IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Date: March 14, 2023 Suit No: NICN/PHC/106/2019
1. Mr. Biobele Thomas
2. Mr. Levi T. Ibiama ---------------------------------- Claimants
1. Konfiyeybi Nigeria Limited ----------------------------------- Defendants
2. Hon. Prince Amaibi Hornby
I.S.B. Suku for the claimants
U. O. Ohanuna for the defendants
1. On September 12, 2019 the claimants instituted this action against the Defendants in this Court, seeking for the following reliefs:
i. A Declaration that the Claimants are employees of the 1st Defendant and that the contract of employment between the Claimants and the 1st Defendant is still subsisting.
ii. A Declaration that the 1st Claimant as staff of the 1st Defendant is entitled to the monthly salary of One Hundred and Fifty Thousand Naira (N150, 000.00) and this salary payment is owed from May 2018 to date.
iii. A Declaration that the 2nd Claimant as staff of the 1st Defendant is entitled to the monthly salary of Sixty Thousand Naira (N60,000.00) and this salary payment is owed from May 2018 to date.
iv. An Order directing the Defendants to pay to the 1st Claimant the monthly salary of One Hundred and Fifty Thousand Naira (N150,000.00) from May 2018 until the day of judgment in this suit.
v. An Order directing the Defendants to pay to the 2nd Claimant the monthly salary of Sixty Thousand Naira (N60,000.00) from May 2018 until the day of judgment in this suit.
vi. An Order for the payment of the sum of Ten Million Naira (N10, 000,000.00) to the Claimants by the Defendants jointly and severally as general damages.
vii. An Order for the payment of the sum of Five Hundred Thousand Naira (N500,000.00) to the Claimants by the Defendants as cost of litigation.
2. Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearance through their counsel and filed their Statement of Defence together with other defence processes.
3. The Case of the Claimants As Pleaded
The case of the claimants are that they were employees of the 1st defendant and that the 1st claimant served the 2nd Defendant as his “S.A” or Personal Assistant. The claimants averred further that during the course of their employment with the Defendants, they were diligent and dedicated to duty and were never found wanting for any reason. They went on that midway into their employment with the Defendants, they were asked to stop their official duties and after waiting on the Defendants for 14 months without being recalled to resume duty, they demanded in writing for their arrears of salaries. But that, instead of acceding to their request, the Defendants began to intimidate them with Police. They continued that the 1st Claimant was arrested and detained. Aggrieved by the attitude of the Defendants, the Claimants instituted this complaint against the Defendants.
4. The Case of the Defendants As Pleaded
The case of the Defendants is that the Claimants were employees of the 1st Defendant, but were dismissed from work for gross misconduct, after giving them opportunities to defend themselves on allegation of misconduct against them. The defendants went on that before the Claimants were summarily dismissed from the employment of the 1st Defendant, they were at different times queried for their actions and were given opportunity to defend themselves but they refused and/or neglected to respond to the said queries. The defendants averred that the Claimants were involved in illegal bunkering. To them, the Claimants are not entitled to any monthly salary neither are they entitled to any form of remuneration from the 1st Defendant from the date that their employment with the 1st Defendant was determined.
5. During hearing of the case, parties agreed that the case be argued on record under order 38 Rule 33 of the NICN (CP) Rules, 2017. The court subsequently directed counsel to the parties to file their respective Final Written Addresses in line with the Rules of this Court and they complied with the said direction.
6. Claimants’ Final Written Argument
In the Claimants’ Final Written Address, their counsel raised the following issues for the determination of the Court:
i. Whether between the Claimants and the Defendants who has succeeded in proving its case on preponderance of evidence to be entitled to judgment.
ii. Whether the purported dismissal of the Claimants as staff of Konfiyeybi Nigeria Limited was valid.
7. In arguing issue one, counsel submitted that the Claimants are employees of the 1st Defendant under the terms stated in paragraphs 5, 6, 7 and 8 of their Statement of Facts, referring to Employment Letters dated 28th July 2015 and 30th September 2015 and staff identity cards are also relied on, which fact of their employment was admitted in paragraph 1 of the Statement of Defence and the Written Statements on Oath of Mr. Ipalibo Braide and Adaye Hornby. Counsel submitted that it is trite law that facts admitted need no further proof, citing Section 123 Evidence Act and relying on: Wema Bank Plc v. I.I.T. Ltd  6 NWLR (Pt. 479) and Anason Farms Ltd v. NAL Merchant Bank Ltd  3 NWLR (Pt. 331) 241.
8. Counsel went on that the fact that the claimants were employed as staff of the 1st Defendants settles the fact that the claimants salaries’ ceased to be paid in 2018 are not denied by the defendants in their pleadings and evidence and that this remains binding on the defendants, citing Oceanic Bank Int’l Plc v. CSS Ltd  9 NWLR (Pt. 1305) 397 and Obmiami Brick and Stone (Nig.) Ltd v. ACB Ltd  NWLR .377.
9. On whether the contract of employment was at any time terminated, counsel submitted that by paragraph 11 of the Statement of Fact, the claimants were asked to temporarily cease official duties and that they would be informed of when to resume, citing Adusei v. Adebayo  3 NWLR 524; Oteki v state  4 A.C.L.R 401@403 and Mogaji v. Odofin  4 S.C. 91.
10. Counsel went on that the claimants received salaries up to the month of April 2018 while the defendants who rather contended that salaries were paid up to March and April 2018 respectively before it ceased, did not proffer any evidence in prove of the fact that the defendants paid salaries up to March and April 2018. Learned counsel continued that it is trite law he who asserts the existence of a fact has the onus to proof the existence of that fact, citing Intercontinental Bank Ltd v. Brifana Ltd  3 NWLR (Pt. 1316) 1; Section 134 of the Evidence Act 2011 and Ogudo v. State  11-12 (Pt. 1) SCM 209. Counsel contended that query issued to the claimants on 2nd April 2018 and 4th June 2018 and the dismissal letters purportedly issued on 11th April 2018 and 15th June 2018 were merely concocted for the purpose of this suit. He referred the court to paragraph 3 of their reply to the Statement of Defence.
11. Furthermore, the claimants contended that the onus is on the defendants to show that a complaint of illegal oil bunkering was made to the Police on 3rd August 2019 against the claimants by the defendants and that the defendants have failed to show by credible evidence that the claimants committed any offence which warranted their queries and their subsequent dismissal, citing Section 17 of the Labour Act.
12. Arguing issue two, counsel maintained that assuming but not conceding that the purported query letters dated 2nd April 2018 and 4th June 2018 were validly issued, counsel still contended that the Claimants could not be dismissed based on the said letters. He maintained that while the Defendants averred in the Statement of Defence and in their letter dated 19th August 2019 that the Claimants were involved in illegal oil bunkering, he argued that this allegation of crime is required to be proved by the Defendants beyond reasonable doubt.
13. Counsel submitted that it is trite that in a case where the dismissal of an employee is based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand; citing Savannah Bank Nig. Plc v. Fukokum  1 NWLR (Pt. 749) 544; Garba v. Unimaid 1 NWLR (Pt. 18) 550; S.B. Olarenwaju v. Afribank (Nig.) Plc.  FWLR (Pt. 72) 2008; Myetan v. Nifor  3 NWLR (Pt. 59) 48 and Anakason v. UBA Ltd  1 NWLR (Pt. 332) 357.
14. Also, counsel submitted that the claimants were not given the opportunity to defend themselves. That it is the law that a person who is accused of a crime cannot be lawfully dismissed by his employer without an opportunity to be fairly heard by a judicial body vested with criminal jurisdiction, citing Sofekun v. Akindele  5-6 SC 1; Udemah v. Nigeria Coal Corporation  3 NWLR (Pt.190) 447; Odagiee v. New Nigeria Bank Plc.  3 NWLR (Pt. 913) 513 and In Yusuf v. Union Bank of Nigeria Ltd  6 NWLR (Pt.457) 632.
15. Counsel continued that where the defendants wish to terminate the employment of the claimants, notice should be given to them in accordance with Section 11(1) of the Labour Act, citing Martins v. Braithwaite (Insurance Brokers) & co. Ltd  11 CCHCJ 52.
16. Defendants Written Arguments
From the Final Written Address of the Defendants, their counsel formulated a sole issue for the determination of the Court this way:
Whether, considering the pleadings and circumstances of this case, the Claimants are still employees of the 1st Defendant to be entitled to their claims.
17. Arguing this issue, counsel submitted that a willful disobedience of a lawful and reasonable order by an employee is a definite act of misconduct, which attracts the penalty of summary dismissal. This is because such willful disobedience is a reflection of a total disregard of an essential condition of contract of service namely, that the servant must obey a proper, reasonable and lawful order of the master, default of, which their contractual relationship cannot be expected to continue, citing U.B.N. Plc. v. Sores  11 NWCR (Pt. 1312) 550 at 573.
18. In addition, counsel contended that the Claimants willfully disobeyed the lawful regulation of the company by leaving their places of duty within Cowthorne Chanel 1, 2 & 3 in Degema Local Government Area of Rivers State and went to Akuku Toru Local Government of Rivers State on their own frolic, and for that reason, the Defendants are right by summarily dismissing the Claimants after finding them culpable for the alleged misconduct.
19. Counsel submitted again that before the claimants were dismissed, they were first given the opportunity to defend the allegations against them, but they were unable to deny same, having neglected to answer the queries issued to them by the 1st Defendants. He referred to paragraph 11 of the Statement of Facts; Ifeta v. SPDC (Nig.) Ltd  8 NWLR (Pt-983)585 at 590 ratio 3.
20. Counsel went on that the Claimants have not proved to the Court that they have been going to work, as a worker is entitled to his wages. They cannot also ask for payment of wages when they did not render any service. To counsel, the Claimants are not entitled to their reliefs, having not been able to prove that their employment was wrongfully terminated or that it is still subsisting, especially when the Claimants have admitted in paragraph 11 of their Statement of Facts that, “on or about May 2018, the Claimants were invited by the 2nd Defendants and they were asked to cease official duties temporally and that they would be informed when to resume duty, citing Spring Bank Plc v. Babatunde  5 NWLR (Pt. 1292) 83 at 87 ratio 3.
21. Counsel further submitted that the Claimants have contradicted themselves in several instances, should not be taken seriously, as they are not witnesses of truth; citing Adu v. Gbadamosi  6 NWLR (Pt. 1136) at 113.
22. COURT’S DECISION
I have gone through the facts of this case, the written arguments of counsel to the parties and their cited authorities, from all of these, I am of the firm view that the following issues need to be resolved by this Court between the parties:
i. Are the employments of the claimants with the Defendants still subsisting or they were validly dismissed?
ii. Are the claimants entitled to their salaries from May 2018 till date at N150,000.00 and N60,000.00 monthly respectively? Are they entitled to N10,000,000.00 as general damages and N500,000.00 as cost of litigation?
I have reflected above that parties argued this matter on record under Order 38 Rule 33 of the NICN (CP) Rules, 2017. Therefore, witnesses were not called but they addressed the Court on their frontloaded documents as their evidence.
What governs the employment relationship between the parties
The Employment Relationship between claimants and the defendants is a Private one, which is regulated by the Service Agreement or Conditions of Service. It follows that, only document(s) showing the Terms of the Employment that this Court is entitled to examine in order to determine the claimants’ entitlements in the service agreement. In this instance, the court can only look at the contract of service between the parties. The law is that, contract of service is the bedrock upon which the aggrieved employee must found his case, he succeeds or fails upon the terms thereof. See the cases of Sharu v. Federal Polytechnic Kaura Namoda & Anor  67 NLLR (Pt. 238) 143 at 165-166 para G-A and Gbedu v. Itie  3 NWLR (Pt.1710) SC 104 at 126 para F-H.
23.1. In paragraph 6 of the Statement of Facts, the claimants stated that they were given Letters of Employment, which they frontloaded. Copies these letters are at pages 26 and 29 of the record. Paragraph 6 a. of the Statement of Defence admits that the claimants were in the defendants’ employment at a point in time.
23.2. Furthermore, in paragraph 6 b. of the Statement of Defence, the defendants averred that they gave the claimants, copies of the 1st defendant’s Rules and Regulations. A copy of same is at pages 69 to 71 of the record. However, in paragraph 1 a. of Reply on Points of Law, the claimants denied being served with the 1st defendant’s Rules and Regulations while they were in the employment of the defendants. The defendants did not frontload the acknowledged copies of the said Rules & Regulations received by the claimants before the Court, neither did they prove in any other way that the claimants were served with the Rules and Regulations in question, and I so find.
23.3. In the circumstance, I hold that the claimants were not served the said Rules and Regulations. In addition, I hold that the documents evidencing that there was contracts of employment between the parties, is their letters of employment at pages 26 and 29 of the record. Again I hold that the respective rights, duties and liabilities of the parties in this case will be determined in line with the content of the said letters of employment of the claimants.
24.0. RESOLUTION OF ISSUES FRAMED BY THE COURT
25.0. Is the Employment of the Claimants still Subsisting or it is Determined?
In paragraph 4 of the 1st claimant’s letter of employment, it is stated that the employment will be on probation for three months. Within this period the 1st Defendant reserved the right to summarily dismiss or terminate the employment at any time with a two weeks’ notice. In paragraphs 11 to 16 of the Statement of Facts, it is the case of the claimants that the 2nd defendant asked them to cease official duties temporarily in May 2018 and that they will be invited to resume duty later. The claimants continued that they were denied access to the premises of the 1st defendant since May 10, 2018.
25.1. In paragraph 14 of the Statement of Defence, the defendants denied the facts that the 2nd defendant asked them to cease official duties temporarily in May 2018 and that they will be invited to resume duty later. The defendants avers further that both claimants were issued queries, which they refused to answer and as a result, they were dismissed. In response to the query letters and letters of dismissal in paragraph 3 of the reply to Statement of Defence, the claimants denied being issued with any query letter or letters of dismissal but that those letters of query and dismissal were concocted for the purpose of this suit.
25.2. Copies of the letters of query and dismissal are before the Court at pages 72 to 75 of the record. I find from the record of the Court that there is no evidence that these letters of query and dismissal were received by the claimants at any time. It is trite law that whosever desires any Court to give judgment as to his legal right or liability dependent on the existence of facts, which he asserts must prove that those facts exist. See the case of Nammagi v. Akote  3 NWLR (Pt .1762) SC 170 at 188, para C-E. The defendants in this instance are contending that claimants were issued query letters and letters of dismissal; they must prove to the satisfaction of the court that they actually served the claimants with those letters of query and dismissal. I find and hold that the defendants failed to do so in the case at hand. Hence, I further hold that the defendants did not query neither did they dismiss the claimants in this case.
25.3. However, on January 30, 2020; counsel to the claimants was served the defence pleadings and other processes including the letters of query and dismissal on behalf of the claimants. See page 81 of the record for proof of service of these processes. This means that the said letters of query and dismissal came to the knowledge of the claimants for the first time on January 30, 2020 and I so find.
25.4. In paragraph 4, the Letter of Offer of Employment at pages 26 and 29 of the record, it is stated that the claimants could be summarily dismissed in the event of any breach of the Terms of Employment, Embezzlement, Gross Negligence, Misconduct of any Act, which in the opinion of the Management of the 1st defendant, may bring the company into disrepute. In other words, the claimants could be summarily dismissed by the defendants if they are found guilty of breach of the Terms of Employment, Embezzlement, Gross Negligence and Misconduct of any Act.
25.5. The Letters of dismissal of the claimants are at pages 73 and 75 before the Court. Paragraphs 1, 2, 3 & 4 of each of these letters state thus:
You are by this letter dismissed from your employment with Konfiyeybi Nigeria Ltd owing to the following reasons:
1. For engaging in Acts connected with carriage of petroleum products against the regulations of the company.
2. For engaging in private security deals unapproved by Management with the identity of the company and during active working hours, against the instructions of the company.
Acts which amount to disobedience to lawful instructions and constitute an affront on the integrity of the company.
25.6. There is no evidence before the Court showing that the claimants were found guilty of any of the two alleged offences in these letters of dismissal. I have found above that the claimants became aware of their dismissal when their counsel was served with the defendants’ response to their complaint against them including those letters. And so, there is nothing before the Court to show that the claimants responded to the alleged queries. There is no evidence of any investigation of the said allegations neither is there anything showing that the claimants were allowed to defend themselves. Consequently, I hold that the defendants have failed to prove to the satisfaction of the Court that the claimants were validly dismissed from their employment on June 11 & 15, 2018 respectively as indicated on their letters. The Letters of Dismissal of the claimants at pages 73 and 75 are not valid and they are hereby set aside.
25.7. The above holding notwithstanding, the employment relationship between the parties is a private one and so, this Court cannot order their reinstatement to their positions with the defendants. In the circumstance, I hold that the wrongful dismissal of the claimants by the defendants evinces the defendants’ intention not to continue their employment relationship with the claimants again. Therefore, I hold that the defendants terminated the claimants’ employment with effect from January 30, 2020 when they became aware of the determination of their employment.
26.0. Are the claimants entitled to their salaries from May 2018 till date at N150,000.00 & N60,000.00 monthly respectively? Are they entitled to N10,000,000.00 as General Damages & N500,000.00 as Cost of litigation?
26.1. Are the claimants entitled to their salaries from May 2018 till date at N150,000.00 and N60,000.00 monthly respectively?
Reliefs a - e in paragraph 35 of the Statement of Facts are for declarations and orders that the claimants are entitled to be paid their salaries from May 2018 till date at N150,000.00 and N60,000.00 monthly respectively. I have held above that the claimants’ employment was determined on January 30, 2020. From the averment of the claimants in paragraphs 11 to 16 of the Statement of Facts, it is the claimants’ case that the defendants through the 2nd defendant instructed them to stop their duties temporarily and that they will be recalled to resume duty soonest and that they waited for the said recall which never came.
26.1.1. Therefore, the claimants instituted this action on September 12, 2019 against the defendants. Since the defendants neither determine the claimants’ employments between May 2018 and January 30, 2020 nor recall them to continue their work; in the eye of the law, the claimants are still seen as employees of the defendants. See the case of Longe v. First Bank of Nig. Plc.  LPELR-SC.116/2007  All FWLR (pt. 525) 259.
26.1.2. In the circumstance, I hold that the claimants are entitled their salaries from May 2018 to January 30, 2020 at N150,000.00 and N60,000.00 monthly respectively. In other words, the 1st claimant is to be paid his salaries from May 2018 to January 30, 2020 at the rate of N150,000.00 per month while the 2nd claimant is to be paid his salaries at the rate of N60,000.00 monthly from May 2018 to January 30, 2020.
26.2.0. Are the Claimants entitled to N10,000,000.00 as General Damages and N500,000.00 as Cost of Litigation?
These two reliefs are f & g in para. 35 of the Statement of Facts. The claimants failed to prove these claims woefully and I decline from exercising my discretion on the claims in the claimants’ favour. The two claims are accordingly dismissed for lacking in merit.
27.0. On the whole, I declare, hold and order as follows:
i. I declare that the employments of the claimants with the Defendants were not validly dismissed by the defendants.
ii. I declare that the claimants are not entitled to their salaries till date because their employment is a private one that is based strictly on the terms and conditions of the employment.
iii. I hold that the claimants’ employment was determined by termination with effect from January 30, 2020 when they became aware of the determination of their employments.
iv. I hold that the claimants are entitled to their salaries from May 2018 when the defendants temporarily stopped them from performing their duties in the 1st defendant company till January 30, 2020 at the rate of N150,000.00 and N60,000.00 monthly respectively.
v. I hold that the claimants are not entitled to N10,000,000.00 as General Damages and N500,000.00 as Cost of Litigation because they were not proved. Accordingly, the two claims are dismissed for lacking in merit.
vi. I hereby order the defendants to pay the judgment debts to the claimants within 30 days from today.
28.0. Judgment is entered accordingly. I make no order as to cost.
HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)