IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD
NWENEKA
Date: Wednesday, 25th
June 2025 SUIT NO.
NICN/LA/154/2020
BETWEEN
MR.
EDMUND DURU … CLAIMANT
AND
1. ARIK
AIR LIMITED ] … DEFENDANTS
2. STANBIC IBTC PENSION FUND MANAGERS LTD]
JUDGMENT
1. The Claimant commenced this suit on 25th June 2020. In the
amended statement of facts dated 10th November 2020, the Claimant sought the
following reliefs:
a.
A declaration that the purported
dismissal of the employment of the Claimant as contained in the letter of 26th
August 2015, contravenes the 1st Defendant’s employment manual, and is illegal,
wrongful, unlawful, unconstitutional and therefore void and without any legal
effect.
b.
An order directing the 1st
Defendant to pay the Claimant his salary for the month of the termination of
his employment with the 1st Defendant, to wit: the month of August
2015 in the sum of N215,000.00 [two
hundred and fifteen thousand naira] together with all his emoluments and
retirement entitlements for the Claimant’s seven [7] years and five months of
meritorious service in the employment of the 1st Defendant.
c.
An order directing the 1st
Defendant to pay the Claimant one month’s salary in lieu of one month’s notice
of the termination of his employment with the 1st Defendant, in the sum of N215,000.00 [two hundred and fifteen
thousand naira] as stated in the 1st Defendant’s employment manual.
d.
An order directing the 1st
Defendant to pay to the Claimant the sum of N607,
300.52 [six hundred and seven thousand, three hundred naira and fifty-two kobo]
being pension contributions which the 1st Defendant deducted from the
Claimant’s monthly salary which sum the 1st Defendant fraudulently, unlawfully
and oppressively failed to remit to the 2nd Defendant as it ought to.
e.
An order directing the 1st Defendant to pay to the Claimant the
sum of N1,173,386.85 [one million, one
hundred and seventy-three thousand, three hundred and eighty-six naira,
eighty-five kobo] being the accruable interest on the sum of N607,300.52 [six hundred and seven
thousand, three hundred naira and fifty-two kobo] deducted from the Claimant’s
salary but unremitted to the 2nd Defendant; and 10% interest per annum on the
total judgment sum until same is fully liquidated.
f.
General damages in the sum of N20 million only for the loss of earnings, the psychological and
emotional trauma and for the wrongful termination of the employment of the
Claimant in the Defendant’s employment [sic].
g.
Cost of this action in the sum of N1,000,000.00 [one million naira].
2. Upon receiving the Claimant’s processes,
the 1st and 2nd Defendants entered a conditional appearance and submitted their
statements of defence. The 1st Defendant’s defence processes were deemed
properly filed and served on 4th November 2020. On the same day, the Claimant
was granted leave to amend his General Form of Complaint and accompanying
documents. The 1st Defendant then filed an amended statement of defence. The
trial commenced on 27th April 2022 and concluded on 26th October 2022. The
Claimant testified, tendered 22 exhibits, and was cross-examined by the
Defendants. The 1st Defendant’s witness, Rasheed Lawal, also testified, tendered
10 exhibits, and was cross-examined. The 2nd Defendant’s witness, Maria Theresa
Oladele, testified as well, tendering one exhibit and being cross-examined. Following
these testimonies, the matter was adjourned for the adoption of final written
addresses. The parties exchanged final written addresses, which their counsel
adopted on 29th May 2025,
and the matter was then set down for judgment.
Facts of
the case
3. A brief overview of the case, based on the
statement of facts, indicates that the Claimant, an employee of the 1st
Defendant, was wrongfully dismissed by the 1st Defendant in violation of its
employment manual and the Claimant’s letter of employment. During the
Claimant's employment, the 1st Defendant deducted payments from the Claimant's
salary for a contributory pension. However, after his dismissal, the Claimant
received his statement of account from the 2nd Defendant and discovered that
the 1st Defendant had failed to remit his contributory pension to his
retirement savings account with the 2nd Defendant. As a result of the
dismissal, the Claimant experienced health and financial difficulties. After
recovering, his solicitors contacted the 1st Defendant to address the wrongful
dismissal and requested remedies on his behalf. Although the 1st Defendant
responded, it did not fully admit liability, leading to the filing of this
suit. The parties are now in dispute, with both Defendants acknowledging that
the 1st Defendant did not remit the Claimant’s pension contributions from May
2011 to August 2015 to the 2nd Defendant. However, the 1st Defendant maintains
that the Claimant was dismissed due to a breach of company procedures and
negligence that resulted in revenue loss for the 1st Defendant's business.
Summary of final written addresses
4. Learned counsel for the 2nd Defendant
nominated one issue for determination in the final written address dated and
filed on 9th November 2022:
Whether
the Claimant’s suit discloses a reasonable cause of action against the 2nd
Defendant to make it liable in this suit?
In
addressing the sole issue, the learned counsel referenced several cases,
including A.G., Federation v. A.G., Abia State [2001] 11 NWLR [Pt 725] 507
at 733, Iyeke v. P.T.I. [2019] 2 NWLR [Pt 1656] 217 at 239, and Ojukwu
v. Yar’adua [2009] 12 NWLR [Pt 1154] 50. The counsel argued that to
determine whether the Claimant has disclosed a reasonable cause of action, the
Court should consider all the Claimant’s documents. Upon review, the counsel
asserted that the Claimant failed to establish any cause of action against the
2nd Defendant, which deprives the Court of jurisdiction to hear the case
against the 2nd Defendant. Supporting this position, the counsel cited the
cases of Adetona v. Edet [2004] 15 NWLR [Pt 899] 186 and Thomas v.
Olufosoye [1985] 1 NWLR [Pt 18] 669. The counsel drew attention to
paragraphs 27, 28, 29, 30, and 31 of the amended statement of facts, as well as
paragraphs 3 and 6[i] to [iv] of the 2nd Defendant’s witness sworn statement
and Exhibit DD2; and reiterated that there is no cause of action against the
2nd Defendant because the 1st Defendant admitted to not remitting the
Claimant’s pension contributions from May 2011 to August 2015. Furthermore, the
counsel relied on Section 21[1] of the Evidence Act, 2011, as amended [“the
Evidence Act”], and the case of Bello v. Gov., Gombe State [2016] 8 NWLR [Pt
1514] 219, which supports the legal principle of admission against
interest. This principle permits the use of evidence provided by a witness for
a party other than the one presenting the evidence. Regarding costs and
damages, the counsel argued, citing Antoun & Anor v. Oghene [2012] LPELR
– 8502[CA] 30, that since the actions of the 2nd Defendant did not cause
any harm or damage to the Claimant, the Claimant is not entitled to claim costs
or damages against the 2nd Defendant. The Court was urged to dismiss the suit
against the 2nd Defendant for failure to disclose a reasonable cause of action
and to rule that the Claimant is not entitled to the reliefs sought against the
2nd Defendant.
5. Learned counsel for the 1st Defendant raised
two issues for determination in the final written address dated and filed on
7th December 2022:
a.
Whether having regard to the totality of the
evidence, the summary dismissal of the Claimant is justifiable in the circumstances?
b.
Whether the Claimant is entitled to the reliefs
sought in the statement of facts?
6. In
addressing the first issue, the learned counsel referred to Section 9[7][c] of
the Labour Act, clause 13:3 of Exhibit D2, and the case of A.C.B. Plc v.
Nbisike [1995] 8 NWLR [Pt 416] 725, and defined summary dismissal as the
common law right of an employer to terminate an employee's contract
immediately, without notice or payment in lieu of notice, due to gross
misconduct by the employee that undermines the contract. On the conduct that
could warrant summary dismissal, the counsel referred to some cases including C.
C. B. [Nig.] Ltd v. Nwankwo [1993] 4 NWLR [Pt 286] 159 at 172 and U.B.N.
Plc v. Soares [2012] 11 NWLR [Pt 1312] 550 at 575, clauses 13:3 and 13:4 of
Exhibit D2, and said serious breaches of company procedures and serious
negligence in the performance of duties can lead to summary dismissal. Counsel
detailed the Claimant’s negligence that resulted in dismissal and argued that,
based on Exhibit D2 and the oral and documentary evidence presented to the
Court, the Claimant’s dismissal for acts of gross misconduct, specifically
serious breaches of company procedures and negligence, was justified. Counsel
cited Ahmed v. Abu & Anor [2016] LPELR-40261[CA], and argued that as
long as the rules of natural justice are upheld and reasons for dismissal are
provided, an employee may be summarily dismissed for gross misconduct. The case
of Savannah Bank [Nig.] Plc v. Fakokun [2002] 1 NWLR [Pt 749] 544 at 560
was referenced to support this assertion. Additionally, counsel cited the case
of University of Calabar v. Essien [1996] 10 NWLR [Pt 477] 225 at 263, and
submitted that for the employer to
justify the summary dismissal, it must demonstrate that the
allegations were communicated to the employee, that the employee received a
fair hearing, and that any disciplinary panel adhered to prescribed procedures
while confirming the commission of the act after an investigation. Counsel
argued that these requirements were met in the current case, as evidenced by
Exhibits D6 and D7 and paragraphs 15, 16, and 17 of the Claimant’s sworn statement,
indicating that the Claimant was aware of the allegations against him.
Paragraph 9[xv] of the 1st Defendant’s witness statement also showed that the
Claimant was given a fair hearing. Moreover, counsel drew on Ogunsanya v.
State [2011] 12 NWLR [Pt 1261] 401 at 429, 432, 435 and
437, and contended that the Claimant, who had an opportunity to be accompanied
by a friend or colleague but chose not to, is estopped from claiming a lack of
fair hearing. The allegation that he was deprived of the chance to have a
friend accompany him was lacking in evidence. Counsel maintained that the
Claimant was afforded a fair hearing before his dismissal, as he appeared
before the disciplinary committee under clause 13.5 of Exhibit D2, where he was
allowed to respond to the allegations against him. The case of Imonikhe v.
Unity Bank Plc [2011] 12 NWLR [Pt 1262] 624 at 640, 641 and 648
was cited for further support. Counsel argued that, since the burden of proving
wrongful dismissal lies with the Claimant, he failed to meet this burden,
justifying the dismissal of his case. The case of Keystone Bank Plc v.
Yiggon [2013] LPELR-22131[CA] was referenced in this regard. Additionally,
counsel argued that the Claimant was not a credible witness, highlighting
discrepancies in his testimony during examination-in-chief, cross-examination,
and the evidence in Exhibits D7 and D8. Counsel urged the Court to disregard
the Claimant’s testimony and dismiss the case for lack of credible evidence,
referencing the case of Kayili v. Yilbuk [2015] 7 NWLR [Pt 1457] 26 at 77 for
support.
7. In
addressing the second issue, the learned counsel urged the Court to reject the
Claimant's first claim and affirm that the Claimant's dismissal was justified,
as due process was followed before the dismissal. The counsel referenced
several cases, including Imasa v. Odey [2013] LPELR-21402[CA], University
of Calabar v. Essien [1996] 10 NWLR [Pt 477] 225 at 262, Olatunbosun v.
NISER Council [1988] 3 NWLR [Pt 80] 25, and Yusuf v. Union Bank of
Nigeria [1996] 36 NWLR [Pt 457] 63. Additionally, counsel noted that N30,000 was deducted from the Claimant's
salary for August 2015 due to loss of revenue resulting from the Claimant's
actions. The Court was urged to uphold this deduction, citing Ayoade v.
Military Governor, Ogun State [1993] 8 NWLR [Pt 309] 123. Regarding the
payment of one month's salary in lieu of notice, counsel referred to clauses
13:3 and 15.9 of Exhibit D2, as well as Jirgbagh v. U.B.N Plc [2001] 2 NWLR
[Pt 969] 11 at 31, and argued that an employee who is summarily dismissed
is not entitled to salary in lieu of notice. Counsel further argued that the
Claimant is not entitled to pre-judgment interest on pension contributions due
to a lack of pleading and evidence, citing Ngerem v. Crown Realties Ltd
[2021] 4 NWLR [Pt 1767] 476 at 510 and Julius Berger [Nig.] Plc v.
T.R.C.B. Ltd [2019] 5 NWLR [Pt 1665] 219 at 257. On the matter of damages,
counsel maintained that the issue cannot arise without proof of wrongful
dismissal, referencing Anike v. S.P.D.C.N Ltd [2011] 7 NWLR [Pt 1246] 227 at
244. Regarding general damages, counsel pointed out, based on N.A.B Ltd
v. Shuaibu [1991] 4 NWLR [Pt 186] 450 at 471, that damages cannot be
awarded for loss of earnings, injured feelings, or psychological and emotional
trauma. Counsel also argued that even if the Court assumed that the Claimant's
termination was wrongful, the Claimant should have taken steps to mitigate his
damages, which he failed to do. The case of Denmark Productions Ltd v.
Boscobel Production Ltd [1969] 1 QB 699 was cited in support. On the issue
of costs, counsel referenced Guinness Nig. Plc v. Nwoke [2000] 15 NWLR [Pt
689] 135 at 150, among others, asserting that awarding costs is against
public policy. However, assuming the Court were to grant costs, it was argued
that the Claimant lacked sufficient pleading and proof to warrant such an
award. The cases of Agbalugo & Anor v. Izuakor [2017] LCN/9870[CA]
and KLM Royal Dutch Airlines v. Idehen [2017] LPELR-43575[CA] were cited
in support. The Court was urged to dismiss the claim for costs due to a lack of
evidence.
8. Learned counsel for the Claimant formulated three issues for
determination in the final written address dated and filed on 5th May 2023:
a. Whether
the Claimant’s employment with the 1st Defendant was not wrongfully determined,
entitling the Claimant to the payment of compensation by the 1st Defendant and
one month's salary in lieu of notice?
b. Whether
there is any cogent and reliable evidence before the Honourable Court to the
effect that the Claimant was paid his salary for the month of August 2015?
c. Whether
the 2nd Defendant is a necessary party in this suit and whether the Claimant is
entitled to his pension funds in the hands of and/or held by the 1st and 2nd
Defendants?
9. Addressing
issue one, counsel provided a brief summary of the Claimant’s employment
history. Referring to Exhibits 11 and D1, counsel argued that the Claimant’s
employment was terminated in violation of the employment contract and the 1st Defendant's
employee handbook. Counsel also pointed out that, despite the dismissal being
based on allegations of fraud, the 1st Defendant failed to prove this claim as
required by law, making the dismissal wrongful. Additionally, it was argued
that the 1st Defendant did not allow the Claimant a fair opportunity to defend
himself before a disciplinary panel. There was insufficient notice related to
the disciplinary hearing, along with improper investigation practices and
non-remittance of the Claimant’s pension contributions from May 2011 to August
2015. As a result, the 1st Defendant breached the employment contract and
employee handbook, rendering the Claimant’s termination wrongful. Counsel
further contended that the 1st Defendant, who failed to remit the Claimant's
pension contributions, could not legitimately accuse the Claimant of fraud,
which counsel described as a sham. Furthermore, while an employer in a
master-servant relationship has the right to terminate employment with or
without cause, it is the employer's responsibility to justify the reasons for
dismissal. Otherwise, the termination is deemed wrongful, entitling the
employee to compensation. Therefore, counsel concluded that due to the
Claimant’s unjustified and wrongful dismissal, as well as the failure to serve
notice in accordance with the contract and to pay compensation, the Claimant is
entitled to one month’s salary in lieu of notice. The Court was urged to rule
in favour of the Claimant on this issue.
10. In relation to issue two, the counsel argued
that there is uncontested evidence showing that the Claimant’s salary for
August 2015, amounting to N215,000.00 [two
hundred and fifteen thousand naira], was not paid by the 1st Defendant.
Referring to Section 131 of the Evidence Act, the counsel emphasised that the
burden of proof lies with the 1st Defendant to demonstrate that the salary for
August 2015 was indeed paid. However, the 1st Defendant has failed to meet this
burden, which entitles the Claimant to the owed salary. The counsel urged the
Court to disregard the 1st Defendant's claims regarding this matter. Regarding
issue three, the counsel notes that despite the 2nd Defendant's objection on
the grounds of non-disclosure of cause of action, it filed a statement of defence
acknowledging its role as the Claimant’s pension fund manager. The 2nd Defendant
also confirmed the 1st Defendant’s failure to remit the Claimant’s pension
contributions for five years, which makes the 2nd Defendant a necessary party
in this case. The counsel cited the case of Green v. Green [1987] 7 NWLR [Pt
61] 481 to support this argument. Thus, the counsel asserts that given the
fiduciary duties owed to the Claimant by both Defendants and the outstanding
debts, both the 1st and 2nd Defendants should be regarded as necessary parties.
Furthermore, the counsel argued that the Claimant, likened to a retiree, is
entitled to receive his pension funds along with all accrued interest from the Defendants,
as calculated by the Claimant. The Court was urged to grant the Claimant's
claims and dismiss the Defendants' defences.
11. In
arguing the reply on points of law dated and filed on 1st June 2023, counsel
for the 1st Defendant referenced paragraph 4.11 of the Claimant’s final written
address, as well as Sections 256[1] and 258[1] of the Evidence Act, and the
case of Kowa v. Musa [2006] 5 NWLR [Pt 972] 1 at 34-35, asserting that the
Evidence Act applies only to judicial proceedings and not to the 1st
Defendant's investigation panel. Since this panel is not recognised as a Court,
the provisions of the Evidence Act regarding the burden of proof in criminal
allegations do not apply. The Court was urged to uphold this position. In
response to paragraph 4.12 of the Claimant’s final written address, counsel
referred to Section 36[1] of the 1999 Constitution, along with the cases of L.G.C.
Ltd v. Stanbic IBTC Bank Plc [No. 1] [2022] 14 NWLR [Pt 1851] 505 at 535 and Dangote
Gen. Text. Prod. Ltd v. Hascon Ass. [Nig.] Ltd [2013] 16 NWLR [Pt 1379] 60 at
89, and argued that the Claimant’s stance on the right to a fair hearing is
contrary to legal principles and urged the Court to disregard this claim.
Regarding the Claimant's assertion that the 1st Defendant failed to prove the
payment of the August 2015 salary, counsel argued that the Claimant's admission
of receiving the payment, as shown in Exhibit D8, satisfies the burden of
proof, since facts that are admitted require no further evidence. The Court was
asked to conclude that the Claimant was paid his August 2015 salary, minus N30,000.00, as demonstrated by Exhibit D8,
relying on Ayoade v. Mil. Gov., Ogun State [1993] 8 NWLR [Pt
309] 123. Counsel urged the Court to discountenance the Claimant’s submissions in
his final written address and dismiss the suit with substantial costs.
Preliminary issues
12. The
2nd Defendant contends in paragraph 8 of the witness's sworn statement, as well
as in its final written submission, that the Claimant has failed to disclose
any reasonable cause of action against it. As a result, the 2nd Defendant
argued that it should not be held liable to pay the Claimant any amount, and
urged the Court to dismiss the claim against it. On the other hand, the
Claimant maintains in his third issue for determination that the 2nd Defendant
is a necessary party to the lawsuit. This situation raises the question of
whether there is a reasonable cause of action disclosed against the 2nd
Defendant that would warrant its designation as a necessary party.
13. It is generally the responsibility of the
Claimant to determine the Defendant in a lawsuit as stated in Order 13, Rules
4, 7, and 8 of the National Industrial Court of Nigeria [Civil Procedure] Rules,
2017 [“the Rules”]. To ascertain whether a Defendant is a proper party to the
case, the Court will examine the statement of facts and the reliefs sought, as established
in the case of Ecobank Nigeria Plc v. Metu & Ors [2012] LPELR-20846[CA]
31. For this purpose, the Defendant is considered to admit the Claimant’s
averments in the statement of facts. This is supported by the case of Bello
v. INEC [2010] LPELR-767[SC] 75. Parties in a lawsuit can be classified as
proper parties, desirable parties, or necessary parties. A proper party is
someone who, while not directly interested in the action, is included for valid
reasons. A desirable party has an interest or may be affected by the outcome of
the action, while a necessary party is a person who is not only interested in
the subject matter but whose absence would prevent the fair adjudication of the
proceedings, as outlined in Suru Worldwide Ventures Nigeria Ltd v. Asset
Management Corporation of Nigeria & Ors [2020] 3 NWLR [Pt 1710] 179 at 204.
Order 13, Rule 4 of the Rules allows a Claimant to join as a Defendant any
individual against whom the right to relief is claimed, whether jointly,
severally, or in the alternative. However, it is well established that a
lawsuit cannot be maintained against just anyone. The person being sued must
have committed a legal wrong against the person bringing the suit. The
Claimant's cause of action is a prerequisite for initiating a lawsuit, as seen
in U.O.O. Nigeria Plc v. Okafor & Ors [2020] 11 NWLR [Pt 1736] 409 at
440-441 and Revenue Transparency Project [RETRAP] & Ors v. Edo State
House of Assembly & Ors [2022] LPELR-57774[CA] 28-30. The question of
proper parties is crucial and affects the Court's jurisdiction to decide a
case, as referenced in U.O.O. Nigeria Plc v. Okafor & Ors [supra],
page 438. If the proper party is not present in Court, the Court lacks the
jurisdiction to hear the case. Therefore, for an action to succeed, it must be
demonstrated that the parties involved are the proper entities to whom the
rights and obligations arising from the cause of action can be assigned.
14. A
"cause of action" or "reasonable cause of action" has been
defined in numerous judicial cases. Essentially, a cause of action consists of
every fact that must be proved for the Claimant to succeed in his claim. It
refers to the factual situation that entitles the Claimant to seek a remedy
from the Court against the Defendant. In other words, a cause of action
encompasses the entire set of circumstances that give rise to an enforceable
claim. A cause of action represents the basis of the Claimant’s grievance and
complaint to the Court for redress. For references, see the cases of Thomas
& Ors v. Olufosoye [1986] LPELR-3237[SC] 22-23, Ibrahim v. Osim
[1988] LPELR-1403[SC] 15-16, CIL Risk & Asset Management Limited v.
Ekiti State Government & Ors [2020] 12 NWLR [Pt 1738] 203 at 247, and U.O.O.
Nigeria Plc v. Okafor & Ors [supra] page 438. A "reasonable cause
of action" is one that has a chance of success based solely on the
Claimant's allegations. If the statement of facts indicates some cause of
action or raises questions that the Court can resolve, the fact that the case
may be weak or unlikely to succeed is irrelevant. Refer to Thomas & Ors
v. Olufosoye [supra] pages 23-24 and CIL Risk & Asset Management Limited
v. Ekiti State Government & Ors [supra] pages 247-248. When determining whether a suit presents a
reasonable cause of action, the Claimant’s originating process and the
statement of facts are considered. For this purpose, the Defendant is assumed
to admit the facts stated in the statement of facts. Relevant cases include U.O.O.
Nigeria Plc v. Okafor & Ors [supra] page 438 and Attorney General of
Anambra State v. Attorney General of the Federation [2007] LPELR-24343[SC]
91-92.
15. Applying this principle to the current case, can it be said that
the statement of facts raises questions that this Court should decide against
the 2nd Defendant? I do not believe so. The Claimant’s counsel argued in
paragraphs 6.5 and 6.6 of the Claimant’s final written address that the 2nd Defendant
is a necessary party due to its role in determining whether the funds were
remitted. In doing so, it was confirmed that the 1st Defendant failed to remit
the Claimant’s pension contributions from May 2011 to August 2015. It is
noteworthy that the 1st Defendant's witness admitted in paragraph 11[i] of his
sworn statement that the 1st Defendant defaulted in remitting the Claimant’s
pension contributions from May 2011 to August 2015, as substantiated by Exhibit
13. Therefore, the 2nd Defendant’s witness evidence in this context is merely
corroborative. Additionally, reliefs 5 and 6, which pertain to pension claims,
are directed only against the 1st Defendant. This contradicts the erroneous
argument presented in paragraph 6.8 of the Claimant’s final written address
that both Defendants are indebted to the Claimant for the sums deducted from
the Claimant’s salaries. Despite the 2nd Defendant’s witness providing some
clarifications in paragraph 6 of her sworn statement regarding the credit
balance and interest accrued over the period, as seen in Exhibit DD1, I am
firmly of the opinion that this case can be effectively determined without the 2nd
Defendant. Thus, the 2nd Defendant is not a necessary party to the suit and was
improperly joined.
Was the Claimant defamed?
16. The Claimant testified in paragraphs 34 and 35 of his sworn
statement dated 10th November 2020, that he applied for a job at Azman Air
Limited around 2016 or 2017. This aviation company intended to begin operations
at Port Harcourt International Airport. However, during their background checks
from his previous employment, the Human Resources Department of the 1st Defendant
informed them that he had been dismissed from the 1st Defendant’s employment
due to fraud. As a result, he lost the job opportunity with Azman Air Limited.
The Claimant argued that the 1st Defendant defamed, maligned, and tarnished his
image in the eyes of the public, including his banker, Access Bank Plc, and the
potential employer, Azman Air Limited, among others yet to be identified.
17. Defamation involves written or spoken words that expose an
individual to hatred, ridicule, or contempt, as stated in the case of Ovat
v. Okota & Ors [2021] 4 NWLR [Pt 1765] 101 at 112. To succeed in a defamation
claim, the Claimant must plead verbatim the specific words spoken or written by
the 1st Defendant about him. This is crucial as it provides the 1st Defendant
with an understanding of the cause of action they are facing, allows for a
proper opportunity to respond, and enables the Court to determine whether the
words convey a defamatory meaning. Failing to plead the exact words used is
detrimental to the defamation claim, as highlighted in Olaniyi v. Elero
[2007] 8 NWLR [Pt 1037] 517 at 527, 530, 531.
18. Since defamation fundamentally concerns damage to a person's
character, by initiating this action, the Claimant has placed his character
under scrutiny. The Claimant asserts that he is of good character and that
someone is attempting to harm his esteemed reputation. Thus, the burden of
proof lies with the Claimant to demonstrate that the words in question conveyed
a damaging meaning to those to whom they were published. Furthermore, the
Claimant must prove that the allegedly defamatory words were published about
him without lawful justification, as noted in Ovat v. Okota & Ors
[supra], pages 112-113, 114. The pertinent pleadings and evidence are
insufficient. During cross-examination, the Claimant admitted that there was no
report made to Azman Air Limited regarding the allegations of defamation, which
he acknowledged was verbal in nature. Although the Claimant testified that the
1st Defendant informed Azman Air Limited that he was dismissed due to fraud, he
conceded that this information came to light during Azman Air Limited’s
background checks on him. The 1st Defendant denied the Claimant’s allegations
in paragraphs 2 and 10[ii] of its statement of defence and challenged the
Claimant to produce strict evidence of his assertions. The 1st Defendant
specifically stated that it was unaware of the Claimant's application to Azman
Air Limited for employment and did not provide any testimonial or report
regarding the Claimant’s dismissal to Azman Air Limited or any other airline. The
Claimant did not contest the 1st Defendant’s assertions in his reply to the
statement of defence. He simply stated that he denied paragraphs 3 to 10 of the
1st Defendant’s statement of defence and demanded strict proof from the 1st
Defendant. However, even assuming the alleged defamatory statement was made,
based on the evidence provided, it seems that the statement was made with
lawful justification. The Claimant did not refute the fact that he was
dismissed. Therefore, a crucial element of defamation, the assertion that
someone sought to tarnish his reputation, is absent, rendering the defamation
claim unsubstantiated. Consequently, I find as a fact that the Claimant has
failed to establish the allegation of defamation.
Is the Claimant a
credible witness?
19. The next question to consider is whether the Claimant is a
credible witness. In his argument regarding issue one, specifically in
paragraph 4.22 of the final written address, the learned counsel for the 1st
Defendant contended that the Claimant lacks credibility due to contradictions
in his testimony, which he highlighted. First, the counsel pointed out that the
Claimant appeared to imply in paragraph 13 of his sworn statement that Exhibit
7 was addressed to all the staff of the Port Harcourt Branch of the 1st
Defendant. However, Exhibit 7 indicates that the memorandum was sent to all
staff of the 1st Defendant. I believe this is not a material contradiction.
Whether Exhibit 7 was addressed to all staff or only to the staff at the Port
Harcourt Airport, it remains true that the staff at the Port Harcourt Airport
are part of the 1st Defendant’s employees. Therefore, the Claimant’s
interpretation of the staff covered by the letter does not undermine the
reliability of his testimony.
20. Secondly, the counsel argued that during cross-examination, the
Claimant stated that he was not notified of the case against him or allowed to
defend himself. At the same time, Exhibits D6 and D7 demonstrate that he was
aware of the case against him. In this context, it is important to clarify that
"notified" and "aware" have different meanings. According
to the Cambridge Dictionary, to "notify" means to inform someone
officially about something, while to be "aware" means to know that
something exists. Although the Claimant may have been aware of the disciplinary
issues through Exhibit D7, which contains a query, and Exhibit D8, which is an
appeal to review his dismissal, this does not equate to being notified of the
disciplinary hearing. The evidence indicates that the Claimant only became
aware of the disciplinary hearing upon his arrival in Lagos on 21st August 2015.
Therefore, he was not formally notified of the case against him or given
sufficient time to prepare his defence as stipulated in the employee handbook.
Consequently, I do not find any contradiction in the Claimant's testimony.
21. Thirdly, the learned counsel
argued that during cross-examination, the Claimant denied admitting to the case
against him and apologising, which contradicts Exhibit D7, where it is noted
that he admitted to the allegations and apologised. I have reviewed both
Exhibit D7 and the Claimant's testimony during cross-examination. In Exhibit
D7, the Claimant explained what happened and apologised for the delay in
correcting the error. This explanation is not equivalent to an admission of
guilt in the case against him. Therefore, I conclude that there are no
discrepancies in the Claimant's evidence. However, even if there were minor
discrepancies, I am of the view that they are not such as to render the
Claimant's testimony unreliable. In the case of Uwagboe v. The State [2008] 12
NWLR [Pt 1102] 621 at 647, the Supreme Court held that minor discrepancies
between written statements and subsequent oral testimony do not undermine the
credibility of a witness. Consequently, I hold that any alleged discrepancy is
so inconsequential that it does not render the Claimant's testimony unreliable.
The issue for
determination
22. I have considered the pleadings, evidence [both oral and
documentary], and the submissions by the parties, and to my mind, the real
issue for determination is whether the Claimant is entitled to judgment on his
claims or any of them. It is the law that he who asserts must prove. The burden of proof lies with the
person who would lose if no evidence is presented. Therefore, the burden of
proof is on the Claimant who initiated this suit on a set of facts that he
claims entitle him to judicial relief, and who must establish those facts to
have a judgment in his favour. Only when the Claimant establishes a prima facie
case does the burden shift to the Defendants to prove their defence. See
Sections 131[1], 132, 133[1] and 136[1] of the Evidence Act, Nsude & Ors v. Nichodemus & Ors
[2025] 4 NWLR [Pt 1982] 253 at 280,
Nwanne & Ors v. Okoli &
Ors [2025] 2 NWLR [Pt 1976] 339 at 369, and Nduul v. Wayo & Ors
[2018] LPELR-45151[SC] 51 – 53. The burden of proof in civil cases is discharged on a balance of
probabilities. See Section 134 of the Evidence Act.
23. Additionally, the Claimant
who seeks declaratory relief must establish his entitlement to the declaration
by credible evidence and will succeed on the strength of his case, not on the
weakness of the defence or admission by the Defendant. Since a declaratory
relief involves the exercise of the Court’s discretion, the Claimant must place
sufficient materials before the Court to justify the grant of the declaration.
See Nduul v. Wayo & Ors [2018] 7 SC
[Pt III] 164 at 213, U.T.C. Nigeria Plc v. Peters [2022] 18 NWLR
[Pt 1862] 297 at 312, 313, and Osho v. Adeleye & Ors [2024] 8
NWLR [Pt 1941] 431 at 452. In resolving employment disputes, the Court will usually refer to
the employment contract and any other stipulations incorporated or deemed to
have been incorporated into the contract. See Jowan & Ors v. Delta Steel Company Ltd [2013] 1 ACELR 18 at 24,
Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108,
and Gbedu & Ors v. Itie & Ors [2020] 3 NWLR [Pt 1710] 104 at 126.
The contract of employment is the foundation for an action for breach of an
employment contract, and the success or otherwise of the case depends entirely
on the terms agreed or deemed to have been agreed by the parties. See Umera
v. Nigerian Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 386 and Gyubok
v. The Federal Polytechnic, Bauchi & Anor [2024] 16 NWLR [Pt 1965]
515 at 549.
Summary of evidence
24. The
Claimant sought seven reliefs, testified to support his claims, and tendered 22
exhibits, which are marked as Exhibits 1 to 22. These are: the front page of
the Claimant’s employment letter dated 6th March 2008, confirmation letter
dated 12th October 2008, letter appointing the Claimant as a Passenger Service
Agent dated 7th August 2009, promotion letter dated 3rd December 2014, emails
sent to the Lagos office about the job and the station issues, certificate of compliance
with Section 84 of the Evidence Act dated 10th November 2020, Arik’s internal
memo dated 4th June 2015 to staff captioned “Appreciation”, annual leave
approval document, the Claimant’s suspension letter dated 21st August 2015, the
Claimant’s dismissal letter dated 26th August 2015, employee handbook, the
Claimant’s email dated 28th September 2015 appealing against the dismissal, the
Claimant’s Stanbic IBTC RSA statement of account, the Claimant’s computation of
his pension contributions, six photographs of the Claimant, the Claimant’s solicitors’
letter dated 3rd February 2020 to Arik, Arik’s response dated 17th February
2020, Arik’s letter to the Claimant’s Solicitors dated 3rd March 2020, the
Claimant’s solicitors’ bill dated 5th March 2020, incident report, email correspondence of 13th
February 2015, and the Claimant’s Access Bank statement of account from 1st
January 2012 to 15th August 2019.
25. Mr. Edmund Duru, referred to as "Mr.
Duru", testified that he was employed as a security officer by Arik Air
Limited, referred to as "Arik", starting on 10th March 2008, by a
letter dated 6th March 2008. His employment was confirmed with a letter dated
12th October 2008. Due to his hard work, diligence, and commitment to his
duties, he received two promotions: first to Passenger Service Agent as noted in
a letter dated 7th August 2009, and later to Duty Manager at the Arik Port
Harcourt office, effective 1st December 2014, as confirmed in a letter dated 3rd
December 2014. His gross annual salary was increased to N2,880,000.00, which amounted to a net monthly salary of N215,000.00 [two hundred and fifteen
thousand naira] after tax and pension deductions. However, Arik unlawfully
terminated his employment on 26th August 2015. After his promotion, along with
his colleagues, there was a need to hire or upgrade staff to fill the vacant
positions. Despite sending several emails to Arik's Head Office, the Human
Resource Officer, and the Ground Operations Officer, he received no response.
As a result, Mr. Duru and his colleagues were instructed by Arik to assume both
their previous roles and their new responsibilities. His duties included
checking in passengers, handling luggage, ensuring flights were boarded,
managing flight control, and assisting passengers in wheelchairs, among other
tasks. As a Duty Manager, Mr. Duru also took on the role of IT support staff at
the Port Harcourt branch following the passing of Mr. Solomon Ogbejeje. This
position remained unfilled, despite numerous requests. Mr. Duru reported that,
as a Duty Manager at the Port Harcourt branch, he typically began work at 5:00 a.m.
and often finished as late as midnight, especially when flights were delayed.
His daily responsibilities included organising operational activities, managing
check-in procedures, addressing passenger complaints, and sending emails to
relevant officers within Arik. Mr. Duru stated that the Port Harcourt branch
was understaffed and lacked proper working tools. The branch faced issues with
faulty measuring scales, baggage carts, tag printers, computers, and internet
connections. Mr. Duru submitted multiple complaints to management regarding
these problems and requested solutions, but was instructed to make the best use
of the available resources. As a consequence, employees were responsible for
personally purchasing internet, Wi-Fi, and data to carry out their official
duties.
26. In
2015, the Managing Director of Arik visited the Port Harcourt branch and
acknowledged the challenges employees faced in performing their daily duties.
He expressed his appreciation in a letter dated 4th June 2015. On 29th July
2015, Mr. Duru applied for annual leave, which was approved on 3rd August 2015
for the period from 21st August 2015 to 12th September 2015. After finishing
work on 18th August 2015, he travelled to his hometown in Rivers State. While
on leave, Mr. Duru received an email regarding the work he had done on 11th
August 2015, requesting clarification on discrepancies in excess luggage
charges. Due to stress from staff shortages and a lack of tools at the Port
Harcourt branch, he planned to respond after his leave, but was persuaded by the
Station Manager, Mr. Ubong Jackson, to reply based on his memory. He believed
the matter was resolved. On 21st August 2015, he was contacted by Mr. Jackson
and instructed to report to the office. Upon arrival, he learned that he needed
to visit the Head Office in Lagos to meet with the Ground Operations Manager,
Mr. Murat Ozcan. Upon entering the Ground Operations Office, he discovered that
a panel had been formed to discuss the events of 11th August 2015, which was
shocking, as he had not been informed or allowed to present a witness from Port
Harcourt, as per the employee handbook. The panel concluded around 4:00 p.m.,
and he received a pre-typed suspension letter dated the same day, citing a
suspected case of fraud. Since the panel met on a Friday, the Head Office was
closed for the weekend. On 24th August 2015, Mr. Chike Emmanuel and Mr.
Ikechukwu from Total Nigeria Plc confirmed they had paid ?113,500.00 for excess
luggage and requested that the panel investigate further at the Port Harcourt
office. However, the panel did not pursue this investigation.
27. On 26th
August 2015, Mr. Duru received a dismissal letter dated the same day, sent via
the 7:00 a.m. flight from Lagos to Port Harcourt. He was dismissed for
"serious negligence in the performance of his duties", abandoning the
earlier allegation of fraud mentioned in his suspension letter. Mr. Duru
contends that his dismissal was unlawful, illegal, and unconstitutional, as it
violated Arik’s Employee Handbook and did not follow the required comprehensive
investigation procedure outlined in the handbook, which should have taken at
least 7 days to conclude. He was not provided with the Investigation Panel's
report, nor was it given to the Station Manager of the Port Harcourt branch,
which is standard disciplinary procedure according to Arik’s Employee Handbook.
After his dismissal, Mr. Duru emailed Arik’s Ground Operations Officer, Mr.
Murat Ozcan, to appeal for a review of his dismissal, but he received no
response. Additionally, he was not paid his salary for August 2015, amounting
to N215,000.00 [two hundred and fifteen
thousand naira], nor was he compensated with one month’s salary in lieu of
notice for the termination of his employment. He did not receive any severance pay
for his 7 years and 5 months of dedicated service to Arik. Furthermore, Arik
froze his salary account with Access Bank Plc [Account No. 0692362237]. In
September 2015, when he attempted to withdraw funds from his account, he was
informed that it had been frozen on the directive of Arik’s Human Resources
Department officers, Mr. Matthew Okonkwo and Mr. Emmanuel Kwuluje, due to an
investigation regarding an alleged fraud. This action was taken without his
notice or consent.
28. Mr. Duru stated that upon receiving his
account statement from Stanbic IBTC Pension Managers after his dismissal, he
found that Arik had not remitted the required pension contributions despite
regular monthly deductions of 7.5% of his income. Mr. Duru claimed that the
total amount of his pension contributions should be N856,980.00, while the statement indicated only N272,917.28, leaving an unremitted balance
of N607,300.52 [six hundred and seven
thousand, three hundred naira and fifty-two kobo]. He noted that interest must
have accrued on this unremitted amount and stated that if the remitted sum
earned N526,322.62 in interest, the
unremitted sum would yield a corresponding interest amount. Mr. Duru emphasised
that he is entitled to the same interest on the unremitted sum of N584,062.72, based on Arik’s prior
admissions. Additionally, Mr. Duru mentioned the severe financial difficulties
he faced since his summary dismissal, which led to health issues. He lost a
potential job with Azman Air Limited after Arik's Human Resources informed them
of his dismissal due to allegations of fraud, which damaged his reputation.
Following his dismissal on 26th August 2015 and after recovering from health
challenges, Mr. Duru instructed his solicitor, Chika Olive Obisike, Esq., to
address his wrongful dismissal with Arik. When Arik partially denied liability,
Mr. Duru proceeded to engage his solicitors to initiate legal action, incurring
a professional fee of N1,000,000.00 [one
million naira]. Mr. Duru insists that his dismissal violated the employment
terms and principles of equity, seeking relief as outlined in his amended
statement of facts.
29. In an additional sworn statement, Mr. Duru emphasised that Arik's
Port Harcourt branch lacks sufficient staff, which hampers effective
operations. Despite numerous complaints to the head office, no action was
taken. He clarified that while clause 4.3 of the employee manual allows for
occasional coverage of additional work functions, this should not be a daily
practice. He starts work at 5 a.m. to manage the first flight to Lagos at 7:30
a.m., making an 8 a.m. start impractical. Mr. Duru stated that overtime pay was
not provided, and management often asked staff to be patient regarding salary
delays. He maintained that the branch was understaffed and had faulty
equipment, which disrupted operations during power failures. Although the memo
dated 4th June 2015 was sent to all staff, the issues prompting management's
appreciation originated from the Port Harcourt branch. The Managing Director
witnessed the struggles employees faced while working with personal resources
amid salary arrears and sent an appreciation letter after paying overdue
salaries. Mr. Duru took leave from 21st August 2015, but received calls
regarding an email about a prior incident. Despite his request to verify
details in his logbook, he was asked to respond to the email immediately. When
he arrived in Lagos, he was handed a pre-prepared suspension letter. The Panel
of Inquiry at the head office had already deemed him culpable before he could
present his case, and he was not allowed to bring a witness from Port Harcourt.
His suspension was prematurely lifted before the stated date, suggesting an inadequate
investigation into the allegations against him, contrary to clause 4.1 of
Arik's Employee handbook.
30. Mr. Duru stated that on the
day in question, he mistakenly unchecked the boarding passes of the flight
passengers because all the tickets were corporate tickets, and Arik had a dedicated
check-in counter for corporate check-ins. Boarding passes from other counters
are routinely presented to him for unchecking, given that he has a higher
sign-on code. After he unchecked the boarding passes, the Senior Protocol
Officer at Arik informed him that they were presented for bag tagging, as the
new check-in agent's computer had malfunctioned. He then rechecked the boarding
passes in the system and tagged the bags, while his own computer was nearly
malfunctioning as well. Mr. Duru denied breaching Arik’s check-in procedure or
causing any loss of revenue to the company. Although luggage weight was deleted
an hour after the flight's departure, this had no impact on the total weight
checked into the flight or on Arik’s revenue, since the original weight was
provided to the flight captain along with the load sheet. The passenger, Mr.
Ojoh Kingsley, travelled with his entourage as a group. Mr. Duru explained that
the alleged deletion one hour after departure resulted from faulty computer
systems, which Arik had failed to fix despite several complaints. The baggage
weight was removed due to a K-edit error message that appeared on the system,
preventing the file from closing. The removal of baggage weight due to a K-edit
error had always been used to reconcile the flight, as they were not informed
of any better methods until after the panel meeting. Given that his duties did
not involve revenue, he had no dealings with cash or monetary transactions.
Access Bank Plc managed all cash transactions in conjunction with the sales
agents. As such, he could not possibly defraud Arik in any way. All baggage
weights were calculated by the check-in agent to provide accurate weights for
the loadmaster and the flight captain, ensuring proper flight operations. He denied
defrauding Arik of N30,000 or any other
benefit or entitlement. Mr. Duru clarified that he did not willfully or
fraudulently delete the baggage weight. Instead, he was simply editing the
flight as part of the flight controller's responsibilities, which include
ensuring that flights are properly closed. He noted that if there was a K-edit
error during this process, the controller would have to remove the weight
causing the error to allow for the closure of the flight schedule. The
passengers whose flight details were in question, the Ojohs, all had corporate
tickets from a different counter. He reiterated that boarding passes are
typically brought to him from the Corporate Tickets Counter to uncheck, and
that the boarding passes in question were presented to him without any prior
clarification. He was only informed that the boarding passes were for bag tags
after he had unchecked them, as the lady at the corporate desk could not do it
due to her computer issues. Mr. Duru insisted that there had been no
replacement since the only IT staff servicing the Port Harcourt station passed
away on 15th June 2015. Consequently, the station experienced severe issues
with its internet connection and services, as well as its computer systems,
with no Arik staff available to address these problems. Mr. Duru asserted that
Arik failed to investigate and did not extend the investigation to the Port
Harcourt office before his dismissal. Mr. Duru also denied receiving payment
for his August 2015 salary and refuted any admission of this in the email dated
28th September 2015. Mr. Duru stated that Arik acknowledged the non-remittance
of his pension from May 2011 to August 2015. He stated that the current
receivership does not negate Arik's responsibility to remit the funds owed
during his employment, particularly given his dismissal in 2015. Mr. Duru
stated that Arik was contradicting itself by withholding his contributory
pension deducted from his salary while claiming he was not entitled to the
unremitted amount. He explained that he arrived at the unremitted sum and the
accrued interest based on the standard interest rate payable by Stanbic IBTC on
funds deducted from Arik’s employees’ salaries and remitted to it under the
pension contribution scheme, as indicated in Stanbic IBTC’s statement of defence.
Finally, Mr. Duru described the purported investigation report mentioned in
Arik’s statement of defence as an afterthought, frivolous, and fabricated,
asserting that Arik did not conduct a proper investigation into the events leading
to his dismissal from employment.
31. During cross-examination by Arik, Mr. Duru read
clauses 4.3 and 4.4 of the employee handbook, Exhibit 11. He interpreted these
clauses as permitting employees to cover for a sick colleague and work extra
hours. Mr. Duru confirmed that, according to clause 4.3, employees can swap
duties in an emergency, and per clause 4.4, they can work overtime and receive
additional pay for those hours. He acknowledged that his employment terms
stipulate he may need to work beyond his regular hours, start earlier, end
later, or work on weekends and public holidays. However, he noted that he
received shift allowances but was not compensated for overtime. Mr. Duru
admitted that Exhibit 7 was directed to all staff. He claimed that he was not
informed of the allegations against him and was not allowed to defend himself
before his dismissal. Although he attended the investigation panel, he denied
admitting to any wrongdoing or apologising. Mr. Duru refuted the idea that his
dismissal was due to the investigation panel’s report. He stated that he was
never made aware of any report indicting him of a serious breach of Arik’s
procedures that resulted in revenue loss. Furthermore, he denied any negligence
in managing the check-in process for Abdul Saleh, Ojo Kingsley, and Ojo Batiyam.
Mr. Duru stated that he had not received his salary for August 2015 and that
gratuity and severance payments were not specified in his employment letter. Mr.
Duru admitted that he did not possess any evidence to demonstrate that Arik had
frozen his account. When asked if he could provide proof that Arik had issued
any testimonial or report regarding his dismissal to Azman Air Limited or any
other airline, he mentioned that it had been communicated verbally from Human
Resources to Azman Air Limited and that no written report existed. Mr. Duru
admitted he lacked documentation to prove his illness, stating he followed
traditional practices, so he did not have a medical report. After his
dismissal, he pursued the appeal procedure. In cross-examination by Stanbic
IBTC, Mr. Duru confirmed that he was employed by Arik as a security officer
from March 2008 until his dismissal in August 2015. He stated that Arik did not
pay him his salary for August 2015, which amounted to N215,000, and that he did not receive any severance payment for his
7 years and 5 months of service. Mr. Duru confirmed that Arik unjustly
terminated his employment and that deductions were made from his salary without
being remitted to Stanbic IBTC. Mr. Duru admitted that he is entitled to
interest on the deductions taken from his monthly salary, which is to be paid
by Arik.
32. Mr. Rasheed Lawal, the regional manager of Arik, testified that he
was responsible for overseeing and monitoring the company's offices in Ikeja,
Lagos, and Port Harcourt. He had access to various files and documents related
to both staff and clients within the region. During his testimony, he confirmed
that Mr. Duru was promoted to the position of Passenger Service Agent and
subsequently advanced to the role of Duty Manager. Mr. Lawal denied that Mr.
Duru combined the duties of his former position with those of his current
position while employed by Arik, stating that the company had sufficient staff
to handle such responsibilities at all times. Even if it were assumed that Mr.
Duru did combine these duties while at Arik, Mr. Lawal explained that this
would align with clause 4.3 of Arik’s Employee Handbook. This clause requires
employees to undertake other duties outside their normal work responsibilities
from time to time and permits deployment to different areas of the business at
the request of a manager. He clarified that Mr. Duru's standard working hours
were from 8:00 a.m. to 5:00 p.m., Monday to Friday, but he could be required to
work additional or longer hours due to the nature of Arik’s business, as stated
in clause 4.4 of the Employee Handbook. Given the specific demands of the
aviation industry, some employees, including Mr. Duru, might need to start
earlier, finish later, or work during weekends and public holidays. Mr. Lawal
noted that, because Mr. Duru was in the security department, which has critical
safety requirements in civil aviation, he was often required to work longer
hours, including on public holidays. According to clause 4.5.1 of the Employee
Handbook, Mr. Duru was compensated for any overtime worked beyond his standard
hours, as well as receiving shift and flight allowances to account for these
additional responsibilities. He explained that the recruitment of staff and the
acquisition of tools and materials at Arik’s Port Harcourt branch were based on
operational needs. At the time, the branch had enough staff and resources to
handle its business requirements. Moreover, recruitment announcements and
vacancies are posted on Arik’s notice board, intranet, and website, and can
also be advertised internally at Arik’s discretion. Mr. Duru does not dictate
recruitment processes, and the determination of whether a vacancy exists is the
purview of Arik’s management, not Mr. Duru. Additionally, Arik’s Information
Technology and Communication department is well-equipped with state-of-the-art
technology to meet its needs. All staff members are provided with PCs or
laptops with the necessary software installed to perform their job functions
effectively. Arik has established internet access for business purposes, and
company policy prohibits employees from using their personal laptops, software,
data, or Wi-Fi for company business.
33. Mr. Lawal stated that the internal memo dated 4th June 2015,
referenced by Mr. Duru, was addressed to all Arik staff across its branches.
The memo aimed to appreciate and encourage them during the challenges faced in
the Nigerian Civil Aviation industry in 2015 and was not specifically directed
at the Port Harcourt branch. The year 2015 was particularly challenging for the
aviation industry, as Arik experienced a reduced demand for air travel during
that time. However, the staff available were sufficient to handle Arik's
business operations. In August 2015, while conducting an audit of the Port
Harcourt check-in process, Revenue Audit Officer Ojo Soje discovered a breach
in the procedure, resulting in a loss of revenue. Arik immediately initiated an
investigation upon discovering this breach. An email dated 18th August 2015,
titled “Breach in Checking Procedure & Loss of Revenue,” was sent to Mr.
Duru, but addressed to his line manager, Mr. Ubong Jackson. Mr. Jackson
forwarded the email to Mr. Duru on the same date, notifying him of the case
against him and offering an opportunity to defend himself. In his defence, via
an email sent on 19th August 2015, through Mr. Ubong Jackson, Mr. Duru admitted
to the breach, apologised, and pleaded for mercy. Due to Arik's dissatisfaction
with Mr. Duru's explanation, a panel was established to conduct a hearing on
the matter, of which he was a member and participated in the proceedings. By a
memorandum dated 21st August 2015, Mr. Duru was informed that he was under
investigation for a suspected case of fraud and was subsequently placed on a
one-week suspension from 21st August to 28th August 2015. This memorandum,
along with the earlier email, ensured that Mr. Duru was fully aware of the
allegations against him and could not claim ignorance. The explanatory email
from 19th August 2015, which was reproduced in evidence, reinforced that Mr.
Duru acted recklessly and negligently in performing his duties, ultimately
leading to his dismissal. The witness maintained that Mr. Duru’s reckless and
negligent breach of the check-in procedures resulted in a loss of revenue for
Arik, and this was not due to equipment failure, work pressure, or electrical
challenges. Mr. Lawal elaborated on the policies regarding baggage: holders of
economy tickets are entitled to a 20kg allowance, while those with business
tickets enjoy a 30kg allowance. Any excess baggage should be tagged and paid
for directly at the counter. The correct number of baggage items and their
total weight in kilograms must be accurately recorded on the flight manifest.
For safety reasons, the weight of luggage on the aircraft must correspond with
the flight manifest and load sheets to mitigate safety risks associated with
excess luggage. Mr. Duru failed to comply with Arik’s baggage checking and
passenger boarding procedures, resulting in a revenue loss for the company.
Furthermore, the deletion of the baggage weight from Arik's computer system by
Mr. Duru one hour after the flight's departure was viewed as an attempt to
conceal or destroy evidence of his reckless and negligent actions.
34. On 11th August 2015, Mr. Duru negligently breached Arik’s
procedures regarding passenger acceptance. He checked in four passengers with
different Passenger Name Records [PNR], which resulted in a loss of revenue
from excess baggage weighing 60 kg, valued at N30,000.00
[thirty thousand naira]. Specifically, Mr. Duru checked in seven bags weighing
80 kg for Abdul Saleh, who held an economy ticket number 7252107236618. This
was significantly over the ticket's allowance of 20 kg, resulting in an excess
baggage weight of 60 kg, with no evidence of payment for this excess.
Additionally, Mr. Duru checked in eight bags weighing a total of 287 kg for
both Ojoh Kingsley, who had a Business Class ticket number 7252107236629, and
Ojoh Batiyam, who held ticket number 7252107236628. Both tickets allowed for a
combined excess baggage weight of 60 kg. This resulted in an excess baggage
weight of 227 kg, for which payment was made. However, an hour later, Mr. Duru deleted
the entire baggage weight of 287 kg from Arik’s system. As a result of this
action, the final manifest incorrectly indicated that Ojoh Kingsley and Ojoh
Batiyam did not check in any baggage, despite having checked in eight bags
weighing a total of 287 kg. Mr. Duru's actions constituted a serious breach of
the company’s procedures, as he intentionally and willfully deleted the baggage
weight from Arik’s system one hour after the flight's departure, presumably to
conceal his negligent and reckless behaviour. Furthermore, Mr. Duru failed to
record the correct number of bags checked in, along with the accurate baggage
weight and associated fees in Arik’s system, which was against company policy.
An hour after the flight's departure, he recorded that 24 bags weighed 301 kg,
instead of the actual weight of 32 bags, which was 528 kg. This directly
contravened clause 9.4.3 of Arik’s Employee Handbook and clause 13.4.14a of the
Human Resources Manual, Employment Policy. Consequently, due to Mr. Duru’s
reckless and negligent actions, along with inappropriate edits made to Arik’s
computer system, there was a discrepancy between the total baggage weight
recorded on the final manifest of 301 kg and the accurate figure of 600 kg that
should have been captured on the load sheet.
36. Mr. Lawal denied that Arik
gave any directive to freeze Mr. Duru’s account, stating that Arik, as a
non-law enforcement entity, does not possess judicial powers and cannot
instruct a commercial bank, including Access Bank Plc, to freeze Mr. Duru’s
account or anyone else's. The witness admitted that Arik had not remitted Mr.
Duru’s pension contributions from May 2011 to August 2015, citing that Arik had
been under receivership since 2017, following its takeover by the Asset
Management Corporation of Nigeria. However, Arik is making arrangements to
remit Mr. Duru’s pension contributions to his retirement savings account. He
also denied that Mr. Duru is entitled to any unremitted sum of N607,300.52, as Mr. Duru was dismissed
from Arik's employment on 26th August 2015. Mr. Duru allegedly misrepresented
facts with the intent to deceive this Honourable Court when he claimed in
paragraph 28 of his statement of facts that the unremitted balance of his
pension contribution is N607,300.52.
Assuming, without conceding, that the balance of Mr. Duru’s pension
contribution should be N856,980.00,
subtracting the remitted sum of N272,917.28
from this figure leaves a balance of N584,062.72,
not N607,300.52 as he asserted. Mr.
Duru is not entitled to the sum of N1,173,386.85
[one million, one hundred seventy-three thousand, three hundred and eighty-six naira,
eighty-five kobo] as accruable interest. Lawal denied that Arik is responsible
for Mr. Duru’s financial hardship or his inability to fulfil family
responsibilities, stating that Mr. Duru was aware that his employment with Arik
was not permanent and could be terminated by either party, which was done
following due process. He also denied that Arik, which dismissed Mr. Duru for
gross misconduct, is accountable for his ill health. Furthermore, Mr. Lawal
asserted that Arik was unaware of Mr. Duru’s application to Azman Air Limited
for employment and any subsequent refusal, as Arik does not control the
recruitment process at Azman Air Limited. After thoroughly reviewing Mr. Duru’s
file and records at Arik, he found no evidence of any testimonial or report
issued to Azman Air Limited or any other airlines regarding Mr. Duru’s
dismissal. He also denied that Arik was evasive in its letter dated 3rd March
2020, in response to Mr. Duru’s solicitors' correspondence. Mr. Lawal urged the
Court to dismiss this suit, citing it as frivolous, vexatious, fortune-seeking,
baseless, unmeritorious, a gold-digging exercise, and a ploy to engage Arik in
litigation out of vendetta. Arik tendered ten documents marked Exhibits D1 to D10.
These are: the employee handbook, Human Resources policy manual, investigation
panel report, dismissal letter, Arik's letter dated 3rd March 2020, suspension
letter, email exchange from 18th – 19th August 2015, Mr. Duru's email of 28th
September 2015, Arik's letter dated 17th February 2020, and a certificate of
authentication.
37. During cross-examination by Mr. Duru's counsel, Mr. Lawal stated
that he is the Regional Manager of Operations at Arik and has been with the
company since March 2007. He mentioned that his staff identity card serves as
proof of his employment, although he did not bring it to the Court. Mr. Lawal
affirmed that Arik promotes employees based on merit rather than sentiment. He
indicated that he was unaware of Mr. Duru's position when he joined Arik and
did not know that Mr. Duru had been employed as a security officer before being
promoted to a passenger service agent and then to a duty manager. He noted that
Mr. Duru’s promotions were a result of his diligence at work. Mr. Lawal also
mentioned that he is unsure of the duration of Mr. Duru's employment with the
company, but he confirmed that Mr. Duru was a duty manager before his
dismissal. According to Mr. Lawal, receiving money from passengers was not part
of Mr. Duru's job description, although he was involved in checking passengers
in. He referenced paragraph 5[v] of his sworn statement, maintaining that Mr.
Duru's duties were primarily related to passenger check-in. Mr. Lawal explained
that Mr. Duru's employment was terminated due to his involvement in collecting
certain sums of money, which was outside his responsibilities, and he was
unable to defend himself. Mr. Lawal stated that he was unsure whether Mr. Duru
had been invited to a disciplinary panel, as the process is typically conducted
via email. He mentioned that, according to the employee handbook, the time
required to investigate a case thoroughly varies, with a minimum duration of
one week; however, he was unsure of the maximum time needed for a complete
investigation. Mr. Lawal confirmed that the minimum investigation time had been
exhausted in Mr. Duru's case. Still, he did not have specific details on the
matter, as it falls under a different department. He read the second paragraph
of the suspension letter, marked as Exhibit 9, and stated that the date on the
termination letter is 26th August 2015. Mr. Lawal admitted that no proof was
presented to the Court indicating that Mr. Duru had been served with the
investigation report. Still, he presumed that Human Resources would have this
information. Additionally, he was unsure if Mr. Duru had received the
investigation report or whether his salary for August 2015 had been paid, as Human
Resources would also hold that information. Mr. Lawal expressed that he
believes Mr. Duru's statutory pension contributions, including his own, were
deducted. However, he was uncertain about the last time Arik remitted Mr.
Duru's pensions to his pension manager. It is worth noting that Stanbic IBTC’s
counsel did not cross-examine him.
38. Maria Theresa Oladele, a client service officer at Stanbic IBTC,
confirmed that Mr. Duru was an employee of Arik and that he maintained a
Retirement Savings Account No. PEN100386888311 with Stanbic IBTC. She stated
that her knowledge of Arik is limited to its business operations and the
remittances made to Mr. Duru's account. However, she denied knowing Mr. Duru’s
identity number ARA1235 and did not acknowledge his position as a Duty Manager
at Arik's Port Harcourt branch. Ms. Oladele explained that Stanbic IBTC is a
limited liability company serving as a Pension Fund Manager, with its head
office located at Plot 1678 Olakunle Bakare Close, Victoria Island, Lagos. She emphasised
that Stanbic IBTC is not privy to any communications or transactions between
Mr. Duru and Arik. As of 4th September 2020, the total balance in Mr. Duru’s
Retirement Savings Account No. PEN100386888311 was N821,210.91 [eight hundred and twenty-one thousand, two hundred and
ten naira, ninety-one kobo], which includes pension contributions remitted by
Arik into the account and accrued interest. This balance is less than the N856,980.00 [eight hundred and fifty-six
thousand, nine hundred and eighty naira] claimed by Mr. Duru. The entries in
Mr. Duru’s Retirement Savings Account indicate that the total sum remitted by
Arik was N272,917.28 [two hundred and
seventy-two thousand, nine hundred and seventeen naira, twenty-eight kobo]. At
the same time, the interest accrued over time amounted to N548,293.62 [five hundred and forty-eight thousand, two hundred and
ninety-three naira, sixty-two kobo]. All remittances made by Arik and the
interest earned are recorded in Mr. Duru’s Retirement Savings Account,
confirming the total credit balance of N821,210.91
[eight hundred and twenty-one thousand, two hundred and ten naira, ninety-one
kobo] as of 4th September 2020. Ms. Oladele stated that Stanbic IBTC has
diligently and professionally managed Mr. Duru’s Retirement Savings Account in
accordance with the pension administration regulations in Nigeria. She
maintained that Mr. Duru's lawsuit is misconceived and does not present a
reasonable cause of action against Stanbic IBTC, urging for it to be dismissed
with substantial costs. During the proceedings, Stanbic IBTC tendered one
document, marked as Exhibit DD1, which is the pension statement of Mr. Duru's account.
When cross-examined by Arik’s counsel, Ms. Oladele confirmed that Arik’s
contributions are based on salaries earned. She stated that she was unaware of
any outstanding remittances and acknowledged that the statement of account had
not been authenticated. During cross-examination by Mr. Duru’s counsel, she
admitted that she could not recall the year in which Arik began remitting Mr.
Duru’s contributions to Stanbic IBTC. Still, she noted that this information is
recorded in the pension statement. Furthermore, she confirmed that Arik last
remitted Mr. Duru's pension to Stanbic IBTC in 2013, as stated in the document.
Upon being shown Exhibit DD1, she confirmed that the last recorded remittance
was on 10th April 2013, and affirmed that no remittances had been made during
this case.
Evaluation
of evidence
39. I have read and carefully considered the oral and
documentary evidence presented by the parties. The Claimant is seeking a declaration that his dismissal was wrongful, payment
of his salary for August 2015, one month's salary in lieu of notice,
reimbursement of unremitted pension contributions with interest, and general
damages. It is undisputed that the Claimant was an employee of Arik. It is also
acknowledged that he was suspended and subsequently dismissed in August 2015.
Furthermore, it is agreed that Arik failed to remit the Claimant's pension
contributions from May 2011 to August 2015. The main issue at hand is whether
the Claimant's dismissal complied with Arik's employee handbook. That is,
whether the Claimant was wrongfully dismissed. Additionally, the parties
disagree on whether the Claimant has received his August 2015 salary and
whether he has substantiated his claims regarding pension contributions,
gratuity, and severance benefits. It is settled law that an employee who
claims wrongful dismissal has the responsibility to plead and prove the wrongfulness
of the dismissal. To do so, the employee must outline the terms of his
employment and demonstrate how the employer violated those terms, as seen in
the case of Skye Bank Plc v. Adegun [2024] 15 NWLR [Pt 1960] 1 at 35.
The employee’s failure to discharge this burden is fatal to his case, as
established in Ningi v. First Bank of Nigeria Plc [1996] 3 NWLR [Pt 435] 220
at 234.
Wrongful dismissal
40. An employer
inherently possesses the power to discipline an employee, which includes the dismissal
of the employee if there are reasonable grounds for doing so, as established in
Udemah v. Nigerian Coal Corporation [1991] 3 NWLR [Pt 180] 479 at 486, Imonikhe
v. Unity Bank Plc [2011] 12 NWLR [Pt 1262] 624 at 641, Miaphen v.
University of Jos Consultancy Limited [2013] LPELR-21904[CA] 33-34 and The
Board of Management of Federal Medical Centre Makurdi v. Kwembe [2015]
LPELR-40486[CA] 54. However, any disciplinary action taken against an
employee must comply with the terms of the employee's employment contract;
otherwise, it will be wrongful, and the employer may be liable for damages. See Union
Bank of Nigeria Plc v. Salaudeen [2017] LPELR-43415[CA] 27-28 and U.T.C
Nigeria Plc v. Peters [2022] 18 NWLR [Pt 1862] 297 at 319. This is based on the principle that the
terms of their contract bind parties. See U.T.C
Nigeria Plc v. Peters [supra]. Therefore, as stated in the preceding paragraph, an employee who
complains that his employment was wrongly terminated has the onus to place
before the Court the terms and conditions of the contract of employment and to
prove how the employer breached them. See Section 136[1] of the Evidence Act, U.T.C Nigeria Plc v. Peters [supra] page 320, Ovivie & Ors v. Delta Steel Company Limited [2023] LPELR-60460[SC]
pages 9 – 10 and Onwusukwu v. Civil Service Commission
[2020] 10 NWLR [Pt 1731] 179 at 200, 201. The burden of proof of wrongful dismissal rests with the Claimant who
alleges the same. See Keystone
Bank Plc v. Yiggon [2013] LPELR-22131[CA] page 11.
41. The
facts supporting the allegation of wrongful dismissal are outlined in
paragraphs 15 to 25 of the Claimant’s sworn statement, paragraphs 14 to 18, 27
to 36 of the Claimant’s additional sworn statement, and Exhibits 9, 10, 11 and
12. The Claimant’s evidence is that after finishing work on 18th August 2015, he
travelled to his hometown in Rivers State. While on leave, Mr. Duru received an
email regarding the work he had done on 11th August 2015, requesting
clarification on discrepancies in excess luggage charges. Despite his request
to verify details in his logbook, he was asked by the Station Manager, Mr.
Ubong Jackson, to respond to the email immediately based on his memory. He did
and believed the matter was resolved. On 21st August 2015, he was contacted by
Mr. Jackson and instructed to report to the office. Upon arrival, he learned that
he needed to visit the Head Office in Lagos to meet with the Ground Operations
Manager, Mr. Murat Ozcan. Upon entering the Ground Operations Office, he
discovered that a panel had been formed to discuss the events of 11th August
2015, which was shocking, as he had not been informed or allowed to bring a
witness from Port Harcourt, as per the employee handbook. The panel concluded
around 4:00 p.m., and he was handed a pre-prepared suspension letter dated the
same day, citing a suspected case of fraud that was expected to subsist until
28th August 2015. The Panel of Inquiry at the head office had already deemed
him culpable before he could present his case. His suspension was prematurely
lifted before the stated date, suggesting an inadequate investigation into the
allegations against him, contrary to clause 4.1 of Arik's employee handbook. On
26th August 2015, he received a dismissal letter dated the same day, sent via
the 7:00 a.m. flight from Lagos to Port Harcourt. He was dismissed for
"serious negligence in the performance of his duties", abandoning the
earlier allegation of fraud mentioned in his suspension letter. The Claimant asserts
that his dismissal was unlawful, illegal, and unconstitutional, as it violated
Arik’s employee handbook and did not follow the required comprehensive
investigation procedure outlined in the handbook, which should have taken at
least seven days to conclude. The Claimant seeks one month's salary in lieu of
notice. He was not provided with the Investigation Panel's report, nor was it
given to the Station Manager of the Port Harcourt Station, which is standard
disciplinary procedure according to Arik’s employee handbook. After his
dismissal, he submitted a handwritten appeal on 26th August 2015, to the Human
Resources Manager seeking a review of his dismissal. He also followed up with
an email on 28th September 2015 to Mr. Murat Ozcan, the Ground Operations
Officer, but both requests went unanswered.
42. Exhibits 9, 10, 11, and 12 consist
of the suspension letter, dismissal letter, employee handbook, and the
Claimant’s appeal against the dismissal, respectively. The handwritten appeal
dated 26th August 2015 was not presented at the trial. A review of the
Claimant’s oral and documentary evidence revealed the following facts: First,
the suspension letter was given to the Claimant during the disciplinary hearing
and was to be effective until 28th August 2015. The allegation indicated in the
letter of suspension was "suspected fraud." However, contrary to the
Claimant’s assertion, there is no specific timeframe for suspension, nor is
there any requirement that the suspension must end before termination of
employment. Secondly, the Claimant was dismissed on 26th August 2015 for a
serious breach of Arik procedures and serious negligence, which are distinctly
different from the initial allegation. Thirdly, contrary to the Claimant's
assertions, there is nothing in the employment contract that requires Arik to
provide the Claimant with a copy of the investigation report or to extend the
investigation to the station where the issue emanated from. Given that Arik's
inquiry was administrative and the panel had access to the operations records
from the Port Harcourt station, it is my candid view that the lack of a visit
to the Port Harcourt station does not suggest that the investigation was
inadequate. Clause 9.4.1 of the employee handbook states that "No
disciplinary action will be taken against an employee until the case has been
fully investigated." While the handbook does not define the word
"fully," the Oxford English Dictionary defines "fully" as
“completely, entirely, to the fullest extent.” This implies that the
investigation must be thorough, exploring every possible lead to ensure that
all facts are uncovered. Whether Arik achieved this will be discussed shortly. Clause
9.4.2 of the employee handbook further states, "During the disciplinary
hearing, you will be given an opportunity to present your case to the panel.
You are entitled to be accompanied by a friend or colleague who may confer with
you and/or address the panel, but cannot answer questions on your behalf."
The right to appeal is outlined in clause 9.4.3 on page 32: "If you
disagree with a decision made at a disciplinary hearing, you have the right to
appeal in writing within 10 days of the disciplinary decision, stating the
reasons for the appeal. Arik Air will respond within 30 days of receiving your
letter. You will also be entitled to be accompanied at the appeal hearing by a
friend or colleague, and the decision made at the appeal hearing will be
final." The Claimant’s appeal is dated 28th September 2015, which is
approximately 32 days after his dismissal. In paragraph 32 of his additional
sworn statement, the Claimant claims to have written a handwritten appeal
letter dated 26th August 2015 to the Human Resources Manager, but did not
receive a response to the letter, necessitating the email of 28th September
2015 to Mr. Murat Ozcan. The
disciplinary procedure chart on page 33, clause 9.5 of the employee handbook,
outlines the following steps: incident reported, investigation conducted,
formal disciplinary process, invitation to disciplinary hearing, outcome of
disciplinary hearing, gross misconduct [leading to dismissal], and confirmation
of the decision in writing.
43. The rebuttal evidence is in paragraphs 9 to 11 of
the 1st Defendant’s witness’s sworn statement, and Exhibits D1 [same as Exhibit
11], D2, D3, D4 [same as Exhibit 10], D6 [same as Exhibit 9], D7, and D8 [same
as Exhibit 12]. The 1st Defendant’s evidence indicates that in August
2015, during an audit of the Port Harcourt check-in process, Revenue Auditor,
Ojo Soje, discovered a breach that resulted in revenue loss. Upon discovery,
the 1st Defendant quickly initiated an investigation. On 18th August 2015, an
email titled “Breach in Checking Procedure & Loss of Revenue” was sent to
Mr. Ubong Jackson, the Claimant’s line manager, and subsequently forwarded to
the Claimant, informing him of the allegations and allowing him to defend
himself. On 19th August 2015, the Claimant, through Mr. Jackson, admitted to
the allegations and pleaded for leniency. However, the 1st Defendant was
unsatisfied with his explanation and formed a panel for further investigation.
On 21st August 2015, the Claimant was informed of the investigation into
suspected fraud and placed on a one-week suspension from 21st August 2015 to
28th August 2015. The Claimant was aware of the case against him, as evidenced
by his admissions in the email. He acknowledged mistakes in handling the
check-in process, stating that he incorrectly logged baggage weight for
passenger Abdul Saleh and mishandled the verification of luggage. The
Claimant’s negligence led to the breach in procedure and revenue loss for the
1st Defendant, which was not caused by equipment failure or external pressures.
Baggage policies required that economy ticket holders are allowed 20 kg and business
ticket holders 30 kg. Excess baggage fees must be paid directly to the 1st
Defendant, and accurate baggage weight must be reflected on the final manifest.
To ensure safety, the weight of luggage on the aircraft must align with the final manifest and load sheets. The Claimant failed
to follow the 1st Defendant's check-in procedures, resulting in a loss of
revenue. Deleting the baggage weight from the 1st Defendant’s system one hour
after flight departure was an attempt to conceal negligence. The Claimant was
invited to the Investigation Panel, where he had the chance to defend himself
and chose not to bring a support person. The panel concluded that the Claimant
acted with serious negligence and breached company procedures. His dismissal
was lawful and based on the findings of the Investigation Panel, following the
procedures outlined in his contract and the employee handbook. The Claimant’s
appeal submitted via email on 28th September 2015, did not adhere to the
required procedure and was submitted more than ten days after his dismissal
notification on 26th August 2015. Therefore, he is not entitled to a notice
period or salary in lieu of notice due to gross misconduct. Additionally, in
February 2015, the Claimant was involved in another incident of gross
misconduct when he lost a boarding pass, which he admitted was due to the pressure
of work, and was pardoned.
44. Exhibits
D1, D2, D3, D4, D6, D7, and D8 consist of the employee handbook [same as
Exhibit 11], employment policies, investigation report, dismissal letter [same
as Exhibit 10], suspension letter [same as Exhibit 9], query and answer to
query, and the Claimant’s appeal against the dismissal [same as Exhibit 12],
respectively. Clause 13.5 of the employment policies stipulates the
disciplinary procedure and provides, in part, that:
Should a matter arise
which may require disciplinary action, the employee will be provided with a
letter of allegations [Query] and invited to respond either in writing or at a
disciplinary hearing.
Sometimes a matter may
require a longer investigation to ensure that all the facts are disclosed. In
serious cases, the employee may be suspended [either with or without pay] so as
to ensure a full investigation. A suspension of this nature does not imply
guilt or blame and will be for as short a period as possible. The employee will
be issued with a letter confirming their suspension pending further
investigations and given a date by which they will be contacted and advised of
the next stage, if any.
Where it appears that
formal disciplinary action may be necessary, the employee will be notified in
writing of the basis of the matter to be addressed and that they are required
to attend a disciplinary hearing.
The employee will be
given a reasonable opportunity to consider his or her response to the company’s
case prior to the disciplinary hearing.
The employee must take
all reasonable steps to attend the disciplinary hearing. Should an employee
refuse to attend the disciplinary hearing, the company will conclude the matter
based on the available evidence.
Employees have the right
to be accompanied by a fellow worker if desired.
The allegation will be
explained to the employee and they will be given every opportunity to state
their case.
Following the hearing,
in the event that the Manager conducting the hearing reasonably believes that
the employee has failed to provide a satisfactory explanation for his or her
conduct, the Manager will consider the matter and decide what disciplinary
action, if any, is appropriate. Following the hearing, the Manager will notify
the employee of the company’s decision in writing and of the employee’s right
of appeal.
A record of the
disciplinary hearing along with any outcomes should be made and placed in the
employee’s file.
45. Clause
13.10 reduced the appeal period to five days. Exhibit D7 includes the query
dated 18th August 2015 and the Claimant’s response dated 19th August 2015. The
query is titled “Breach in Checking Procedure & Loss of Revenue.” The
allegation against the Claimant was clearly stated. The Claimant acknowledged
that he inputted the weight incorrectly. When the handler corrected him, he
amended the information, but in the process, he mistakenly deleted another
passenger’s details. He apologised for the delay in rectifying the error.
Exhibit D3 is the disciplinary panel's report. This report is divided into
sections: brief report, method, highlights, system findings, Edmund Duru’s
account, conclusion, panel recommendations, and legal advice. I note that in
the Claimant’s account, the panel merely recounted his response to the query
without documenting his full testimony at the disciplinary hearing. On page 3
of the report, it states, “In summary, Edmund gave conflicting statements of
the incident during the hearing. However, it was established that he breached
the company’s operational procedures while performing his duties. He admitted
to this, attributing it to pressure, error, and forgetfulness.”
46. An examination of the oral and documentary
evidence provided by the 1st Defendant revealed several key facts: The Claimant
was queried and subsequently responded to that query. Following this, the
Claimant was suspended and attended a disciplinary hearing, which ultimately
found him culpable, leading to his dismissal. However, from the totality of the
evidence presented by both the Claimant and the 1st Defendant, it is apparent
that the Claimant was not notified of the disciplinary hearing in advance. He
only learned about the hearing when he arrived in Lagos on 21st August 2015. As
a result, he was not given the opportunity to properly prepare his responses or
to attend the hearing accompanied by a colleague or friend. The 1st Defendant
did not refute this claim. Its defence was that the query dated 18th August 2015 and
the suspension letter dated 21st August 2015 constituted sufficient notice of
the allegations against the Claimant. However, the allegations cited in the
query and the suspension letter differed, rendering them inadequate for
informing the Claimant of the specific allegations he would face at the
disciplinary hearing. The critical issue is not whether the Claimant received
adequate notice of the allegations, but whether the 1st Defendant followed the
proper procedures leading to the Claimant's dismissal. Both parties agreed that
“Where it appears that formal disciplinary action may be necessary, the
employee will be notified in writing of the basis of the matter to be addressed
and will be required to attend a disciplinary hearing. The employee will be
given a reasonable opportunity to consider their response to the company’s case
prior to the disciplinary hearing.” This procedure was established by the 1st
Defendant, yet it was clearly violated. It is a well-established principle of
law that failure to adhere to an agreed disciplinary procedure renders a
dismissal wrongful and holds the employer liable for damages due to breach of
contract. This is supported by precedents such as Ziideeh
v. Rivers State Civil Service Commission [2007] 3 NWLR [Pt 1022] 554 at 578,
Union Bank of Nigeria Plc
v. Salaudeen [supra], and U.T.C
Nigeria Plc v. Peters [supra]. Furthermore, the
Claimant stated that the 1st Defendant presented him with a pre-prepared letter
of suspension during the panel sitting, which the 1st Defendant did not deny.
This suggests that, while the disciplinary procedure allows for suspension
pending investigation, the Claimant was suspended after the disciplinary
hearing had taken place. This raises concerns about the integrity of the
process leading to the Claimant’s dismissal, implying that the 1st Defendant
had already determined the Claimant’s guilt before the hearing. Additionally,
it is evident from the disciplinary panel's report that the panel relied solely
on the revenue audit report, the query, and the Claimant’s response to the query,
rather than the actual disciplinary hearing. Given the above findings, I
conclude that the 1st Defendant breached the disciplinary procedure. Therefore,
contrary to the assertion made by the 1st Defendant in paragraph 4.14 of its
final written address, the Claimant's dismissal is not justified in any manner,
as established in University of Calabar v.
Essien [1996] 10 NWLR [Pt 477] 225 at 263.
Consequently, I find that the Claimant’s dismissal was wrongful.
Was
the Claimant paid the August 2015 salary?
48. This
leads me to the question whether the Claimant is entitled to his full salary
for August 2015 despite being suspended on 21st August 2015 without pay, and
whether the 1st Defendant can deduct the N30,000.00
from the Claimant’s August 2015 salary? Regarding salary payment during
suspension, the case of Olowu v. Ecobank Nigeria Plc [2016] 68 NLLR [Pt 242]
90 at 121 established that unless there is a clear provision in the
employment contract allowing an employer to suspend an employee without pay,
such a suspension would be deemed unlawful. Furthermore, the 1st Defendant’s
witness testified in paragraph 10[i] of his sworn statement that an employee
may be suspended with or without pay, relying on clause 9.4.1 of the employee handbook.
Additionally, paragraph 2 of clause 15.5 of the employee handbook states:
“Occasionally, due to the serious nature of the alleged conduct, it may be necessary
to suspend an employee until a disciplinary hearing has taken place and a
decision has been made. If this should become necessary, any employee that has
been suspended will continue to receive their full pay and benefits while on
suspension.” The suspension letter [Exhibits 9 and D6] dated 21st August 2015, stated
that the Claimant would be suspended without pay from 21st August 2015 to 28th
August 2015. Additionally, the second-to-last paragraph of the dismissal letter
[Exhibits 10 and D4] indicated that payment would be made to the Claimant up until
his last working day, which was 21st August 2015.
49. In Mr. Abdul
Fatai Lawal v. Arik Air Limited [unreported judgment], Suit No. NICN/LA/48/2020, delivered on 8th July 2024, I interpreted these provisions. At paragraph 25,
page 22 of the judgment, I said, “I am of the respectful view that there is no conflict
between clause 9.4.1 and paragraph 2 of clause 15.5 of the employee handbook on
suspension. It is a cardinal rule of interpretation of statutes and documents
that the heading of a document cannot control the plain words of the document
unless it is ambiguous. See Royal Mortgage Finance Limited & Anor v.
Akpovi [2014] LPELR-24527[CA] 18 – 19 and Attoe & Anor v. Attoe
& Ors [2021] LPELR-54143[CA] 16. Bearing this in mind, and
looking at both provisions closely, it is my candid view that clause 9.4.1
refers to suspension during investigation. During the investigation, an
employee may be suspended with or without pay, and this suspension is not a
disciplinary action. However, where the investigation has been concluded and
the employee is indicted, if he is required to face a disciplinary hearing and
the Defendant considers it necessary to suspend him before the disciplinary
hearing, that suspension will be with pay. The rationale is that if the
suspension at this stage is without pay, the Defendant would be deemed to
impose a sanction on the employee before it has found him guilty. This is the
purport of clause 15.5 of the employee handbook.” This conclusion
is consistent with the decision in Olowu v. Ecobank Nigeria Plc [supra].
I fully endorse this conclusion. I have examined the suspension letter as well
as the testimonies of both the Claimant and the 1st Defendant’s witness. The
unchallenged evidence indicates that the Claimant received the suspension
letter on 21st August 2015, following the disciplinary hearing. While the
suspension was stated to be "to enable full investigation of the
case", it is clear that no further investigation occurred after the
disciplinary hearing. Therefore, this case falls under clause 15.5 of the
employee handbook, which grants the Claimant the right to his salary during the
suspension. Additionally, since the Claimant was dismissed before the
suspension period ended and before the conclusion of August 2015, he is
entitled to his full salary for August 2015, rather than a pro-rated amount,
even if he did not work the entire month. Based on the foregoing, I find that
the Claimant is entitled to receive his full salary for August 2015, despite
the suspension being described as without pay.
Can
the 1st Defendant deduct the N30,000.00
from the Claimant’s August 2015 salary?
50. In paragraph 10[ix] of his sworn statement, the witness for the 1st
Defendant testified that the Claimant was paid his salary for August 2015, but
that N30,000.00 was deducted for lost
revenue due to the Claimant's negligence. This was also stated in the dismissal
letter [Exhibits 10 and D4]. I have carefully reviewed the Claimant’s
employment contract, which includes the employment letter, the employee handbook,
and the employment policy. There is no provision in the Claimant’s contract
that authorises the 1st Defendant to deduct N30,000.00
from the Claimant’s August 2015 salary for the alleged lost revenue.
Furthermore, while paragraphs 5.3 of the employee handbook and 4.6 of the
employment policy outline the circumstances in which salary deductions may
occur, loss of revenue due to negligence is not included among these
circumstances. Moreover, since the Claimant has already been punished for the
offence through dismissal, imposing an additional fine of N30,000.00 would be both oppressive and constitute double jeopardy.
A Court of equity will not permit such actions without explicit authorisation
in the employment contract. Furthermore, Section 5[1] of the Labour Act states:
“Except where it is expressly permitted by this Act or any other law, no
employer shall make any deduction or make an agreement or contract with a
worker for any deduction from the wages to be paid by the employer to the
worker, or for any payment to the employer by the worker, for or in respect of
any fines: provided that, with the prior consent in writing of an authorised
labour officer, a reasonable deduction may be made in respect of injury or loss
caused to the employer by the wilful misconduct or neglect of the worker.”
Therefore, there is no general right to make deductions from an employee’s
salary. The law treats salary issues with such seriousness that, unless
expressly permitted by law or the employee, no employer is allowed to deduct
any amount from an employee’s salary. This principle is reinforced by the case of
Chemical and Non-Metallic Products Senior Staff
Association v. Benue Cement Company Plc [2005] 2 NLLR [Pt 6] 446 at 470. Consequently, I find
that the Claimant is entitled to receive the full salary for August 2015 without
any deductions.
Is
the Claimant entitled to payment of one month’s salary in lieu of notice?
51. In his argument regarding the first issue, paragraph 4.14, the
Claimant's counsel submitted that due to the Claimant's wrongful dismissal and
the failure to serve a notice of termination, he is entitled to one month’s
salary in lieu of notice. The Claimant's evidence, as stated in paragraph 26 of
his sworn statement, is that he was not paid one month’s salary in lieu of
notice. In response, the 1st Defendant states in paragraph 10[v] of the witness’s
sworn statement that the Claimant is not entitled to a month's notice or
payment of salary in lieu, since he was dismissed for gross misconduct. The 1st
Defendant relied on clauses 15.5 and 15.9 of the employee handbook and the employment
policy, which stipulate that in cases of summary dismissal, the employee is not
entitled to any notice or payment in lieu of notice. The Claimant's assertion
in paragraph 36 of the additional sworn statement equates the lack of notice
with a breach of contract and wrongful termination. However, legal precedents
indicate that a dismissal does not require the provision of notice or payment
of salary in lieu of notice. It is undisputed that the Claimant was summarily
dismissed for gross misconduct on 26th August 2015. There is a clear
distinction between the termination of a contract of employment and dismissal.
Termination gives the parties the right to terminate the contract at any time,
provided they give the prescribed notice. Dismissal, on the other hand, is a
disciplinary measure which carries no benefits, as noted in Union
Bank of Nigeria Plc v. Soares [2012] 11 NWLR [Pt 1312] 550 at 572. See also Eze
v. Spring Bank Plc [2011] LPELR-2892[SC] 15-16. Therefore, based on the contract between the parties, the Claimant is
not entitled to notice or salary in lieu of notice.
Has the Claimant
established his claim for pension?
52. The Claimant asserts
in paragraphs 28 and 29 of his sworn statement that the 1st Defendant failed to
remit his pension contributions. He states that his total pension contributions
should amount to N856,980.00, while the
1st Defendant has only remitted N272,917.28.
This results in an unremitted balance of N607,300.52
[six hundred and seven thousand, three hundred naira and fifty-two kobo]. The
Claimant provided his Stanbic IBTC Retirement Savings Account statement along
with a pension computation, marked as Exhibits 13 and 14. Exhibit 13 covers the
period from 1st June 2011 to 8th June 2020. Upon reviewing Exhibit 13, it is
noted that the total amount in the Claimant’s retirement savings account stood at
N799,239.91, which includes total
remittances of N272,917.28 and accrued
interest of N526,322.62. Therefore, all
remittances, plus the accrued interest on the remitted funds as of 8th June
2020, total N799,239.91. In Exhibit 14,
the Claimant calculates his salary deductions based on his job functions and
salary, resulting in a total remittable contribution of N856,980. This amount subtracted from the remitted sum by the 1st
Defendant yields an unremitted balance of N607,300.52,
which the Claimant now claims. The 1st Defendant acknowledges that it has not
made pension remittances for the period from May 2011 to August 2015,
attributing this failure to its receivership and attempts to arrange payments.
While the 1st Defendant disputes the Claimant’s entitlement to the unremitted
pension amount of N607,300.52, it did
not contest the Claimant’s computations outlined in Exhibit 14. The evidence
provided by the 2nd Defendant’s witness, specifically in paragraph 6 of her
sworn statement, indicates that the Claimant’s credit balance is N821,210.91 as of 4th September 2020. This
consists of the N272,917.28 remitted by
the 1st Defendant and an accrued interest amount of N548,293.62. The 2nd Defendant also submitted the Claimant’s
statement of account, marked as Exhibit DD1. After considering the evidence
presented by the parties, it is clear that the testimony of the 2nd Defendant’s
witness supports the Claimant’s claim regarding the amount remitted by the 1st
Defendant. Therefore, I find as a fact that the Claimant has successfully
established his claim for unremitted pension contributions.
53. It
is important to note that the right to pension is both constitutional and
statutory. Pensions are designed to alleviate the financial burdens faced by
employees after their employment ends, and they are not an act of charity. This
is supported by Section 210[1] and [2] of the 1999 Constitution, Section 3 of
the Pension Reform Act of 2014, and the cases of Momodu v. Nigerian Union of
Local Government Employees & Ors [1994] 8 NWLR [Pt 362] 336 at 350 and Emokpae
v. Stanbic-IBTC Pension Managers Ltd [2015] 17 NWLR [Pt 1487] 57 at 74.
Furthermore, the law does not grant employers a general right to deduct amounts
from an employee’s salary, except as explicitly permitted by law. When
deductions do occur, they must be used for their intended purpose, as stated in
the case of Chemical and Non-Metallic Products Senior Staff Association v.
Benue Cement Company Plc [2005] 2 NLLR [Pt 6] 446 at 470. By Section 4[1]
of the Pension Reform Act of 2014, employers must deduct eight percent of an
employee's salary, contribute an additional ten percent, and remit the total
contributions to the employee's Pension Fund Administrator. Having made
deductions from the Claimant’s salary for pension, the 1st Defendant must remit
it.
In the premises, the sole
issue for determination is resolved in favour of the Claimant.
Consideration of the reliefs
54. The first claim seeks a declaration that the purported dismissal of the employment of
the Claimant as contained in the letter of 26th August 2015 contravenes the 1st
Defendant’s employment manual; is illegal, wrongful, unlawful and
unconstitutional and therefore void and without any legal effect. A Claimant seeking declaratory
relief must demonstrate his entitlement to the declaration. The Claimant must succeed on the strength of his
case and not on the weakness of the defence. The onus of proof is on the
Claimant, despite a default of defence or any admission by the Defendant, as
established in Ilori & Ors v. Ishola & Anor [2018] 15 NWLR [Pt 1641]
77 at 94. The evidence supporting a legal right must be credible, cogent,
and convincing. Credible evidence is defined as evidence worthy of belief, as
noted in Ibrahim v. Garki & Anor [2017] 9 NWLR [Pt 1571] 377 at 390. I found in this judgment that the Claimant’s dismissal was wrongful. However,
it is neither illegal, unconstitutional, null, nor void. I adopt my
reasoning and conclusions in paragraphs 40 to 46 above, and hold that this
claim has been established, and it is granted.
55. The second claim is for an order directing the 1st Defendant to pay the Claimant
his salary for the month of the termination of his employment with the 1st
Defendant, to wit, the month of August 2015, in the sum of N215,000. 00 [two hundred and fifteen thousand naira] together with
all his emoluments and retirement entitlements for the Claimant’s seven years
and five months of meritorious service in the employment of the 1st Defendant. In
this judgment, I have determined that the Claimant is entitled to receive his
full salary for August 2015 without any deductions, despite the suspension
being described as “without pay.” I adopt my reasoning and conclusions stated
in paragraphs 47 to 50 above, and I grant the first part of this claim.
However, it is established law that dismissal serves as a disciplinary action
and does not come with any benefits, as noted in the cases of Union Bank of
Nigeria Plc v. Soares [supra] and Eze v. Spring Bank Plc [supra].
Consequently, since the Claimant was dismissed, he is not entitled to any
retirement benefits. Furthermore, a claim for retirement benefits is akin to a
claim for special damages, which must be specifically pleaded and proven. In
this case, the necessary pleadings and evidence are absent. Therefore, I hold
that the Claimant is not entitled to any retirement benefits. This claim is
partially successful.
56. The third claim seeks an order directing the 1st Defendant to pay the Claimant
one month’s salary in lieu of one month's notice of termination of his
employment with the 1st Defendant in the sum of N215,000.00 [two hundred and fifteen thousand naira] as stated in
the 1st Defendant’s employment manual. I found in this judgment that, based on the contract between the parties,
the Claimant is not entitled to notice or salary in lieu of notice. I
adopt my reasoning and conclusion in paragraph 51 above, and I hold that this
claim has not been established, and it is refused.
57. The
fourth claim seeks an order directing the 1st Defendant to pay to
the Claimant the sum of N607,300.52 [six
hundred and seven thousand, three hundred naira, fifty- two kobo] being pension
contributions which the 1st Defendant deducted from the Claimant’s monthly
salary which sum the 1st Defendant fraudulently, unlawfully and oppressively
failed to remit to the 2nd Defendant as it ought to. I found in this judgment
that the Claimant has established a valid claim for unremitted pension
contributions. However, the allegation of fraud against the 1st Defendant
remains unproven. The 1st Defendant, having made deductions from the Claimant’s
salary for pension, is obligated to remit these funds to the 2nd Defendant.
Thus, this claim is granted.
58. The
fifth claim seeks an order directing the 1st Defendant to pay to
the Claimant the sum of N1,173,386.85 [one million, one hundred
and seventy-three thousand, three hundred and eighty-six naira, eighty-five
kobo] being the accruable interest on the sum of N607,300.52 [six hundred and seven thousand, three hundred naira
and fifty-two kobo] deducted from the Claimant’s salary but unremitted to the
2nd Defendant; and 10% interest per annum on the total judgment sum until same
is fully liquidated. The supporting evidence
is in paragraphs 30, 31 and 32 of the Claimant’s sworn statement to the effect
that interests would have accrued on the unremitted sum of N607,300.52. The basis of computation of the sum of N1,173,386.85 is not evident from the
Claimant’s evidence. However, Section 11[3] of the Pension Reform Act of 2014
provides that the employer shall
deduct at source the monthly contribution of the employee; and not later than 7
working days from the day the employee is paid his salary, remit an amount
comprising the employee's contribution under paragraph [a] of this subsection
and the employer's contribution to the Pension Fund Custodian specified by the
Pension Fund Administrator of the employee. Subsection 6 provides that “An
employer who fails to deduct or remit the contributions within the time
stipulated in subsection [3][b] of this section shall, in addition to making
the remittance already due, be liable to a penalty to be stipulated by the
Commission. Subsection 7 provides that “The penalty referred to in subsection [6]
of this section shall not be less than 2 percent of the total contribution that
remains unpaid for each month or part of each month the default continues and
the amount of the penalty shall be recoverable as a debt owed to the employee's
retirement savings account, as the case may be.” Therefore, I hold that the 1st
Defendant shall pay interest on the unremitted sum of N607,300.52 [six hundred and seven thousand, three hundred naira
and fifty-two kobo] at the rate of 2% per month as provided in Section 11[6]
and [7] of the Pension Reform Act, 2014 from May 2011 until it is fully
remitted. On the claim for post-judgment interest, this Court has the
authority, under Order 47 Rule 7 of the Rules, to award post-judgment interest
at a minimum rate of 10% per annum. Therefore, I hold that the Claimant is
entitled to post-judgment interest at a rate of 10% per annum on all monetary
awards in this suit starting from today until the judgment sum is fully paid.
59. The
sixth claim is for General damages in the sum of N20
million only for the loss of earnings, the psychological and emotional trauma
and for the wrongful termination of the employment of the Claimant in the
Defendant’s employment [sic]. The Claimant lumped two disparate claims
together. General
damages are a form of monetary compensation awarded in cases of wrongdoing,
whether in tort or for breach of contract. Such compensation is typically
granted as a lump sum at the time of judgment, without any conditions. In
breach of contract cases, the measure of damages is the loss that arises
directly and naturally from the breach of contract. Contract damages aim to
place the Claimant in the position he would have been in had the contract been
satisfactorily fulfilled, as established in Agbanelo v. Union Bank of Nigeria Ltd [2000]
LPELR-234[SC] 20 - 21. In general, awarding damages falls within the Court's discretion and is
intended to alleviate losses caused by the opposing party, as noted in Nigerian
Railway Corporation v. Ojo [2021] LPELR-55971[CA] 40 - 41. I found in this judgment that the Claimant was
wrongfully dismissed from the 1st Defendant’s employment. Where there is a
wrong, there must be a remedy. See Mekwunye
v. WAEC [2020] 6 NWLR [Pt 1719] 1 at 22.
Accordingly, I hold that
the Claimant is entitled to general damages for wrongful dismissal.
60. On the quantum of damages to be awarded for wrongful dismissal,
Section 19[d] of the National Industrial Court Act, 2006, provides that the
Court may in all other cases and where necessary make any appropriate order,
including an award of compensation or damages in any circumstance contemplated
by this Act or any Act of the National Assembly dealing with any matter that
the Court has jurisdiction to hear. The Supreme Court, in Skye Bank Plc v. Adegun [2024] 15 NWLR [Pt
1960] 1 at 29 – 30, per Agim, JSC, held:
Where a contract of employment is brought to an
end by the employer contrary to the terms agreed therein, the quantum of
damages awardable therefore cannot be based on the remuneration of the employee
during the period of notice prescribed in the agreement for either party to
terminate the agreement. The employer cannot enjoy the benefit he would have
enjoyed if the contract had been brought to an end in accordance with the
contract. Having brought the contract to an end in breach of the contract, the
damages payable by it cannot be restricted to only one month's salary in lieu
of notice, which is what it would have been liable to pay if it had terminated
the employment as prescribed in the contract. To limit the damages payable by
the employer to one month's salary in lieu of notice in this case, would amount
to enabling it to benefit from its wrongful act in breach of the contract. It
is an inveterate rule of equity of great antiquity that equity will operate to
prevent a party from benefiting from his or her wrongful act. It would be
oppressive and unjust to the employee to award him or her damages on a basis
prescribed in the contract of employment for termination of his employment in
breach of that contract. Having brought his employment to an end outside the
terms of the contract, the employer cannot restrict the quantum of damages
awardable to the employee to the terms described in the contract. The quantum
of damages awardable to the employee in such a situation should be in
accordance with the general law on contract on the award of damages for breach
of contract, which would involve a consideration of the consequential loss that
has arisen or would arise from the breach of the contract of employment having
regard to the monthly wage, current age of the employee and the due date of
retirement.
Additionally, a dismissal comes with a stigma that
makes the employee less attractive to potential employers. The Claimant's last
salary was N215,000.00 per month. While
there is no information regarding the Claimant's age, I believe that,
considering the last salary and the indignity associated with the dismissal,
compensation equivalent to two years’ salary would be appropriate for the
Claimant. Therefore, this claim is partially successful.
61. The
seventh claim is for the cost of this action in the sum of N1,000,000.00 [one million naira]. The supporting evidence is in
paragraph 38 of the Claimant’s sworn statement to the effect that his
solicitors charged him N1,000,000.00 in
legal fees to institute this action. The Claimant tendered a copy of his
Solicitors’ bill dated 5th March 2020, Exhibit 19. This claim pertains to
solicitors' fees, which must be specifically pleaded and proved. However, the
necessary pleading and evidence are absent. There is no proof of payment of the
solicitors' fees or any portion thereof. Additionally, the basis for the claim
of N1,000,000.00 in solicitors' fees is
unclear. Therefore, I conclude that this claim has not been substantiated, and
it is hereby denied. Despite this, costs
typically follow the outcome of litigation. The successful party is entitled to
recover costs, regardless of whether he has specifically claimed them, unless
there are special reasons to deny such recovery. This principle is illustrated
in the cases of Egypt Air Limited
v. Ibrahim & Anor [2021] LPELR-55882[CA] 35 - 36 and Jalbait Ventures
Nigeria Ltd & Anor v. Unity Bank Plc [2016] LPELR-41625[CA] 38 - 39. The primary purpose of awarding costs is to
reimburse the successful party for his litigation expenses. Costs should not be
viewed as a bonus for winning or as a means to cover all financial losses
incurred during the litigation process, nor should they be influenced by
sentiment or used to punish the losing party. The Court has broad discretion in
awarding costs, and this discretion must be exercised with care. This is
supported by Order 55, Rules 1 and 5 of the Rules, and is further demonstrated in Jalbait Ventures Nigeria Ltd & Anor v.
Unity Bank Plc [supra] and Yakubu & Anor v. Ministry of Housing and
Environment, Bauchi State & Anor [2021] 12 NWLR [Pt 1791] 465 at 485. When determining costs, the Court considers
several factors, including filing fees, the duration of the case, the number of
witnesses presented by the successful party, costs of legal representation, the
value of the naira at the time expenses were incurred, and its current value.
See Adelakun v. Oruku [2006]
LPELR-7681[CA] 26 - 28. Given the
facts and circumstances of this case, I hold that the Claimant is entitled to
recover costs associated with this action. The Claimant incurred approximately N43,480.00 in filing and service fees,
attended six hearings and was represented by counsel at seven proceedings for
about five years. Considering the depreciation of the naira, the inflation rate,
the costs of filing and serving processes, and the length of time it took for
the Claimant to enforce his rights, I hereby award the Claimant costs of N750,000 [seven hundred and fifty thousand
naira] to be paid by the 1st Defendant.
62. On the whole, the Claimant’s case succeeds
partially. Relief 3 fails and is dismissed. Reliefs 2, 5, 6 and 7 are granted
partially. Reliefs 1 and 4 are granted. For
the avoidance of doubt, judgment is entered for the Claimant against the 1st Defendant
as follows:
a.
It
is declared that the Claimant’s
dismissal is wrongful. However, it is neither illegal, unconstitutional, null, nor
void.
b.
The
1st Defendant shall pay the
Claimant N215,000.00 [two hundred and
fifteen thousand naira] representing his August 2015 salary.
c.
The
1st Defendant shall remit the
sum of N607,300.52 [six hundred and
seven thousand, three hundred naira and fifty-two kobo] to the Claimant’s
Retirement Savings Account with Stanbic IBTC Pension Managers, PIN No. 100386888311
being the Claimant’s unremitted pension contributions together with the accrued
interest at 2% per month as provided in Section 11[6] and [7] of the Pension
Reform Act of 2014 from May 2011 until it is fully remitted.
d.
The
1st Defendant shall pay the
Claimant N5,160,000.00 [five million,
one hundred and sixty thousand naira] general damages for wrongful dismissal.
e.
The
1st Defendant shall pay the
Claimant N750,000.00 [seven
hundred and fifty thousand naira] cost of the action.
f.
The
monetary awards, as detailed in paragraphs [b], [d] and [e] above, shall accrue
interest at 10% per annum from today until the judgment sum is fully
liquidated.
g.
The 2nd Defendant is struck off this suit.
Judgment is entered accordingly.
……………………………………….…..
IKECHI GERALD NWENEKA
JUDGE
25/6/2025
Attendance: Parties
absent
Appearance:
C. O. Obisike Esq. for the Claimant
S. G. Ogbogboyibo Esq.,
with Basilia Onuoha Esq. and Jeremiah Obanyero Esq. for the 1st Defendant
Lawrence Owube Esq., for
the 3rd Defendant