IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

DATE: AUGUST 9, 2022                                            SUIT NO: NICN/ABJ/325/2019

BETWEEN                                 

KOMOLAFE OKUNOLA JOHN                                                                      CLAIMANT

AND

1.         RUTOTECH INTERNATIONAL LIMITED

2.         HUAWEI TECHNOLOGIES COMPANY

NIGERIA LIMITED                                                                 DEFENDANTS

3.         MR. KINGSLEY AZEKWOH                                                      

REPRESENTATION

Oluwaseyi Arowosebe for the Claimant.

S.E.Borlokor, with J.J. Momoh, Yinusa Abubakar for the 1^st and 2^nd Defendants.

                                                JUDGEMENT

Introduction and Claims

[1] The Claimant filed this complaint against the Defendants on 30^th October, 2019 together with the accompanying originating processes seeking the following reliefs:

1)    A Declaration that the termination of the employment of the Claimant from the 1^st Defendant without fair hearing is unconstitutional, null and void and of no effect.

2)    A Declaration that the acts of the 3^rd Defendant to wit: punching, beating, battering and brutalizing the Claimant in the face and body, resulting in injury to the Claimant are reckless and amount to degrading and inhuman acts.

3)    An Order of the Honourable Court recalling the Claimant into the 1^st Defendant and a further order directing the 1^st Defendant to pay the Claimant all his salaries and allowances from the time Claimant was purportedly dismissed on 08/09/2017 till the determination of his suit, i.e N130,000.00 (One Hundred and Thirty Thousand Naira) only monthly from September, 2017 till the determination of this suit.

4)    The sum of N100,000.00 (One Hundred Million Naira) only as general damages jointly and severally against the Defendants.

5)    The sum of N259,850.00 (Two Hundred and Fifty Nine Thousand, Eight Hundred and Fifty Naira) only being Claimant’s medical expenses.

6)    The sum of N160,000 (One Hundred and Sixty Thousand Naira) only being the cost of the broken iPhone 6 of the Claimant.

7)    The sum of N500,000 (Five Hundred Thousand Naira) only costs of this suit.

The 1^st and 2^nd Defendant entered appearance and filed their statement of defence and accompanying processes on 23^rd January 2020. The Claimant filed a reply to the 1^st and 2^nd Defendant on 22^nd February 2021. The 3^rd defendant did not enter appearance or file a defence.

Case of the Claimant

[2] The case of the claimant on the pleadings is that he is an employee of the first and second defendants and relies on the identity card and access card N0 7290 issued by the 2^nd defendant. The claimant avers that the 3^rd defendant is his senior colleague and supervisor in the 1^st defendant. The claimant stated that he was employed as a front line Engineer by the 2^nd Defendant on 1^st April, 2015 and outsourced to Qualiserve; and on 1^st July 2017 he was employed by the 1^st defendant as Network Operations Centre Engineer on a monthly salary of N130,000 (One Hundred and Thirty Thousand Naira) having been outsourced to it by the 2^nd defendant. The claimant stated that on 28^th August 2017 at about 11:06am, while on duty at the office of the 1^st defendant in Abuja, it was discovered that the link between Makurdi towards Ugbokolo was down. The claimant stated that he did escalations, first to the 3^rd defendant his supervisor who was in the office, and he subsequently escalated the matter to the field Engineers as the escalation matrix conformed.  

[3] The claimant stated that at about 12 noon on the same day, the link came up; and that at this time, the 3^rd defendant had been using vulgar language towards him but he  managed the situation by ignoring the provocative utterances of the 3^rd defendant. The claimant stated that he was able to get all the resolution details, closed the opened ticket, the also sent an incident report immediately to the 3^rd defendant, his supervisor and carried out other instructions given to him by the 3^rd defendant. The claimant stated that the 3^rd defendant kept using vulgar words on him, but he did not reply him. That the only response from him to the provocations of 3^rd Defendant were: “I know you don’t have issue with me but if you have issue with Mr. Olanrewaju, kindly resolve and let us work as a team”. The claimant stated that after these words he received series of punches on his eyes region. The 3^rd defendant brutalized him in the presence of Mr. Olanrewaju Ojelabi, the then National Fiber Manager of the 2^nd defendant. The claimant stated that while he   was being beaten and brutalized by the 3^rd defendant, his iPhone 6 valued at N160,000.00 (One Hundred and Sixty Thousand Naira) got broken.

[4] The claimant averred that he was traumatized having been beaten and battered in the course of carrying out his professional duties by the 3^rd defendant. The claimant stated that he sent an email to the management of the 1^st and 2^nd Defendants, reporting the incident. The email was addressed to Mr. Gadissa (Huawai Project Manager), and copied: Mr. Sumata Kumar Ray (Huawai Project Director), Mr. Olanrewaju Ojelabi, Liuquancheng (Ice) and the 3^rd Defendant, the supervisor who had assaulted him among others. The claimant stated that the email generated a number of replies and responses from Mr Sumata Kumar Ray, Olaitan Omotayo, Ngozi Ofoedu. On 30^th August 2017, the claimant stated that he went to the Federal Staff Hospital, Gwarimpa, Abuja because of the severe pains he felt in his eyes, toes, and body. He was examined and found to have  second degree multiple injuries, and was placed on analgesics and antibiotics; and advised to see an ophthalmologist.

[5] The claimant stated that he went to Unique Eye Centre, Garki, Abuja for further examination and was required to undergo an Optical Coherence Tomography (OCT) test for which he was referred to Ilari Eye Clinic Dawaki, Abuja. The claimant stated that he went for the test and was prescribed drugs which he bought, and he used. He recovered and returned to work. The claimant stated that on 8^th September 2017 during work hours, he received a query by email signed by Ngozi Ofoedu, the Head Admin/HR of the 1^st defendant and was required to respond to same within 2 hours which he did and reiterated what transpired on the 29^th August 2017. That few minutes after his response to the query, he received a letter of termination by email signed by the same Ngozi Ofoedu. The claimant stated that he was not paid his salary for the month of September 2017 and for subsequent months till date.

[6] The claimant averred that he did all he could to get redress to no avail. That he reached out to Citizens’ Gavel Foundation for Social Justice to act on his behalf, and the   organization wrote letters of demand for payment of up to date salaries to the 1^st and 2^nd defendants in their Abuja and Lagos offices. The claimant stated that the termination of his employment from the 1^st defendant without fair hearing and without following the due process of law is a gross breach of his fundamental rights as set out in the labour laws, is discriminatory in the extreme and is inconsistent with the 1999 Constitution. He stated that the actions of the defendants are null, void, and of no effect; and that in the circumstance of this case, he is entitled to be recalled to the 1^st defendant and paid his benefits/entitlements from the date of the termination of employment till date and after the judgement.

[7] In reply to the 1^st and 2^nd defendants statement of defence, the claimant stated that the parties are properly named on all processes. He stated that both the 1^st and 2^nd defendant share the office address at NPDHC Building, 1490 Samuel Ademulegun Avenue, CBD, Abuja. The claimant averred that the 2^nd defendant was not his employer at the material time but that he had once worked for the 2^nd defendant. The claimant stated that he and the 3^rd defendant did not fight in the 2^nd defendant’s office and he did not engage in any act of gross misconduct. That rather, the 3^rd defendant assaulted and brutalized him in the presence Mr Olanrewaju Ojelabi, the National Fibre Manager of the 2^nd defendant right in the same office shared by all the defendants, while carrying out his duties for which he was employed by the 1^st defendant. That the query issued him attempted to distort the true facts of the events of 29^th August 2017 by saying there was a case of fighting in the office environment on 31^st August 2017; and he corrected the erroneous impression in his response. The claimant stated that there was no fact finding investigation before he was queried and his employment terminated.

[8] The claimant (CW1) and Olanrewaju Ojelabi (CW2) testified. They adopted their respective statements on oath and relied on their admitted documents. In cross-examination, the claimant informed the court that he had letters of employment from the 1^st and 2^nd defendants and that they paid him salaries. CW1 clarified that both defendants did not pay him salary each month; that Huawei Technologies the 2^nd defendant first paid him salaries from 2015 – 2017, then he was moved to Rutotech International Ltd the 1^st defendant which is under the 2^nd defendant. CW1 told the court that from 2017 till his employment was terminated, he received his salary from the 1^st defendant. CW1 told the court that he worked at the office of the 2^nd defendant and the 2^nd defendant issued him an identity card and access card. Upon being shown exhibit C2, CW1 stated that the mail was a confirmation from Etisalat granting him access.

[9] The claimant (CW1) told the court that the 3^rd defendant brutalized and assaulted him in his eye region, and he was treated for chest pain. He said he was issued a query by the 1^st defendant which he responded to before his employment was terminated by the 1^st defendant. The claimant told the court that he knows Mr Olanrewaju Ojelabi, and confirmed that the 1^st defendant contacted him to enquire about the happenings on the day. The claimant told the court that his employment was terminated on grounds of  misconduct. He said the 3^rd defendant is an employee of the 1^st defendant and that they both worked for the 2^nd defendant. The claimant stated that the 1^st and 2^nd defendants did not engage him to fight; and he agreed that the 1^st and 2^nd defendant did not instruct the 3^rd defendant to assault him. The claimant said he and the 3^rd defendant were both working for the 2^nd defendant and that it was a work related issue that resulted in the assault by the 3^rd defendant.

CW2 in cross-examination told the court that he was an outsourced staff of the 2^nd defendant and voluntarily resigned in August 2018. He stated that his employer was Lightening Networks. CW2 confirmed that he knows the claimant as an outsourced staff, and his employer was the 1^st defendant. CW2 told the court that he observed that the claimant and the 3^rd defendant exchanged words in a heated argument, and he saw the claimant was knocked to the ground and his eye glasses damaged. CW2 told the court that it was a case of one person beating up another. CW2 said the claimant reported the incident to Huawei Galaxy Backbone who were not the 3^rd defendant’s employers

Case of the 1^st and 2^nd Defendants

[10] The 1^st and 2^nd defendant’s state that the 1^st defendant (Rutotech International Limited) and 2^nd Defendant (Huawei Technologies Company (Nigeria) Limited) state that the 1^st defendant is named/endorsed as the 1^st defendant on the claimant’s form of complaint, but erroneously named/endorsed as the 2^nd defendant in the claimant’s “complaint of the claimant”, whereas the 2^nd defendant is named/ endorsed as the 2^nd defendant on the claimant’s form of complaint, but erroneously named/ endorsed as 1^st defendant on the claimant’s “complaint of the claimant”. The 1^st and 2^nd Defendant contend that the endorsement of the parties to this suit on the form of complaint is at variance with the endorsement of the parties on the “complaint of the claimant/statement of claim”, incurably defective and as such incompetent and is liable to the dismissed.

[11] The case of the defendants is that the claimant was an employee of the 1^st defendant, and has never at any time been employed by the 2^nd defendant who did not issue access card No 7290 to the claimant. The 2^nd defendant stated that the access card No 7290 was issued to the claimant by Emerging Markets Telecommunications Service Limited (Etisalat) for the purpose of granting him access in to Etisalat premises is to enable him perform his work as an employee of the 1^st defendant under a subcontract agreement  between the 1^st and 2^nd defendant whereby the 1^st defendant contracted to provide services to the 2^nd defendant. The 1^st defendant further states that it only provides services to the 2^nd defendant. The 1^st and 2^nd defendants stated that the 3^rd defendant was not their employee; and the 2^nd defendant averred that it never employed the claimant and the 3^rd defendant. That the claimant and 3^rd defendant each provided services on the 2^nd defendant customer’s project, as part of the responsibility assigned to them by their  employers.

[12] The 2^nd defendant further stated that the employer of the claimant and the 3^rd defendant signed a subcontract with the 2^nd defendant whereby the 2^nd defendant subcontracts work to the said employers. In fulfilment of their contractual obligations to the 2^nd defendant, the employers of the claimant and the 3^rd defendant assigned work to them on its customer’s project. The 2^nd defendant stated that both the claimant and the 3^rd defendant are not its employees and worked for their respective employers in its customer’s project. The 2^nd defendant stated that it does not know the 3^rd defendant’s address and that the 3^rd defendant does not share the same office address with it. The 1^st defendant stated that it is not the employer of the 3^rd defendant and does not know the address of the 3^rd defendant. The 2^nd defendant stated that it has never at any time employed the claimant or outsourced him to Qualiserve or any other party; and did not at any time send any notice of employment to the claimant. The 2^nd defendant averred that it never at any time employed the Claimant and did not outsource the claimant to the 1^st defendant.

[13] The 1^st defendant admitted that it employed the claimant as a Network Operations Center Engineer and denied that the claimant was outsourced by the 2^nd defendant. The 1^st defendant states that it signed a subcontract agreement with the 2^nd defendant for provision of telecommunication service and by virtue of the subcontract agreement, it assigned the claimant to work in the 2^nd defendant customer’s project. The 2^nd defendant states that the claimant does not report his daily work activities, and does not supervise or control the manner in which the claimant performs his responsibilities. The 2^nd defendant stated that the claimant and the 3^rd defendant did not fight in its office and that it only became aware of the incident when the claimant sent an email to its 2^nd employees but was referred back to his employer as it was not its responsibility to handle issues relating to the claimant’s employment. The 2^nd defendant further stated that it mentioned to the claimant in its mail dated the 30^th August, 2017 that his violent actions in the work environment were totally forbidden.

[14] The 1^st defendant stated that escalation of faults to supervisors and field Engineers was the duty and responsibility of the claimant, and that the claimant engaged and indulged in acts of insubordination, use of vulgar language on his superior and fighting in the office environment.  The 1^st defendant stated that the acts of insubordination and fighting in the office environment amount to gross misconduct in the 1^st defendant’s company policies; and that the claimant knew and as stated in the letter of appointment that acts of gross misconduct attracts summary dismissal. The 1^st defendant stated that it investigated the allegations contained in the claimant’s email; and that the claimant never informed it of any injury he sustained at the work place or at all, nor did the claimant produce a medical report or certificate issued by a registered Medical Practitioner as required of him in the event of any injury and as stipulated in his letter of appointment. The 1^st defendant stated that the claimant was issued a query by its Head of Admin/HR and that the claimant’s response to the query, was a face saving -response and economical with the facts and circumstances of the event of 29^th August 2017 as reviewed from fact finding investigations.

[15] The 1^st defendant averred that the letter of termination was an outcome of the report from the fact finding investigations which revealed that the claimant engaged in acts of indiscipline, insubordination, fighting and incidence of violence at the work premises, an act which amounts to gross misconduct. That by virtue of the letter of appointment, it reserves the right to summary terminate the claimant’s employment on grounds of such gross misconduct. The 1^st defendant stated that having discovered from its investigations and the claimant’s response that he breached the company policy, the claimant’s appointment was terminated on grounds of gross misconduct. The 1^st defendant further stated that the claimant was directed to return all its properties in his possession which he has failed to do, and has continued to detain the items till date despite repeated demands. That the claimant for the month of September, 2017 worked for the 2^nd defendant customer’s project for 8 (eight) days only; and that the continued detention of the 1^st defendant’s access cards and properties, and the failure of the claimant to conclude the exit processes has resulted in non payment of his salary for the mouth of September, 2017.

[16] The 1^st defendant averred that the claimant was given fair hearing and that the due process of the law was followed before the termination of his employment. The 1^st defendant stated the claimant was given the opportunity to be heard in his response to the  query issued to him. The 1^st defendant averred further that fighting in the premises of its clients (Emerging Markets Telecommunications Services Limited (Etisalat), engaging in acts of indiscipline, insubordination and incidence of violence amounts to gross misconduct, and as such the claimant is not entitled to any benefit or entitlement. The 1^st defendant stated that the termination of the claimant’s employment was not wrongful, discriminatory and/or in violation of the claimant’s right to fair hearing or at all. The 2^nd defendant averred that it is not the employer of the claimant, did not terminate the claimant’s employment, and cannot recall the claimant into any employment position. The 2^nd defendant stated that it has never paid the claimant any employment benefit, remuneration or entitlement and does not owe the claimant salaries. The 1^st and 2^nd defendants both stated that the claimant is not entitled to any of the reliefs sought.

[17] The 1^st and 2^nd defendants called two witnesses, Omotayo Olaitan (DW1) HR Manager, and Adebayo Akinsulire (DW2) Senior HR Manager. They both adopted their statements on oath and relied on the defendants admitted documents. DW1 confirmed that the 2^nd defendant issued an access card to the claimant; and denied that the claimant worked for both the 1^st and 2^nd defendant at various times. DW1 told the court that the claimant was involved in acts of insubordination against a superior officer in the office, not the 3^rd defendant. DW1 told the court that the 3^rd defendant has no relationship with the 1^st and 2^nd defendant; and that the claimant reported the assault after he engaged in a fight in the office. DW1 stated that it is correct that the claimant’s report (exhibit D4) was against the 3^rd defendant his supervisor. DW1 said the 1^st defendant investigated the incident but she could not recall if the 1^st defendant reached out to Mr Ojelabi. DW1 agreed that it was wrong for the sole witness to be ignored. She denied that the 1^st defendant owed the claimant; and admitted that the 1^st defendant did not give the claimant 14 days notice because the claimant’s employment was terminated on grounds of gross misconduct. DW1 confirmed that on the day of the fracas, she was not present as she was away in Lagos. She said she was told about the happenings from reliable sources as she did not witness any of it. DW2 informed the court that he was not present on the day the fracas happened between the claimant and the 3^rd defendant.

Final Address

[18] The 1^st and 2^nd defendant’s final address is filed on March 23, 2022. The claimant’s final address is dated 10^th May 2022 and filed the same day. The parties adopted their respective final addresses.

[19] Learned counsel to the 1^st and 2^nd defendants raised four issues for determination as follows:

1.      Whether the claimant who admitted being issued a query over gross misconduct and responded to the said query by the 1^st defendant can still be heard complaining of lack of fair hearing?

2.      Whether the claimant’s employment was wrongfully dismissed and whether the claimant, in the circumstances has sufficiently discharged the onus that his employment was wrongfully terminated.

3.      Whether from the reliefs sought and the facts and evidence before this Honourable Court, there is a reasonable cause of action against the 2^nd defendant.

4.      Whether the 1^st and 2^nd defendants can be held vicariously liable for the actions of the 3^rd Defendant, a non-employee of the 1^st and 2^nd defendants, for the alleged assault on the Claimant?

[20] Learned counsel to the 1^st and 2^nd defendant on issue 1 submitted that on the evidence the claimant who was given the opportunity to defend himself in his response to the query, cannot complain of not being afforded an opportunity to defend the same allegation citing Ahmed V. Abu & Anor (2016) LPELR-40261 (CA), Military Gov. Lagos State v. Adeyiga (2001) FWLR (Pt. 83) 2137 at 2155-2156; News Watch Comm. Ltd v. Atta (2006) 12 NWLR (Pt.993) 144 at 171- 175. He submitted that the claimant’s response to the query was not satisfactory to the 1^st defendant as the claimant did not respond appropriately to the issues raised in the query which led to his summary dismissal for acts of gross misconduct.

[21] On issue 2, learned counsel submitted that the claimant admitted that only the 1^st defendant employed him and issued him a letter of appointment not the 2^nd defendant. That his letter of appointment defines the terms and conditions of his employment citing   Faturoti v. University of Lagos (2016) 65 N.L.L.R Page 790 At 792. He submitted that   an employer has the unfettered right to dismiss an employee for gross misconduct in accordance with the conditions of service citing Nwobosi v. A.C.B LTD (1995) LPELR-2121 (SC). He submitted that misconduct is what the employer considers to be so, and he cited Oyedele v. Ife University Teaching Hospital Complex Management Board (1990) 6 NWLR 194 at 199 Para D. Counsel submitted that the claimant has failed to prove that his employment was terminated or breached by the 1^st defendant contrary to the contract of service.

[22] On issue 3, learned counsel referred to Uwazuruonye v. Governor of Imo State & Ors (2012) LPELR 20604 (SC) for the meaning of cause of action. He submitted that  reliefs (i), (ii), and (iii) are unconnected and unrelated to the 2^nd defendant; and reliefs iv, v, vi and vii which are ancillary to reliefs i, ii and iii are also unconnected to the 2^nd Defendant and should fail against the 2^nd defendant relying on G. B Ollivant (Nig) Ltd v. Agbabiaka (1972) 2. S.C. He submitted that since there is no cause of action against the 2^nd defendant, it was wrongly joined as a party to this suit.

[23] On issue 4, learned counsel submitted that vicarious liability only exists in a situation where it is established that there is a master servant relationship. That for an action of vicarious liability to succeed, the following conditions must be established: a tort must have been committed by the employee; the tort the employee must have been in the employment of the employer; the tort must have been committed in the course of the employment of the employee. He cited Komolafe V. IGP & Ors (2021) LPELR 56147 (CA) 18-19 Paras F-B and argued that the 3^rd defendant was not an employee of the 1^st and 2^nd defendants. The 3^rd defendant was the claimant’s supervisor at a customer’s company; and the customer Etisalat was not joined as a party to this suit. That accordingly, reliefs v, vi and vii must fail as they are, at best, acts of the 3^rd defendant who is not in the employment of the 1^st and 2^nd defendants and has not been shown to be their agent.

[24] Learned counsel to the claimant submitted the following issues for determination                                                                                   

Whether in the light of the entirety of the evidence led in this Honourable Court the claimant is entitled to the reliefs sought?

[25] He began by replying to the issues raised by the 1^st and 2^nd defendants. It was his submission that the fact that the claimant was brutalized by the 3rd defendant was not shaken throughout the trial, even under cross examination of CW1. He submitted that it is no longer the position that employers have the power to hire and fire without stating reasons. That it is contrary to International Labour Standards for employers to terminate the employment of their employees without stating reasons as the defendants attempted to do citing Afolayan Aderonke v. Skye Bank, (unreported) Suit No. NICN/IB/08/2015 judgement delivered on May 17, 2017, Aloysius v. Diamond Bank Plc (2015) 58 N.L.L.R (Pt.199) 92. Counsel submitted that on the evidence, there is a reasonable cause of action against the 2nd defendant, being the employer of the 3rd defendant who shared the same business premises with the 1st defendant. He cited Oyewumi Oyetayo v. Zenith Bank Plc. (2012) 29 NLLR (Pt. 84) 370 (NIC), Union Beverages Ltd. V. Pepsi Cola International Ltd (1994) JELR 44691 (SC), Mr. Morrison Owupele Inimgba v. Integrated Corporate Services Ltd. & Anor (2015) 57 NLLR (Pt. 195) 268 (NIC), Anthony Agum v. United Cement Company Ltd (UNICEM) Anor Suit No: NICN/CA/71/2013, (unreported) delivered on March 3, 2017.

[26] Learned counsel submitted that the claimant has proved to the court the standard required by law and he is entitled to the reliefs sought. He submitted that on the evidence adduced the claimant was not given notice or paid his salary in lieu of notice as admitted by the 1^st and 2^nd defendants in their pleadings, and therefore the termination is wrongful citing Bello Ibrahim v. Eco Bank Plc Suit No. NICN/ABJ/144/2018, (unreported) judgment delivered December 17, 2019, Chukwumah v. Shell BP Ltd 1993 LPELR-864 SC at 28. Counsel further urged the court to discountenance the evidence of DW2 as it is in all respect hearsay evidence. He submitted that the evidence adduced by DW1 is in favour of the case of the claimant.

[27] Learned counsel submitted that the 1^st and 2^nd defendants failed or willfully refused to call the supervisor of the claimant, Kingsley Azekwoh, the 3rd defendant who assaulted the claimant and breached his dignity and right to fair hearing and as protected under Sections 34 and 36 of the 1999 Constitution  (as amended) respectively. He stated that the actions of the 3^rd defendant led to the wrongful termination of employment of the claimant. He urged the court to invoke the provisions of Section 167 (d) of the Evidence Act 2011 as the 3^rd defendant is well known to the 1st and 2nd Defendants. He cited  Etukudo Ekefere Nsima Vs Nigerian Bottling Company (2014) LPELR 22542 CA. It was his submission that the defendants did not tender any document or lead any evidence in defence other than the testimony of the DW1 and DW2 who did not directly witness the breach complained. That it is a settled principle of law that pleadings do not constitute evidence no matter how beautifully couched citing Okpoko Community Bank Ltd & Anor Vs Igwe (2012) LPELR 19943 CA Pages 5-6, Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited (2006) 1 NWLR (Pt.983) 585.

[28] Learned counsel submitted that the claimant was denied a fair hearing. That it is well settled in law that any proceeding conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. He cited Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc. (2008) All FWLR (pt. 403) 1240 Abubakar Audu v. FRN (2013) 53 NSCOR 456 at 469, Nwokoro V. Oruma (1990) 3 NWLR (Pt.136) 22. He finally submitted that the claimant has sufficiently discharged the burden of proof placed on him by the law and is entitled to the reliefs sought.

            Decision

[29] I have carefully considered the processes filed, the evidence adduced, written submissions and authorities cited by the parties. I will begin with the preliminary issue raised in the pleadings by the 1^st and 2^nd defendants that the endorsement of the parties to this suit on the general form of complaint is at variance with the endorsement of the parties on the statement of facts and so is incurably defective, incompetent and is liable to be dismissed. The 1^st defendant (Rutotech International Limited) and the 2^nd defendant (Huawei Technologies Company Limited) on the complaint are erroneously endorsed on the statement of facts as Huawei Technologies Company Limited, 1^st defendant; Rutotech International Limited, 2^nd defendant. This is a non-issue as there is no mistake in the pleadings as to whom the parties are; specifically that 1^st defendant is Rutotech International Limited and the 2^nd defendant is Huawei Technologies Company Limited. All other processes have followed the endorsement on the general form of complaint.

[30] It is the law that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, section 131 (1) & (2) of the Evidence Act 2011, see Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255. The claimant has placed before the court email trail and employment notice (exhibits C2 and C3), letter of employment (exhibit C4), notice of assault email trail (exhibit C5), query (exhibit C9), response to query (exhibit C10), letter of termination (C11). The issues that arise for determination are as follows:

1.      Whether the 1^st and 2^nd defendants are co-employers of the claimant?

2.      Whether the 1^st defendant established the reason it terminated the claimant’s employment?

3.      Whether the claimant’s employment was validly terminated?

4.      Whether the claimant is entitled to an award of damages?

 [31] The claimant has asserted that he is an employee of both the 1^st and 2^nd defendants.  The letter of appointment dated June 13^th, 2017 (exhibit D4) issued by the 1^st defendant Rutotech International Limited refers to the claimant’s application, subsequent interview, and offer of employment as a Network Operations Centre Engineer. His employment was deemed to have commenced on 1^st July 2017. There is no letter of appointment by the 2^nd defendant Huawei Technologies Company to the claimant in support of his claim that he is an employee of the 2^nd defendant as well. The email trail (exhibits C2 and C3) between Mar 2015 and April 2015 requesting access for the claimant who is referred to as a “new resource joining Huawei” is not evidence of employment by the 2^nd defendant. Furthermore, there is no mention in his letter of appointment by the 1^st defendant (exhibit D4) that the claimant was outsourced to it by the 2^nd defendant. More importantly, there are no averments in the pleadings that state or suggest a parent company/subsidiary relationship between the 1^st and 2^nd defendants. The claimant has not established a co-employer relationship. I find that the 1^st defendant is the only employer of the claimant; and I so hold.

[32] The claimant has in his pleadings and deposition stated that the 3^rd defendant is a senior colleague and his supervisor in the 1^st defendant; and that his last known address is at NPDHC Building, 1490 Samuel Ademulegun Avenue, Central Business District, Abuja, Nigeria. Both the 1^st and 2^nd defendants in their deposition deny that the 3^rd defendant is their employee. The 2^nd defendant has admitted that its address is at NPDHC Building, 1490 Samuel Ademulegun Avenue, Central Business District, Abuja, Nigeria; and the evidence of DW2 is that the 2^nd defendant does not share this address with the 3^rd defendant and does not know his address. DW2 testified that the employers of the claimant and the 3rd defendant signed a subcontract with the 2nd defendant whereby the 2nd defendant subcontracts work to them. That in fulfillment of their respective contractual obligations, the employers of the claimant and the 3rd defendant assigned work to each of them on the 2nd defendant’s customers project. DW2 testified that both the claimant and the 3rd defendant are not employees of the 2nd defendant. I believe his testimony.

 [33] Consequently, I find that there is no cause of action disclosed against the 2^nd defendant. This suit against the 2^nd defendant is hereby dismissed.

[34] DW1 testified that the 1^st defendant has no relationship with the 3^rd defendant. The 1^st defendant has referred to him as the claimant’s ‘supervisor’ and ‘superior’ in the pleadings. It is settled law that parties are bound by their pleadings. DW1 in her evidence has also referred to him as the claimant’s supervisor. In the email trail (exhibit C5), the 3^rd defendant is referred to by his first name ‘Kingsley’; and particularly by Ofoedu Ngozi (Mrs) Head HR Admin in her advice to the claimant to “avoid any kind of face off with Kingsley whether in the office environment or elsewhere so that we can continue to have a peaceful atmosphere in the office environment”. With all the evidence, how can the 1^st defendant deny any relationship with the 3^rd defendant? Does the 1^st defendant expect this court to believe that it does not know the 3^rd defendant, or have a ‘work’ relationship with the 3^rd defendant having denied that he is not its employee? It appears to me that the 1^st defendant is shielding the 3^rd defendant. From the pleadings of the 1^st defendant, the email trail on the assault (exhibit C5), and the evidence of DW1, it is clear that the 1^st defendant has a ‘working’ relationship of some sort with the 3^rd defendant.

[35] The claimant has complained that the 1^st defendant terminated his employment without him being given a fair hearing and that it is unconstitutional, null and void. At this stage it is pertinent to reproduce the defendant’s letter dated September 8, 2017 terminating the claimant’s contract of appointment:

Dear John,

LETTER OF TERMINATION

Your response to the query issued to you on the 8^th of September, 2017 is not satisfactory.

Your employment with Rutotech International is hereby terminated today 8^th for misconduct in line with your terms of employment.

Attached is an exit clearance form. Please complete and send back to us today with all authorized signatory.

Kindly hand over all Rotutech’s properties e.g (Huawei access cards, Rutotech staff ID card, HMO card, working materials/equipment etc) in your possession to our liaison officer in Abuja (Clara 07016454645).

Thank you.

Yours faithfully,

For Rutotech International

Ofoedu Ngozi

 [36] The 1^st defendant has stated the reason for the termination of the claimant’s employment as misconduct. The law, see Olatunbosin v NISER Council [1988] 3 NWLR (Pt 80) 25; international best practices in labour, employment and industrial relations imposes on the employer a duty to justify the reason given for the termination of an employees employment. The evidence before the court is that the 1^st defendant assigned the claimant to work in the 2^nd defendant’s customer’s project. The 3^rd defendant was the claimant’s supervisor on the project. The eye witness to the incident of 29^th August 2017, is CW2. His evidence is that he witnessed the claimant being beaten up by the 3^rd defendant at the Network Operating Centre situated within the premises of Galaxy Backbone at 61, Ademola Adetokunbo Crescent, Wuse II, FCT Abuja. CW2 told the court he witnessed an exchange of words and heated argument between the claimant and the 3^rd defendant. That there and then the 3^rd defendant punched the claimant in the face and other parts of his body damaging his glasses and knocking him to the ground. CW2 said he made several efforts to calm the situation but the 3^rd defendant did not stop hitting the claimant, and that the punching lasted for 3 to 5 minutes before the 3^rd defendant stopped.

[37] CW2 stated that he observed that the claimant did not hit the 3^rd defendant in retaliation. He told the court that some days later he received a call from the 1^st defendant on the incident and he explained to the caller that it was not a fight between two adults, but a case of assault on the claimant by the 3^rd defendant; and that the claimant did not raise his hand against the 3^rd defendant. The evidence of DW1 is that the claimant was involved in insubordination against a superior officer in the office; she said the superior officer was not the 3^rd defendant but failed to say who the superior officer was. I do not believe the evidence of DW1 on this. DW1 admitted that the claimant made a report against the 3^rd defendant. She said the 1^st defendant investigated through several means but she could not recall the 1^st defendant reaching out to CW2 the sole eye witness. She agreed said that it would be wrong for the sole eye witness to be ignored, and admitted that she was not present at the incident. The 1^st defendant failed to place before the court the report of its fact finding investigation on the incident which it pleaded. The evidence of CW2 under cross-examination was not impugned. I believe his evidence. I find that the 3^rd defendant physically assaulted the claimant in the course of his official duty for the 1^st defendant; and I so hold. 

[38] The claimant reported the assault to officers of the 1^st and 2^nd defendants as evidenced by the email trail (exhibit C5). His email to the 1^st defendant was acknowledged by DW1 who stated: “my colleague Bunmi will call you shortly to engage you on this matter”. The claimant was not called but issued a query on September 8, 2017 (exhibit C9) “A case of fighting in the office environment”. He responded by exhibit C10 stating that he was not involved in fighting but was severely brutalized by the 3^rd defendant. He was immediately issued the letter of termination on September 8, 2017. The claimant asserts that he was denied his right to a fair hearing. The question is was the claimant given the opportunity to be heard? By the claimant’s evidence the defendant issued him a query and he responded to the query before his employment was terminated. The Supreme Court in the case of Imonikhe v Unity Bank Plc [2011] 4 SC (Pt 1) 104 at 135; [2011] 12 NWLR (Pt 1262) 624 at 640 has held that where an employer accuses an employee of misconduct by way of a query and the employee answers the query before the employer takes a decision on the employee’s appointment, that satisfies the requirement of fair hearing. The claimant was given a fair hearing. His response was not satisfactory to the 1^st defendant. The 1^st defendant did not breach the claimant’s right to a fair hearing; and I so hold.

[38] From the totality of the evidence adduced, there was an altercation between the claimant and the 3^rd defendant his supervisor that led to the 3^rd defendant physically assaulting the claimant. It is an act of misconduct for the claimant to engage in an exchange of words and argument with his supervisor. By his conduct, the 1^st defendant was justified in its decision to terminate the claimant’s employment. However, the pertinent question is this; was the termination of the claimant’s employment in accordance with the contract of employment?

[39] The employment contract stipulates that either party may terminate the employment contract by giving 14 days notice in writing or payment of 14 working days salary. The 1^st defendant did not give the claimant 14 days notice or pay him salary in lieu of notice on September 8, 2017 upon termination of his employment. The law requires the 1^st defendant having terminated the claimant’s employment without giving notice as provided in the letter of employment must pay him at the time of termination salary in lieu of notice and promptly inform him, see Chukwumah v Shell Petroleum Development Co. Ltd [1993] 4 NWLR (Pt 289) 512. The letter of termination is silent on payment of salary in lieu of notice. The failure of the 1^st defendant to pay the claimant salary in lieu of notice on September 8, 2017 the day his employment was terminated is a breach of the employment contract. This breach is what makes the termination of the claimant’s employment wrongful; and I so hold. The claimant has led evidence to show that his monthly salary is N130,000 and this is admitted by the 1^st defendant. The 1^st defendant is hereby ordered to pay the claimant 14 days salary in lieu of notice in the sum of N65,000 (Sixty Five Thousand).

[40] The 1st defendant also failed to pay the claimant’s salary for the month of September 2017. This salary has been earned by the claimant and cannot be withheld under the guise that the claimant failed to conclude the exit processes. The claimant has testified that he does not have the 1^st defendant’s properties. The 1^st defendant is ordered to pay the claimant’s salary for the 8 days he worked in September 2017 in the sum of N49,523.81 (Forty Nine Thousand, Five Hundred and Twenty Three Naira, Eighty One Kobo).

[41] The claimant has given evidence that he was traumatized having been beaten and battered by the 3^rd defendant in the course of carrying out his professional duties. This was a work related issue; and the uncontroverted evidence is that the 3^rd defendant was the claimant’s supervisor. I have already found this fact established above. It is the law that a duty of care is owed by an employer to his employee/worker in the course of carrying out his duties, see St Helens Colliery Co v Hewitson [1924] AC 59 at 71, UAC (Nig) Ltd v Joseph Orekyen (1961) 1 ALL NLR 719. The claimant was physically assaulted and brutalized while performing the duty the 1^st defendant assigned him to do in the 2^nd defendant’s client office. The 1^st defendant owed the claimant a duty to provide medical care for him after he reported the assault. He has placed before the court photographs of his injuries, his medical reports from the Federal Staff Hospital Gwarimpa, Unique Eye Center, the payment receipts for the Optical Coherence Tomography (OCT) test and drugs used in his treatment. The claimant has also placed in evidence his broken Iphone and the purchase receipt. These are all in the realm of special damages that have been pleaded and proved. The 1^st defendant is ordered to pay the sum of N259,850.00 (Two Hundred and Fifty Nine Thousand, Eight Hundred and Fifty Naira) being the claimant’s medical expenses; and the sum of N160,000 (One Hundred and Sixty Thousand Naira) being the cost of the broken iPhone 6 of the claimant.

[42] The claimant has also made a claim for general damages. I have found that the 1^st defendant breached the employment contract, and till date failed to pay the claimant’s earned salary, and salary in lieu of notice as provided in the employment contract. Furthermore, the claimant has placed before the court evidence of his trauma as a result of the physical assault of the 3^rd defendant in the course of his employment seen in the medical reports exhibits C7 and C8. The claimant is entitled to an award of general damages against the 1^st and 3^rd defendants pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006. In this regard therefore, the sum of N780,000.00 (Seven Hundred and Eighty Thousand Naira) representing 6 (six) months salary is to be paid by the 1^st and 3^rd defendants jointly and severally to the claimant as general damages.

[43] For all the reasons stated above, I hereby Declare and make the following Orders:

1)    I declare that the termination of the employment of the Claimant from the 1^st Defendant is wrongful.

2)     I declare that the acts of the 3^rd Defendant Mr Kingsley Azekwoh to wit: punching, beating, battering and brutalizing the Claimant in the face and body, resulting in injury to the Claimant are reckless and amount to degrading and inhuman acts.

3)    The 1^st Defendant is to pay the Claimant 14 days salary in lieu of notice in the sum of N65,000.00 (Sixty Five Thousand Naira).

4)    The 1^st Defendant is to pay the Claimant salary for the 8 days he worked in September 2017 in the sum of N49,523.81 (Forty Nine Thousand, Five Hundred and Twenty Three Naira, Eighty One Kobo).

5)    The 1^st Defendant is to pay the Claimant the sum of N259,850.00 (Two Hundred and Fifty Nine Thousand, Eight Hundred and Fifty Naira) as medical expenses.

6)    The 1^st Defendant is to pay the Claimant the sum of N160,000 (One Hundred and Sixty Thousand Naira) being the cost of the broken iPhone 6.

7)    The 1^st and 3^rd Defendants are to pay the Claimant the sum of N780,000.00 (Seven Hundred and Eighty Thousand Naira) as general damages jointly and severally.

8)    Costs in the sum of N500,000.00 to be paid by the 1^st and 3^rd defendants jointly and severally to the Claimant.

9)    All sums are to be paid within 30 days. Thereafter, any sum outstanding shall attract interest at the rate of 15% per annum until fully paid.

Judgement is entered accordingly.

                                                ____________________________

                                                Hon Justice O.A.Obaseki-Osaghae