IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. (PROF) JUSTICE ELIZABETH A OJI
DATE: THURSDAY 26th MAY 2022 SUIT NO: NICN/LA/165/2017
SUNDAY THEO ADEDOYIN CLAIMANT
ARM PENSION MANAGERS (PFA) LTD DEFENDANTS
Kolade Akande for the Claimant
Ayodeji Abdul for the Defendant
Introduction and Claim:
1. On 31st March 2017, the Claimant commenced this action via a General Form of Complaint. On 22nd October 2018, the Court granted the Claimant leave to amend his General Form of Complaint. In the Amended Form of Complaint dated 15th October, 2018, the Claimant sought for the following Orders against the Defendant:
I. A DECLARATION that the purported termination of the Claimant's appointment by the 1" Defendant by maliciously terminating the Claimant's appointment for having knowledge of cross-selling within ARM group by his subordinates which has been part and parcel of the 1" Defendant accepted practice policy handed down for compliance by its staffs including the Claimant is wrongful, wicked, oppressive, unlawful and null and void.
II. A DECLARATION that the purported termination of the Claimant's appointment, by the 1" Defendant, primarily for the offence committed by one DANIEL DARAMOLA for which he has been arraigned before Court 5. Magistrate Court, Tinubu Lagos State on Charge No. E143/2016 without any involvement, culpability liability on the part of the Claimant in the commission of the crime is invalid, ineffectual, null and void as same violates the Claimants' terms of contract of employment with the 1" Defendant.
III. A DECLARATION that the purported termination of the Claimant's appointment by the 1" Defendant without complying with the terms of contract of employment of the Claimant with the 1" Defendant is wrongful, unlawful, invalid, null and void and ineffectual.
IV. A DECLARATION that the deliberate refusal of the 2 Defendant to release the report of the investigation of the Four (4) man panel of inquiry headed by PETER AGHAHOWA since July 2016 after several demands by the Claimant from release of same till date is wrongful, oppressive, unlawful and contravene the functions, powers and/or mandate of the 2 Defendant.
V. An ORDER setting aside, nullifying and/or voiding the said purported termination of the Claimant's appointment and accordingly mandating the Defendant to pay backlog of the Claimant's salary to him and other ancillary entitlements and promotion, if any, since April 2016, till date.
VI. AN ORDER directing and/or compelling the 2nd Defendant to make available and hand over to the Claimant the Report and/or outcome of its Four (4) man panel of inquiry headed by PETER AGHAHOWA carried out and concluded on the 15th day of July, 2016.
VII. AN ORDER directing the 1" Defendant to pay TWENTY MILLION NAIRA (N20,000,000.00) at the interest rate of 20% per month till judgment is delivered to the Claimant being general and exemplary damages for the wrongful termination of the Claimant's appointment without recourse to and complying with terms of contract of employment of the Claimant with the 1" Defendant.
VIII. An ORDER directing the 2nd Defendant to pay TEN MILLION NAIRA (N10,000,000.00) at the interest rate of 20% per month till judgment is delivered to the Claimant being general and exemplary damages for its refusal to release the report of its investigation thereby concealing the report from the Claimant since July, 2016 till date.
2. In response to the Claims, the Defendant filed its Statement of Defence dated 7th of June, 2017 with the accompanying processes. In response to the Defendant’s Statement of Defence, the Claimant filed a Reply to the Defendant’s Statement of Defence on the 23rd day of June, 2017 with attached documents. Trial commenced in the suit on 24th day of April, 2018. The Claimant gave evidence for himself by adopting his witness statement on oath. He was thereafter cross-examined. During the examination in chief, the Claimant tendered in evidence, the following Documents:
1. Offer of Employment dated June 20, 2007- Exhibit C1
2. Confirmation of Appointment letter dated 18th January 2008- Exhibit C1
3. Staff Identity Card- EXHIBIT C3.
4. Employee's Disciplinary Process and Sanction Policy of the defendant- EXHIBIT C4.
5. Defendant's Staff manual tagged ARM Pensions Staff Manual & Handbook Version 2.0 February 2016 EXHIBIT C5.
6. Performance appraisal report of 18/03/09- EXHIBIT C6
7. Performance appraisal report of 12/03/08- -EXHIBIT C7
8. Promotion letter of June 30, 2009- -EXHIBIT C8
9. Performance Report of June 28, 2012- -EXHIBIT C9
10. Promotion Letter of May 26- -EXHIBIT C10
11. Performance Report of- -EXHIBIT C11
12. Performance Report of May 9, 2013- -EXHIBIT C12
13. Performance Report for year end 2014 of July 14, 2015- -EXHIBIT C13
14. Salary review of December 12, 2007 -EXHIBIT C14
15. Salary reviews of2008 June 6, 2008 -EXHIBIT C15
16. Salary review of November 20, 2014- EXHIBIT C16
17. Charge sheet dated March 11, 2016- EXHIBIT C17
18. Claimant's letter of complaint to National Pension Commission on forced resignation by the Managing Director of ARM Pension dated 15th April, 2016- EXHIBIT C18
19. Claimant's letter of 18th April 2016 stating his intention NOT TO RESIGN from ARM Pension- EXHIBIT C19
20. Letter of Termination of employment dated 19th April 2016 - EXHIBIT C20
21. Claimant's letter of complaint to National Pension Commission dated 19th April, 2016- EXHIBIT C21
22. Claimant's letter of complaint to National Pension Commission dated 18th November, 2016- EXHIBIT C22
23. Claimant lawyer's letter demanding the release of Report of National Pension Commissions investigation panel dated 9th February 2017 -EXHIBIT C23
24. Claimant's Bank statement - EXHIBIT C24
3. The Defendant opened its case on 25th of November 2021. Yetunde Alabi gave evidence as DW and was cross-examined. The Defendant tendered in evidence the following documents:
1. Letter of Employment - Exhibit D1.
2. Letter of termination - Exhibit D2.
3. GTB Online Transfer Advice for N2,467,408.42/Statement of Exit Account - Exhibit D3A.
4. Details of payment of severance benefits to the Claimant - Exhibit D3B.
5. Defendant's Conditions of Service/Handbook - Exhibit D4.
4. At the end of trial, the Court ordered parties to file their respective final addresses. The Final Written Addresses were adopted on 2nd March 2022 and the Court adjourned for judgment.
CASE OF THE CLAIMANT
5. The Claimant was employed by the Defendant via a letter of employment dated 20th of June, 2007 and confirmation of appointment dated 18th January, 2008. It is the Claimant’s case that the Defendant terminated his employment without just cause nor in line with the Defendant’s condition of service. The Claimant’s position before the purported termination of his employment was Assistant Vice President as contained in his salary review of November 20, 2014. Prior to the Claimant’s termination of appointment, an employee of the Defendant known as Daniel Daramola had been alleged of independently and secretly sending out the Defendant's Client's details which he had unilaterally and unlawfully accessed and retrieved from his own office system and sent out from his personal gmail account known as email@example.com. After investigation, the suspect was arrested and arraigned in the law Court. From all indications, the Claimant was not implicated nor involved in the matter. The Defendant's Managing Director Wale Odutola coerced and intimidated the Claimant to resign for no justified reasons. The Claimant declined tendering any resignation letter which led to the sudden and unlawful termination of his employment. The Claimant wrote several letters of complaint to the National Pension Commission as the Regulatory Authority whose responsibilities are to supervise and ensure effective Administration of pension matters and benefits in Nigeria. Thereafter, the National Pension Commission commissioned a four (4) man panel of inquiry to investigate the case. The panel carried out the assignment since 13th to 15th of July 2016 without any report till date. All effort by the Claimant to reveal the report proved abortive hence this suit. The Claimant had been traumatised and suffered from blood pressure as at the time the Claimant’s employment was terminated without fair hearing or just caused.
CASE OF THE DEFENDANT
6. It is the case of the Defendant that Claimant’s termination was carried out in line with the terms and conditions of employment and that the Claimant was paid three (3) months’ salary in lieu of notice. That the termination of the Claimant’s employment was not as a result of culpability or complicity but as a consequence of management’s loss of confidence in the Claimant’s ability to oversee the department where the said breach of clients’ confidentiality occurred. That the Defendant’s management invited the Claimant for a meeting wherein the issues surrounding the decision to terminate his employment were discussed and that the termination of the Defendant was lawful as all his entitlements were paid.
CLAIMANT’S REPLY TO DEFENDANT’S STATEMENT OF THE DEFENCE
7. The Claimant replied that the payment of three (3) months’ salaries in lieu of notice and payment of gratuity and other benefits was maliciously paid into his bank account with Access Bank clearly two (2) months after handing over the termination letter to him and subsequently remittance of the gratuity in February 2017. The Claimant states that he was not called or invited for any meeting by the Defendant’s Management prior to the Managing Director/CEO and Compliance/Legal Officer’s persistent demands for him to tender his resignation letter. He states that the Statement of Exit Account prepared and endorsed by members of staff for and on behalf of the Defendant was neither received, endorsed, or signed by him. That the Defendant fraudulently remitted Two Million, Four Hundred and Sixty Seven Thousand, Four Hundred and Eighty Naira, Forty-Two Kobo (N2,467,408.42) into his account without his consent, knowledge and approval. It was paid into his Access Bank which was the bank account through which the Defendant had obtained car loan for the Claimant’s official/status car and the Defendant was yet to complete the servicing of the said loan till date. This compelled Access Bank to place a lien on the said account. Consequently, upon the Defendant’s remittance of the unsolicited fund into his Bank account, it was immediately converted to the Claimant’s official/status car without any interference or withdrawal made by the Claimant in respect of the unsolicited remitted funds.
SUBMISSONS ON BEHALF OF THE DEFENDANT
8. The Defendant in its Final Written Address raised a sole issue for determination:
· Whether the Claimant has adequately proved his case against the Defendant, so as to be entitled to the reliefs he is seeking against the Defendant?
9. In arguing the sole issue, the Defendant submits that the Claimant has failed to prove alleged wrongful termination of his employment and that it is not the duty of the Defendant to do so. The Defendant argues that the principal relief sought in this suit; seeking this Court to declare the Claimant’s termination null and void and unlawful; is not one grantable by this Court in the particular circumstances of the employment of the Claimant being a purely master-servant relationship. Further, the Defendant argues that reliefs iv, vi and viii are against the “2nd defendant” whose name has been struck out by Order of Court dated 18th February 2018. It argues that the Order for reinstatement cannot be made as the Claimant is not entitled to it, as there is no evidence placed before the Court for making such declaration. The Defendant submits that the Claimant’s claim for Twenty Million Naira (N20,000,000) general and exemplary damages do not form part of the measures of damages the Claimant is entitled to even if the head claim succeeds; relying on the case of Marketing Board v. Adewunmi  7 NSCC 662 at 666.
SUBMISSONS ON BEHALF OF THE CLAIMANT
10. The Claimant in his Final Written Address raised five issues for determination:
i. Whether from the totality of evidence adduced before this Honourable Court the Claimant has established and discharged the burden of proof upon him that there existed a contract of employment between the Claimant and the Defendant.
ii. Whether from the totality of the evidence led by the Defendant's witness the Defendant has substantiated the reason stated for terminating the employment of the Claimant in compliance with the contract and conditions of employment between the Claimant and the Defendant to the satisfaction of the Honourable Court.
iii. Whether the Defendant's noncompliance with the terms and conditions of employment of the Claimant with the Defendant by terminating the Claimant's employment not as a result of culpability or complicity but as a consequence of management's loss of confidence in his ability to effectively supervise the team without presentation of the indicted members of the team, indictment and prosecution of the Claimant does not amount to wrongful termination of the claimant's employment to entitle him to his claims and reliefs before this Honourable Court.
iv. Whether the Defendant's malicious online transfer of the sum of (Two Million, Four Hundred and Sixty Seven thousand, four Hundred and eight Naira Forty-two Kobo (N2,467,408.42) via GT Bank to the Claimant's Access Bank Nigeria Ltd Account tagged staff exit entitlement which all said money was immediately deducted and evacuated by Access Bank for the repayment/indemnity of status vehicle lease facility obtained by the Defendant for the Claimant having placed lien on the said bank account by the bank amounts to payment of the Claimant's exit entitlement by the Defendant in compliance with paragraph 9.4.2 of Exhibit C5.
v. Whether where the reason given for termination of the Claimant's employment by the Defendant is found by the Court as incorrect, payment of entitlements which had been deducted and evacuated for repayment/indemnity for Claimant's status car obtained for him by the Defendant is the Claimant's Benefit stipulated by paragraph 9.4.2 in Exhibit C5 and the Claimant is not entitled to damages.
11. On issue one, the Claimant submits that he has led evidence to show that there existed a contract of employment between him and the Defendant. On issue two, the Claimant argues that it is settled law that once an employer gives reason for terminating or dismissing an employee, the burden lies on the employer to justify the said reason, relying on the case of Angel Shipping & Dyeing Ltd v. Ajag (2000) 13 NWLR (Pt. 686) 551 CA. He further argues that the Defendant has failed to prove before the Court that the offence "management's loss of confidence" is listed as offence necessitating applicable disciplinary action. On issue three, the Claimant submits that the Defendant was unable to prove the indictment against him to justify its unjust termination of his employment. On his issue four, the Claimant argues that without doubt, his entitlement was not paid nor was any money paid to him in compliance with paragraph 9.4.2 of exhibit C5 because the Defendant knew that a lien was placed on the particular Bank account where it paid the Claimant’s entitlement. On issue five, the Claimant argues that he is entitled to damages for the wrongful termination of his employment as flowing from the wrong he has complained of.
12. This suit was commenced on the 31st of March 2017 against two Defendants; Arm Pension Managers (PFA) Ltd and National Pension Commission. However, on the 18th of February 2020, the Claimant notified the Court of his intention to discontinue the suit against the 2nd Defendant. The National Pension Commission was struck out from the suit as a Defendant. The case thereafter proceeded against the Defendant, as presently shown in this suit. I have considered the processes filed in this suit, the evidence led and the arguments of Counsel. I adopt the following issues for determination:
(i) Whether exhibits D1 – D4 are admissible in evidence in this suit.
(ii) Whether the Claimant’s termination of employment was wrongful.
(iii) Whether the Claimant is entitled to his reliefs.
13. During trial, the Claimant’s Counsel objected to the admission of the Defendant’s documents in evidence. Both Counsel agreed that the objection be taken at the Final Written Addresses. The Claimant in his final written address has now raised the issues of the objection, as follows:
a. The Claimant Counsel hereby object vehemently to the admissibility of Exhibit D3A: Evidence of payment of Staff exit entitlement in the sum of N2,467,406.42 listed as No 3 in the list of 1st defendant's list of documents to be relied upon at trial.
14. The Claimant contends that exhibit D3A which the DW testified that he got from his computer, is a computer generated document and failed to comply with the provisions of Section 84(1), (2) and (4) of the Evidence Act, 2011 and is therefore inadmissible and should be expunged from the records and judgment of this Court. I have considered the said document admitted tentatively and marked as exhibit D3A. It is a GTBank Online Transfer Advice for the payment of N2,467,408.42. The exhibit D3A seeks to establish that the Claimant was paid the sum of N2,467,408.42 on 23rd of June 2016.
15. While tendering the document, the Claimant stated that he printed it from his computer. He did not go further to state the condition of the printer at the point of printing as required by the section under which the objection is made. Section 84(2) of the Evidence Act provides that :
84 (1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred in subsection (1) of this section are;
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from the information supplied to the computer in the ordinary course of those activities.
16. It is important to consider the essence of evidence in a judicial process such as this. Evidence includes any piece or chunk of information submitted in proof or disproof of a fact in issue. The essence is to clarify the fact in issue, and essentially assist in establishing the truth or justice of a case. Section 84(4)’s requirement for the production of a certificate of authentication is intended to lead evidence in support of a finding that the document in question is what it purports to be. This is especially due to the possibility of manipulation of documents in the present high tech ICT available where documents can be easily altered or manipulated, copied, forwarded, updated, intercepted or even deleted. See Araka v. Egbue 8 (2003)7 SCNJ 114, Tobi, JSC at 126. Yet, section 84 could not have been enacted to hamper the dispensation of justice. Therefore, the enactment of section 84 of the Evidence Act was meant to facilitate the admissibility of electronic evidence and not to hinder it.
17. In this case, the Claimant contends that the Defendant fraudulently remitted Two Million, Four Hundred and Sixty Seven Thousand, Four Hundred and Eighty Naira, Forty-Two Kobo (N2,467,408.42) into his Access Bank account without his consent, knowledge and approval. He tendered exhibit C24, his Access Bank Statement of Account, in proof of the transfer of this sum. This was not challenged by the Defendant, who rather agrees that he made the said transfer; and tendered exhibit D3A in proof of that transfer. These facts were pleaded by both parties. Thus both parties agree that the transaction evidenced in exhibits C24 and D3A took place. The intent of this objection is lost to me; in view of Claimant’s own evidence that he was paid the money in exhibit D3A. That is Claimant’s case as shown in exhibit C24. The expulsion of exhibit D3A will therefore not affect the findings of this Court with respect to the fact sought to be established. Having already been admitted, I find no need to expunge it from the proceedings. Its retention will not cause any injustice to the Claimant. Exhibit D3A is therefore retained.
18. Additionally, this Court is a specialized Court established to handle labour and employment related matters for two specific reasons. As decided by the Court of Appeal, Per Amadi JCA in Mr Victor Adegboyu v. United Bank for Africa unreported suit No. CA/IL/20/2021 judgment delivered on 14th April 2022:
The first reason is to ensure that such matters are determined expeditiously and without delay as opposed to trial in the ordinary courts. This reason is very crucial considering the fact that labour rights are primarily rights in personam as against rights in rem, in which case, time is of essence in determining such rights. Globally, the resolution of labour disputes is guided, among others, by this principle that: it is better to have a bad decision quickly than a good decision too later. See B. B. Kanyip- National Industrial Court Jurisdiction: “How Narrow is Narrow” (Hybrid Consult: Lagos) 2021, paragraph 13 page 7. This first reason also underscores the importance of labour as a factor of production which is very critical to economic growth and development of the country. The second reason which is equally very important is to ensure that technicality is not allowed to operate in the court against substantial justice.
19. To achieve this purpose, the National Industrial Court Act 2006 statutorily and clearly provided in Section 12(2) that:
(a) the Court may regulate its procedure and proceedings as it thinks fit; and
(b) shall be bound by the Evidence Act but may depart from it in the interest of justice.
20. In addition to my finding that the objection is superfluous, assuming it is not so, I find this a good circumstance to rely on section 12(2) of the NIC Act to depart from section 84 of the Evidence Act, and admit the said document. The said exhibit D3A is retained as admitted. Ruling on the applicability of section 12 of the NIC Act, Justice Amadi in the above cited case of Mr Victor Adegboyu v. United Bank for Africa referred to the case of SEC v. Abilo Uboboso often touted as overruling section 12 (2) of the NIC Act and held that it did not invalidate or diminish, in any manner, the purport of section 12(2) of the NIC Act. His Lordship stated as follows:
I must use this opportunity to state clearly that this Court in the case of SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013 the judgment of which was delivered on 21st December 2016 did not invalidate nor diminish in any manner or form the provisions or intendment of section 12(2) of the National Industrial Court Act 2006.
In that case, (SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013), the National Industrial Court admitted in evidence public documents that were not certified on the ground that section 12(2) permitted the Court to depart from the Evidence Act. The Court of Appeal held that the provisions of section 12(2) of the National Industrial Court Act 2006 cannot operate to encumber the provisions of the Evidence Act 2011. Part of the reasons upon which this Court based its decision was that the Evidence Act 2011 was made by the National Assembly subsequent to the National Industrial Court Act 2006.
However, in that case the attention of this Court was not drawn to the following facts:
Firstly, granted that the Evidence Act 2011 in the explanatory note as well as in section 256 made it clear that the new Evidence Act in repealing the old one ‘shall apply to all judicial proceedings in or before Courts in Nigeria’. Section 4(2) (b) of the Interpretation Act Cap. I23 LFN 2004, provides that where an enactment is repealed and another enactment is substituted for it, then any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. It should be noted that by section 1 of the Interpretation Act, the Interpretation Act “shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question”.
Secondly, section 2 of the Evidence Act 2011 itself, provides that ‘for the avoidance of doubt, all evidence given in accordance with section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies’.
The proviso to section 2, provides that the admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under the Evidence Act. The implication is that section 2 acknowledges that there are existing laws that exclude the application of even the Evidence Act 2011.
Thirdly, section 3 of the Evidence Act 2011, provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”. A fortiori, if another legislation makes any evidence inadmissible, the intention of the legislature in that regard must be respected. Meaning that, section 3 must be read to mean nothing in this Act shall prejudice the admissibility or otherwise that is to say; inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria.
Fourthly, section 12(2) of the National Industrial Court Act 2006 is not delimited by time or date. It talks of “Evidence Act”, not “Evidence Act 1990 or 2004”. Therefore, the notion that the Evidence Act 2011 is subsequent to the National Industrial Court Act 2006 that is because the National Industrial Court Act was passed in 2006, it cannot be said that the Evidence Act 2011 was contemplated under it, cannot really hold ground as the National Industrial Court Act 2006 simply talks of the “Evidence Act”. Even if section 12(2) of the National Industrial Court Act were delimited by time or date, section 4(2) (b) of the Interpretation Act took care of the problem. With very due respect, had the attention of this court been drawn to the foregoing factors certainly this Court would have held otherwise, therefore; I maintain that section 12(2) is extant and applicable at the National Industrial Court.
In view of the foregoing, I hold that section 12(2) of the National Industrial Act 2006 ought to apply to this case and it is hereby applied, The lower Court ought to have departed from the provisions of section 84 of the Evidence Act 2011 which is hereby departed from. Consequently, the order of the lower court discountenancing and expunging the said exhibit VG14 is hereby set aside, the said exhibit VG14 is to be given its probative value.
21. The Claimant also challenges the other exhibits - D1, D2, D3B and D4 on the ground that the Defendant’s witness was not the person that performed the functions leading to the documents. Accordingly, he argues that the Defendant’s evidence runs afoul the provisions of Section 126 (A), (B), (C) and (d) of the Evidence Act, 2011 because “she neither worked with the Claimant during his period at the Defendant as the Defendant's employee nor was she a member of the panel that claimed to have taken decision on the Claimant…” Exhibit D1 is the Claimant’s Offer of Employment letter which he tendered and which was marked exhibit C1. Exhibit D2 is the Claimant’s Termination of Employment letter which he also tendered and was marked as exhibit C20. Exhibit D4 is the Defendant’s Staff Manual and Handbook which the Claimant tendered and was marked exhibit C5. From the above, it is obvious that Claimant’s objection to these documents lack constructive content as he pleaded, tendered and is relying on the same documents. What then is achieved in making these objections? I find that the Claimant’s objections to exhibits D1, D2 and D4 in this address lack merit, and is hereby discountenanced.
Issue Two - Whether the Claimant’s termination of employment was wrongful.
22. Both parties in this suit are in agreement as to the employment status of the Claimant, and when and by what instrument it was brought to an end. They agree on the application of exhibit C1 – Offer of Employment, exhibit C2 – Confirmation of Appointment, exhibit C5 Defendant’s Staff Manual and Handbook, and exhibit C20 – Termination of Employment. The Claimant however contends that the termination was wrongful and that he was maliciously terminated for having knowledge of cross-selling within ARM group by his subordinate which has been part and parcel of the Defendant’s accepted practice policy. He also asserts that he was not given fair hearing in the process leading to the termination of his employment. The Claimant argues that his contract of employment is governed by the Company’s Employees’ Policy and not by the Financial Sector Policy. To determine if the Claimant’s termination was wrongful, resort has to be made to the instruments regulating the Claimant’s employment, vis-à-vis the procedure adopted and instrument terminating his employment.
23. I must note that the Claimant did not point this Court to the provision of his contract violated in relation to the termination of his appointment. I see in exhibit C5 – The Staff Manual and Handbook that a Senior Management Staff and above who resigns, is expected to give three months’ notice or salary in lieu of notice. The Claimant has not alleged a breach of this provision. Exhibit C20 – the Termination of Employment letter duly paid the Claimant what would be taken to amount to three months’ salary in lieu of notice. I say this because the Claimant while acknowledging receipt of this payment, though paid without his consent, did not state that it did not represent his three months’ salary. Exhibit C20 is clear on the purpose of the payment, when it states that:
To this effect, the Company shall pay to you as severance the sum of N2,447,095.59 (Two Million, Four Hundred and Forty Seven Thousand, Ninety-Five Naira and Fifty-Nine Kobo. only), equivalent to three months full salary (May-July)
24. From the above, the Defendant complied with the Claimant’s contract in the termination of his employment. The Claimant however made allegations that tantamount to reliance on exhibit C4 – the Defendant’s Employees’ Disciplinary Process and Sanctions Policy. Exhibit C4 details the Defendant’s disciplinary process and sanctions policy. This includes verbal warning, written warning, final written warning and where the problem is not corrected, within one month therefrom, action will be taken to release the staff from the company. Exhibit C4 further provides that an employee “who is guilty of serious misconduct as detailed above, would be summarily dismissed. There is no evidence to show that the Claimant was ever subjected to the disciplinary process for any of the listed acts of gross or serious misconduct; or that the Claimant was summarily dismissed. On Claimant’s issue whether from the totality of the evidence led by the Defendant's witness the Defendant has substantiated the reason stated for terminating his employment in compliance with the contract and condition of employment between the Claimant and the Defendant; if the Claimant relies on exhibit C4, then this issue cannot be resolved in his favour. This is because exhibit C4 makes provision for dismissal only; and the Claimant was not dismissed. The reason given by the Defendant for terminating the Claimant is stated in exhibit C20 as “Management has lost confidence in your ability to effectively supervise the team”. Whereas the Claimant alleges lack of fair hearing in the investigation that led to this conclusion; evidence before me shows that the Claimant had the opportunity to state his position in the course of the investigation.
25. In reaching this conclusion, I refer to exhibit C18 – letter titled COMPLAINT TO NATIONAL PENSION COMMISSION ON FORCED RESIGNATION OF ARM PENSION HEAD OF BENEFIT ADMIN dated 15th April 2016. That letter shows an acknowledgment on the part of the Claimant that he indeed stated his case during the investigation. It states in part:
1) That on the 10th of March 2016, the MD Wale Odutola sent an email that I should come to the Head Office for a meeting. On getting to his office, Ade Head of IT and the MD opened the Gmail account of a Benefit Staff (Daniel Daramola) and showed me mails with Client details sent out from this email. I was shocked seeing the mails. The next question I was asked was; How come I did not know that Daniel was sending Client data using his mail? I told them there is no way I could know if he was sending out mails from either his Gmail account or from his ARMP outlook account because this is a case of data theft. Corona later confirmed he also used his ARM Pension Outlook to send out Client details.
2) That on the 13th of March, 2016, the MD called me again that I should submit my bank details that a committee is carrying out a full audit of the Benefit Admin team. At this stage 12 out of 15 benefit admin staff system have been locked and with some staff suspension for two weeks and some taken to the Police Station. I sent my 2 account details to the MD and Corona by email.
3) That on the same 15th of March 2016, I got an email from Head of HR that I have been summoned by the Committee to explain what happened in the Unit. I met the committee member made up of the MD, Head of IT, Head of Compliance and Head Internal Audit and Head HR. ED Operation was invited into the meeting although he came very late. The Committee confirmed nothing was found in my 2 accounts neither from Insurance Companies or its agents.
4) The Committee asked that I explain what happened. Please see my explanation below:
a) I told the committee that I was disappointed I was just being invited when Corona already told one of my team member’s (Okon Udoeyo) details of the investigation as of 7th of March 2016.
b) I told them this is never about process fraud or negligence on my part because the approved SOP was followed in each of the annuity payment/transaction these processes include Compliance review and Authorised (that includes MD) signatory sign off before every payment.
c) I told them it was a data theft and that if anybody should know, IT should be the first.
d) I told them I have always complained about data security which led to a committee being set up for close to 2years without any outcome.
e) Corona said she had been suspecting some member of my team selling annuity and I said as a Compliance officer, I am surprised by her thought: she is supposed to have raised the issue if truly she had been suspecting.
f) Corona asked me what should be my punishment. I told her since is part of the committee they should decide.
g) The Committee complained that I have not changed the role of Daniel Daramola the man responsible for sending out client data in a while. I told them he had over time become very good in that role and the other staff in the unit can’t perform that role to my satisfaction. But immediately a new recruitment is made I will replace him. Even though we have been on this recruitment exercise since September 2015 when Management approved.
5) The committee brought up another issue by saying that one member of team said I knew about a certain annuity commission being paid to him around Dec 2013:
a) I told the committee I was selected to be in a cross-selling committee by Sadiq Mohammed our former MD in 30/04/2013……
b) I also told the committee that a Client came to Surulere Office with the intention….
c) After the transaction (which was the first and the only I was contacted on directly) was concluded the ARM Life staff that seats in the office Surulere called me as the Chairman of the committee and asked about the commission payment. I told her …
6) After all my explanations, the MD said the unit will be changed but he did not specify what and who will be changed. For the period of two weeks it was just 4 Benefit Admin Staff (3 in Lagos and 1 in Abuja) that was carrying the entire burden of the unit.
7) After the two weeks suspension was over only 1 staff was added to the ……
26. The above communication from the Claimant to the National Pension Commission, dated 15th April 2016 convinces me that the Claimant had the opportunity to state his position in the course of the investigation. This meets the requirement of fair hearing in a purely master and servant relationship such as existed between the parties in this suit. In AVRE v. NIPOST (2014) LPELR-22629 (CA) pg. 36-38, paras. B - F, the Court of Appeal held as follows on what constitutes fair hearing in a case of ordinary contract of service not backed by statute; as follows:
...before an Employer can dispense with the services of his Employee, all he has to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation against the Employee involves accusation of crime. See Arinze v. First Bank (supra) where this Court per Olagunju, JCA states the position quite clearly as follows-
"It seems to me from the perspective of the decisions on the powers of an Employer to dismiss summarily his Employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defense."
In this case, the Appellant was issued with a query - Exhibits J and P, to which he responded to in Exhibit K and it would appear that the Respondent did not find his explanation to same satisfactory and it exercised its power to dismiss him from its service..."
27. It is my candid opinion that in this case, the termination complied with the due requirement of fair hearing, in that the Claimant was given opportunity to state his position before the Defendant came to the conclusion that was expressed as the reason for his termination. Apart from this, the Defendant also complied with the Claimant’s contract in giving three months’ salary in lieu of notice. In all, I find that the Claimant’s termination was not wrongful.
Issue Three - Whether the Claimant is entitled to his reliefs.
28. To determine issue three; I shall take the reliefs sought by the Claimant seriatim.
I. Claimant’s first relief is for “A DECLARATION that the purported termination of the Claimant's appointment by the 1" Defendant by maliciously terminating the Claimant's appointment for having knowledge of cross-selling within ARM group by his subordinates which has been part and parcel of the 1" Defendant accepted practice policy handed down for compliance by its staffs including the Claimant is wrongful, wicked, oppressive, unlawful and null and void”. I have already found that the Defendant’s termination of the contract of the Claimant was not wrongful. The Claimant did not establish that it wass wicked, oppressive or unlawful. This relief therefore fails and is declined.
II. The Claimant’s second relief for “A DECLARATION that the purported termination of the Claimant's appointment, by the 1" Defendant, primarily for the offence committed by one DANIEL DARAMOLA for which he has been arraigned before Court 5. Magistrate Court, Tinubu Lagos State on Charge No. E143/2016 without any involvement, culpability liability on the part of the Claimant in the commission of the crime is invalid, ineffectual, null and void as same violates the Claimants' terms of contract of employment with the 1" Defendant”. In addition to my finding that the Claimant’s termination is not wrongful, the Claimant has not established that he was terminated for the offence committed by one Daniel Daramola; or how the termination violated the Claimant’s terms of contract. This relief is declined.
III. Relief three is for “A DECLARATION that the purported termination of the Claimant's appointment by the 1" Defendant without complying with the terms of contract of employment of the Claimant with the 1" Defendant is wrongful, unlawful, invalid, null and void and ineffectual”. The finding that the Claimant failed to show how the Defendant violated his contract of employment, appliiw to this relief. This relief also fails.
IV. The relief four for “A DECLARATION that the deliberate refusal of the 2 Defendant to release the report of the investigation of the Four (4) man panel of inquiry headed by PETER AGHAHOWA since July 2016 after several demands by the Claimant from release of same till date is wrongful, oppressive, unlawful and contravene the functions, powers and/or mandate of the 2 Defendant” is struck out, being against the 2nd Defendant, whose name has been struck out.
V. The relief five for “An ORDER setting aside, nullifying and/or voiding the said purported termination of the Claimant's appointment and accordingly mandating the Defendant to pay backlog of the Claimant's salary to him and other ancillary entitlements and promotion, if any, since April 2016, till date” fails as the Claimant’s termination has not been voided or nullified.
VI. Relief six for “AN ORDER directing and/or compelling the 2nd Defendant to make available and hand over to the Claimant the Report and/or outcome of its Four (4) man panel of inquiry headed by PETER AGHAHOWA carried out and concluded on the 15th day of July, 2016”, is struck out as a result of the striking out of the name of the second Defendant.
VII. Reliefs seven and eight fail, as a result of failure of the principal reliefs. This suit fails in its entirety and is hereby dismissed.
Judgment is entered accordingly. I make no order as to cost.
Hon. Justice Elizabeth A. OJI