMO (1992) 5 NWLR (Pt. 244) Page 735 at 759 paras F – G: “where one party employs another and appoints him to various positions in his establishment, pays him salary and allowances, these acts constitute sufficient facts from which a contract can be inferred”. In any case, these parties do not deny the existent of the fact that the Claimant was duly employed by the Defendants. The only borne of contention is whether the Defendants were right to have dismissed or terminated the Claimant’s employment? Whereas the Defendants argued that the Claimant had not specified how they had violated any terms of the contact of employment with them (from Exhibits “B” and “K”), the Claimant believes that the Defendants ought to have given him the chance to a fair hearing and satisfied him that he acted negligently when 414 bottles of drinks went missing in the 1st Defendant’s store. Accordingly, he was wrongfully dismissed because it was neither proven that he was a thief nor that he was negligent in allowing thieves to cart away those bottles of drinks.
Essentially, in any master/servant relationship, the master reserves the right to dismiss or terminate the relationship with his servant for any or no reasons whatsoever. This is already an established law. As a matter of fact, judicial authorities abound which state that a master doesn’t even need to believe his servant is guilty of a misconduct before he can decide to terminate his relationship with such servant. The only question to determine in such situations is whether the termination or dismissal was indeed done rightly or wrongfully?
In determining this question, resort shall be made to any contract of employment which existed between the parties. In this instant case, the Claimant’s letter of employment (Exhibit “A”) as well as the Employees’ Handbook (Exhibit “K”) are the two documents to refer to in determining the procedure for dismissing or terminating this employee’s employment.
Curiously, in Exhibit “I” tendered by the Claimant, the purported letter of dismissal from duty dated 21st July, 2014 stated that as a result of the Claimant’s unilateral actions while in the services of the club which were adjudged serious gross misconducts with reference to Clause 17 of the Club’s Employees’ Handbook and General Conditions of Service, the Claimant was therefore “dismissed from service”. However, Clause 17 of the said handbook expressly provides that:
“It is fully understood and recognized that the club or the employee may terminate the employment upon giving due notice as follows, without assigning any reasons whatsoever:
A) for daily or weekly rated staff, 1 day, if employment has lasted not less than 15 days and less than 30 days; and 7 days if employment has lasted not less than 30 days;
B) For staff on monthly contracts, one month after completion of the probationary period.
If, at the club’s discretion, the employee is not required to work out his notice, he will receive the appropriate amount of pay in lieu of notice or in the case of the employee terminating the contract, he shall pay the club the appropriate amount of his pay in lieu of notice.”
So, whereas the said Exhibit “I” served on the Claimant is supposedly meant to be a dismissal letter as indicated from its heading on the said letter, the contents of it which directly and expressly refers to Clause 17 of the Employees’ Handbook and General Conditions of Service, indicates that the Defendants in fact and in law, “terminated” the Claimant’s employment. This is because Clause 17 referred to deals with the parties’ rights to terminate the employment unilaterally. The provisions dealing with dismissals generally are contained in Clause 18 of the said Handbook. There is a marked difference between “Dismissal” and “Termination” of employment under our employment laws. Whereas “Termination” gives the parties the right to determine the contract at any time by giving prescribed periods of notice, “Dismissal” on the other hand, is a disciplinary measure which carries no benefits — Per OKORO, J.C.A. (as he then was) (Pp.21-22, Paras. F-A) in UNION BANK OF NIGERIA V. SOARES (2012) LPELR-8018(CA).
In any case, once misconduct is alleged by an employer, the employee must be given a fair hearing before he can be dismissed. A hearing need not precede a termination on the other hand. Termination of an employment need not require cause, good or bad. They need only to be effected in accordance with the contract of employment. Once cause is required or cited, the measure contemplated or implemented is a dismissal — OLATUNBOSUN V NISERC (1988) 3 NWLR (Part 80) 25 where Oputa, JSC pointed out this distinction.
It therefore goes without saying that the burden of establishing that this Claimant was dismissed from his employment lies on the Defendants because they are the ones required to prove the existence and positivity of the fact which they allege and from every indication, the very fact that Exhibit “I” served on the Claimant was never denied by them, this Court is bound to give effect to the document by reading and interpreting the clear and express words contained therein. It is worthy of note to state also that neither do the Defendants’ pleadings nor the Defendants witness’ sworn deposition and testimony in open Court ever aver that Exhibit “I” was meant to be a dismissal letter despite the erroneous reference to Clause 17 of the Employees’ Handbook — It wouldn’t have mattered legally any way since the contents of a written document cannot ordinarily be amended or supplemented by oral testimony. The fact also that the Defendants’ Counsel strenuously argued in his written final address that the Claimant was dismissed for gross misconduct in accordance with Clause 18 cannot amount to evidence worth considering by this Court since Counsel’s arguments, no matter how beautifully couched, cannot and does not amount to evidence worth relying upon by an adjudicator. It is therefore my informed opinion that the Defendants have indeed not established that the Claimant was dismissed in accordance with the provisions of Clause 18 contained in the employees’ handbook tendered as Exhibit “K”. The conclusion obviously is the Claimant’s employment was in fact, wrongfully determined or terminated in the manner it was done and I so find.
Assuming I were to come to a different conclusion that the Defendants dismissed the Claimant in accordance with Clause 18 of the Employees’ Handbook (Exhibit “K”), such dismissal would still have been found to be unjustifiable, wrongful or unfair in the absence of any fair hearing preceding such measure. It is therefore safe to also assume that the Defendants who probably knew this, decided to hood wink the Claimant with the letter of dismissal (Exhibit “I”) but within, referred to Clause 17 of the Handbook which deals with termination of employment.
Having found that the Claimant’s employment with particularly the 1st Defendant was wrongfully determined or terminated, it follows suit that he is entitled to certain reliefs. The Claimant has prayed for 4 reliefs in this suit. Relief number 2 which is for reinstatement cannot be granted for the obvious reason that an employee cannot and should not be foisted on an unwilling employer more so that the employment relationship between these parties is of a mere master/servant. The Claimant’s relief number 2 is accordingly hereby denied.
Now, giving the facts and evidence of this case which I find to be uncontentious by the way, this Claimant was on the 16/4/2014 served a letter of indefinite suspension without salaries allegedly pending the conclusion of the investigations by the Police. On the 21/7/2014, the 2nd and 3rd Defendants purportedly terminated the Claimant’s employment without him ever been issued a prior query and despite putting in 11 years of service with the 1st Defendant. At the time of his suspension in April 2014, his salary was N53,500.00. This fact remains incontrovertible since it was never challenged by the Defendants. The Claimant seeks for his withheld salaries from April, 2014 till the date of pronouncement of this judgment. This Court shall only award his salaries from April 2014 to July 2014, that is four months’ withheld salaries because as already opined above, his services were terminated wrongfully by the Defendants in July 2014. As such, the Claimant is entitled to the sum of N214,000.00 being his withheld salaries from April 2014 to July 2014 when his employment was wrongfully severed.
With respect to the claim for gratuity and other benefits as allegedly contained in Exhibit “K”, the Claimant is required in law to lead credible evidence justifying the award of such claim. Since gratuity is in the realm of special damages, this Court can only rely on direct evidence establishing how such claims arose and how it is to be determined from the evidence produced before the Court. So far, no particulars of special damages were brought forward and I am therefore not convinced that the Claimant is deserving of this relief. It shall amount to an illegal speculation to simply award an unclaimed sum to him. The same is therefore denied.
As for his entitlement to an award of general damages, I find justifiable cause to award the Claimant damages by reason of the fact that his employment was indeed wrongfully and unjustifiably terminated by the Defendants. Accordingly, giving all the circumstances of this case including the period the Claimant served the Defendants as well as the time spent in this Court litigating this cause, I award the sum of N1,000,000.00 only as damages against the Defendants jointly and or severally.
Finally, for the purpose of clarity with regards to my above findings and for the avoidance of any doubts whatsoever, this Claimant’s cause succeeds in part and the following are the reliefs awarded to him:
1. A declaration that the suspension and subsequent termination of the Claimant’s employment by the Defendants without any just cause is altogether unfair and wrongful;
2. A consequential order converting the purported dismissal of the Claimant, to termination having found that his letter of dismissal referred to Clause 17 of the Employees’ Handbook;
3. A declaration that the Claimant is entitled to his withheld salaries from and including the month of April, 2014 till July, 2014 when his employment with the Defendants was wrongfully terminated at N53,500 per month, that is N214,000.00;
4. The sum of N1,000,000.00 damages as compensation for the willful, unfair and wrongful termination of the Claimant’s employment with the Defendants;
5. The total sum of 2 and 3 above are to be paid to this Claimant within 30 days from the date of pronouncement of this here judgment which sum shall in default of payment, attract a 5% interest per month until it is fully and finally liquidated.
Delivered in Owerri this 16th day of September, 2019.
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