IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI
DATE: FRIDAY 29TH SEPTEMBER 2023 SUIT NO. NICN/LA/509/2017
BETWEEN
MR. GEORGE ODIASE CLAIMANT
AND
SILVERBIRD CINEMAS DEFENDANT
Representation:
Paul Omoijiade for the Claimant
Adesoji Ojerinde for the Defendant
JUDGMENT
Introduction and Claim:
1. On 20th day of October 2017, the Claimant filed a General form of Complaint, Statement of Facts, together with the Claimant’s list of witnesses, the Claimant’s witness statement on oath, verifying affidavit, list of documents; all dated the same 20th day of October 2017, and copies of the documents to be relied on by Claimant at the trial of this suit. The Claimant claims against the Defendant as follows:
(a) A declaration that the Claimant’s dismissal from employment by the Defendant does not accord with his contract of employment and International Best Practice and therefore wrongful and unlawful.
(b) A declaration that the non payment of the claimant’s salary for the month of August, 2017 is unlawful.
(c) A declaration that the non payment of transfer benefit to the Claimant while payment of same was made to his colleague by the defendant is discriminatory and unlawful.
(d) An Order of this Honourable Court that the Defendant pay to the claimant the sum of N1, 728, 000 (One Million Seven Hundred and Twenty Eight Thousand Naira) computed on the basis of his 2 years annual salary as damages/compensation for the wrongful dismissal.
(e) An Order for the payment of N72, 010.00 being the claimant’s salary for the month of August, 2017.
(f) An Order that the defendant pay to the claimant N250, 000 (Two Hundred and Fifty Thousand Naira) being his transfer benefit.
(g) An Order that the Defendant pay to the Claimant the sum of N 300, 000.00 (Three Hundred Thousand Naira) being the cost of litigating this matter.
(h) And such other consequential Orders the court will deem necessary and appropriate to make in the circumstance.
2. In response to the claims, the Defendant filed its Statement of Defence dated 11th day of January, 2018 together with a list of Defendant’s witness and Defendant’s witness statement on oath deposed to by Mrs. Abimbola Ogunleye and Ebede Eirewele, list of documents and copies of documents to be relied on at the trial. The Claimant filed a Reply dated 19th January 2018 to the Statement of Defence filed by the Defendant. Trial commenced in the suit on 17th day of April, 2018. The Claimant gave evidence for himself by adopting his witness statement on oath deposed to on 20th October 2017. The Claimant was cross-examined on 5th March 2020. During the examination in chief, the Claimant tendered the following documents in evidence:
1. Offer of employment letter dated 12th February, 2014 – Exhibit C1;
2. The Conversion letter dated 13th October, 2015 – Exhibit C2;
3. Letter of Confirmation dated 22nd March, 2016 – Exhibit C3;
4. Defendant’s Internal Memo dated 16th February, 2017 and 26th April, 2016 - Exhibit C4;
5. Letter of Transfer dated 11th July, 2015 - Exhibit C5;
6. ILO Convention 111, Article 1 - Exhibit C6;
7. Email dated 13th August, 2017 @ 8:10 - Exhibit C7;
8. Letter of dismissal dated 21st August, 2017 – Exhibit C8;
9. Pay slip for March, 2017 – Exhibit C9;
10. The Defendant’s letter of salary compensation review dated 19th August, 2014 and 18th August, 2015 – Exhibit C10;
11. The ILO Convention 158 – Exhibit C11.
3. The Defendant’s witness, Kehinde Oyeneyin gave evidence on 25th day of January 2022 as DW1 by adopting his witness statement on oath deposed to on 24 day of January 2022 and was cross-examined accordingly. The Defendant tendered in evidence the following documents:
1. Internal Audit Report – Exhibit D1;
2. Whatsapp and Face book Chats – Exhibit D2;
3 Disciplinary Hearing Report – Exhibit D3;
4. Letter of Dismissal – Exhibit D4
At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Address were adopted on the 20th day of July 2023.
CASE OF THE CLAIMANT
4. The Claimant was offered employment in the Defendant via a letter of employment dated 16th January, 2014 on a monthly salary of N62,000 and was Reviewed via letters dated 19 August, 2014 and 18th August, 2015 until he was dismissed on 21st August, 2017. The Claimant was transferred to Silverbird TM Cinema Monrovia, Liberia effective 12th July, 2017 and was denied his transfer benefits whereas Mr. Mojeed Sule on a salary of N55,000 per month who was transferred to Liberia from Nigeria was paid transfer benefit of N195.000.00(One Hundred and Ninety Five Thousand Naira). The Claimant was invited to a Management meeting on the 17th of August, 2017 from Monrovia through email dated 12th August, 2017 and upon entry into the meeting it turned out to be a disciplinary meeting and was confronted with allegation of fraud. The Claimant was asked whether he knew any one called Wilfield Bassey Echeng, (the store Officer) and the Claimant replied that Mr. Echeng was his friend. The Claimant received a call on 18th August, 2017 to come to the office and upon arrival on 21st August, 2017 he was handed a letter of dismissal without issuance of any query before his dismissal which amounts to violation of his right to fair hearing. The purported dismissal has caused the Claimant untold hardship as the salary is the only source of his livelihood and that of his dependants.
CASE OF THE DEFENDANT
5. It is the case of the Defendant that at no time did the Defendant offer to pay the Claimant the sum of N250, 000.00 (Two Hundred Thousand Naira) as transfer benefit or any other benefit or given any sum as benefit for transferred allowances as claimed by the Claimant. The Defendant states that at no point during the employment of the Claimant did the Defendant receive any complaint from the Claimant regarding its policies or any alleged discriminatory practices by the Defendant or any of its officers. While the Claimant was in Monrovia, Liberia, the Defendant received a report dated 10th August 2017 from its Internal Audit Unit on the fraudulent activities involving the Claimant and some other employees printing popcorn packs and using them to steal money belonging to the Defendant from the concession stands. Upon receipt and review of the report dated 10th August 2017, the Defendant took a decision to set up a disciplinary panel. The Claimant and the former employees were invited to the hearing of the panel set up by the Defendant which was held on 17th August 2017. The Claimant was informed of the various allegations against him and the Claimant was confronted with his printed out WhatsApp and Facebook conversations showing their conspiracy and participation in the various acts alleged against them in the report. During the said sitting of the panel, the mobile phones of the Claimant and Wilfred Echeng were collected and the conversation between the two of them on their plans to convert extra popcorn bags were read out. Both the Claimant and Wilfred Echeng admitted that they had the conversation read out from their mobile phones and other messages extracted from facebook and whatsapp. It is the case of the Defendant that the Claimant was dismissed based on the report of the Panel which indicted the Claimant after which the Claimant was given opportunity to defend himself.
CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE
6. The Claimant replied that he was invited to a management meeting by the Defendant via an email dated 12’ August, 2017 and not to attend a disciplinary panel. He states that the allegation of defrauding the Defendant is a serious offence that the Defendant needs to prove. The Claimant states that Defendant’s accusation are baseless and unfair as the Defendant has neither disclosed the said confession of the Claimant neither has the Defendant shown a valid report signed by the Claimant.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
7. The Defendant in his Final Written Address raised three issues for determination as:
a. Whether the dismissal of the Claimant by the Defendant was wrongful and unlawful as alleged by the Claimant and entitles him to the sum of N1,728,000 (One Million Seven Hundred and Twenty-Eight Thousand Naira) being claimed as damages/compensation?
b. Whether the Claimant led credible evidence in proof of his alleged entitlement to August 2017’s salary?
c. Whether the Claimant led credible evidence in proof of his alleged entitlement to the sums of N250,000.00 (Two Hundred and Fifty Thousand Naira) as transfer benefit and N300,000.00 (Three Hundred Thousand Naira) as cost of litigation?
7. On issue one, Whether the dismissal of the Claimant by the Defendant was wrongful and unlawful as alleged by the Claimant and entitles him to the sum of N1,728,000 (One Million Seven Hundred and Twenty-Eight Thousand Naira) being claimed as damages/compensation, the Defendant argued that the Claimant has failed woefully to prove that his dismissal was wrongful and/or unlawful and that the contract of employment is the bedrock for the success of claim for wrongful termination. The Defendant submits that the law is now settled that when an employee complains that his employment has been wrongly or unlawfully terminated or dismissed from his employment, he has the burden of placing before the Court not only the terms and conditions of his employment but the manner in which the said terms or conditions were breached by the employer. The Defendant relied on the case of Katto v. C.B.N (1999) 6 NWLR (Pt67) page 390. The Defendant argued that what is required from an employer before dismissing an employee for misconduct is for the employee to be given an opportunity to be heard on the allegations against the employee, that it is immaterial that the email sent to the Claimant stated that he was being invited to a meeting as opposed to a disciplinary hearing and that what matters was that the Claimant was given an opportunity to be heard and was indeed heard on the allegations against him. The Defendant relied on the case of Momoh v. CBN (2007) LPELR-8842(CA). The Defendant submits that the Claimant having failed to prove its allegation that his dismissal was wrongful and unlawful, is not entitled to the sum of N1,728,000 (One Million Seven Hundred and Twenty-Eight Thousand Naira) being claimed as damages/compensation for wrongful dismissal, especially since the Claimant did not provide any empirical analysis of this claim. The Defendant further submits that the law is that where an Employee’s claim is for wrongful and/or unlawful dismissal, his only remedy is in damages for breach of contract and not for salaries he would have earned if he had not been dismissed, relying on the case of Obot v. CBN (1993) LPELR-2192(SC)
8. On the second issue raised by the Defendant, whether the Claimant led credible evidence in proof of his alleged entitlement to August 2017’s salary, the Defendant argued that the Claimant’s pay slip for the month of March 2017 which was tendered and admitted in evidence as Exhibit C9, clearly shows that the Claimant’s net monthly salary is the sum of N61,744.17 (Sixty-One Thousand, Seven Hundred and Forty-Four Thousand,Seventeen Kobo). The Claimant has however, claimed the sum of N72,010.00 (Seventy-Two Thousand, Ten Naira) as his August 2017 salary but failed to lead credible evidence to prove his entitlement to the said sum. The Defendant submits that the unchallenged and uncontradicted evidence of DW1 before this Honourable Court is that the Claimant was paid all his salaries up until the date of his lawful dismissal. The Defendant argues that the burden of proof was on the Claimant to prove with credible evidence that he was indeed not paid his August 2017 salary, and that he Claimant having failed to do so, his claim for August 2017 salary ought to fail. The Defendant argued that assuming without conceding that the Claimant was not paid his August 2017 salary, the same will not be unlawful, as the evidence before this Honourable Court clearly shows that the Claimant was dismissed from the Claimant’s employment for gross misconduct. The Defendant submits that the law is settled that where an employee has been found guilty of gross misconduct, the employer is entitled to summarily dismiss the employee without notice and wages. The Defendant relied on the case Nwobosi v. A.C.B. Ltd. ( 1995) 6 NWLR ( pt.409) 658 at 686, paragraph D and Isong Udofia Umoh v.Industrial Training Govering Council (2001) 4 NWLR (Pt.703) 281 at 301, and the case of Yusuf v. UBN Ltd (1996) LPELR-3537(SC) where the Supreme Court held that “there can be no doubt that where an employee is guilty of gross misconduct, he can be dismissed summarily without notice and without wages”.
9. On issue three, Whether the Claimant has led credible evidence in proof of his alleged entitlement to the sums of N250,000.00 (Two Hundred and Fifty Thousand Naira) as transfer benefit and N300,000.00 (Three Hundred Thousand Naira) as cost of litigation, the Defendant argued that the Claimant has failed to prove by credible evidence that he is entitled to transfer benefit as the Claimant’s contract of employment does not make any provision for payment of transfer benefits. The Defendant submits that in respect of the sum of N300,000.00(Three Hundred Thousand Naira) as cost of litigation, that the Court should discountenance it because it is not supported by any shred of evidence.
SUBMISSONS ON BEHALF OF CLAIMANT
10. The Claimant in his Final Written Address raised two issues for determination as:
I. Whether the dismissal of the Claimant without query accords with his contract of employment and Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended), international best practice particularly ILO Convention 158 Article 7;
ii. Whether the Claimant is entitled to the following reliefs in this suit:
a. The sum of N1, 728, 000.00 (One Million Seven Hundred and Twenty Eight Thousand Naira) computed on the basis of the Claimant’s two years annual salary as damages/compensation for the wrongful dismissal;
b. Payment of N71, 010.00 being the Claimant’s salary for the month of August, 2017;
c. Payment of the Claimant’s transfer benefit in the sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira Only); and
d. Payment of N300, 000.00 (Three Hundred Thousand Naira) cost.
11. On issue one, Whether the dismissal of the Claimant by the Defendant was wrongful and unlawful as alleged by the Claimant and entitles him to the sum of N1,728,000 (One Million Seven Hundred and Twenty-Eight Thousand Naira) being claimed as damages/compensation, the Claimant argued that failure on the part the Defendant not to issue query to him and not informing him of the disciplinary panel amounts to unfair hearing. The Claimant relied on Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. The Claimant argued that he has proved the allegation by tendering the letter of dismissal (Exhibit C9) which stated in paragraph ‘A’ that he was dismissed for fraudulent activities. The Claimant argues that the law is trite that an employer who adduces reason for the termination of an employee’s employment must justify same. The Claimant submits that the requirement of giving the employee notice of the allegations against him is a constitutional right entrenched in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 which guarantees the right to fair hearing. Furthermore he argued that the DW confirmed under cross examination that he was never given any query, therefore the outcome of the purported “Disciplinary Committee Meeting’’ held on the 17th August, 2017 cannot be valid under any ground because one cannot put something on nothing and expect it to stand as held in the case of Macfoy V. United Africa Company (1961) 3 ALL ER 1169 (Pc) at 1172, (1962) AC 153. The Claimant argued that there is no credible evidence before the Court in support of the Defendant’s defence or that the Defendant pleaded the face book chat (Exhibit D2) which did not disclose any wrongdoing against the Claimant. The Claimant argued that the Disciplinary Report- Exhibit D3, is a self serving document made out by the Defendant over a non-existent disciplinary panel proceedings and was never shown to the Claimant. The Claimant further argues that the Internal Audit Report- Exhibit D1 is an investigative report which should have formed the basis for the issuance of query to the Claimant before his dismissal; therefore the Claimant’s dismissal violated the rules of natural justice and did not accord with international best practice particularly Article 7 of ILO Convention 158.
12. On the issue that the Claimant did not prove his entitlement to the sum of N1,728,000 (One Million Seven Hundred and Twenty Eight Thousand Naira) computed on the basis of his 2 years annual salary as damages/compensation for the wrongful dismissal, the Claimant argued that The National Industrial Court is empowered pursuant to Section 19(d) of the NIC ACT 2006 to award compensation and the power of the NICN to so act have been affirmed by the Court of Appeal in the case of Sahara Energy Resources limited V. Mrs Olawunmi Oyebola CA/L/1091/2016 in the judgment which was delivered on the 3rd December, 2020; and upheld the decision of the National Industrial Court of Nigeria to depart from the common law prescription restricting the quantum of damages to remedy wrongful termination cases. The Claimant submits that it is trite law that where an employee is dismissed or terminated, he is entitled to his wages up to the time of termination/dismissal and that the wages referred in the case of Nwobosi v. A.C.B LTD ( 1995) 6 NWLR ( pt.409) 658 are payment in lieu of notice and gratuity and not wages earned up to the point of dismissal as argued by the Counsel to the Defendant. The Claimant relied on the case of Underwater Engineering Co. Ltd & Anor v. Durusha Dubefon (1995) LPELR 3379(SC). The Claimant argued that he was transferred from Lagos to Monrovia with the promise to be paid the sum of Two Hundred and Fifty Thousand Naira, as it is imperative for the Defendant to bear the Claimant’s travelling expenses from Nigeria to Liberia. The Claimant urged the Court to exercise her discretion pursuant to section 19 of the National Industrial Court Act, 2006 to award compensation to him based on his claim. The Claimant replied on the issue of cost of litigation that he incurred cost in filing this suit with the attendant professional legal fees; and that a successful party is presumed to be entitled to the award of cost of action as held in the case of F. A. Akinbobola V. Plisson Fisko Nigeria Ltd & Ors (1991) LPELR – 343 (SC).
DEFENDANT’S REPLY ON POOINT OF LAW
13. On the issue that the Claimant was not given query before his dismissal, the Defendant replied that the Claimant has not complained of any irregularity in the procedure adopted at the hearing set up for him or that he was not given an opportunity to defend himself at the hearing, and the fact that he was given an opportunity to answer the questions put to him at the hearing has already been admitted by the Claimant in his evidence. On the fact that Exhibit C7 mentioned management meeting instead of disciplinary hearing, the Defendant relied that the facts and evidence before the Court clearly shows that at the said meeting, the Claimant was notified of the allegations against him and was given an opportunity to defend himself as clearly disclosed by Exhibit D3.
DECISION
14. I have considered the processes filed in this suit, the evidence of the witnesses, arguments of Counsel and the exhibits tendered. I set two issues down for determination, to wit:
(i) Whether the Claimant was granted fair hearing before the determination of his employment;
(ii) Whether the Claimant is entitled to the reliefs sought in this case?
15. Issue One - Whether the Claimant was granted fair hearing before the determination of his employment. The Claimant challenges his dismissal as being contrary to his contract of employment and international best practices. He contends that he was not given fair hearing before his dismissal, in that he was never given a query before his dismissal. According to the Claimant, he was invited to a management meeting on the 17th August, 2017 from Monrovia through email dated 12th August, 2017 and upon entry into the meeting it turned out to be a disciplinary meeting where he was confronted with allegation of fraud. The Defendant on its part states that the Claimant was rightly dismissed on findings of fraud and was given an opportunity to state his case, before he was dismissed.
16. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause- Ariori & Ors v. Muraimo Elemo & Ors (1983) 1 SC 13 at 24. Obaseki JSC stated:
The right to fair hearing under Section 36(1) of the 1999 Constitution of Nigeria as applicable in the determination of civil rights and obligation of people also envisages a trial conducted according to all legal rules formulated to ensure that justice is done to all parties.
17. It is the law that an employer is free to determine the employment of its employee but it must be done according to contract or according to law (where founded on a statute). Where an employer removes an employee for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. In the case of Pam v. Mohammed (2008) 16 NWLR (PT 1112) 1 SC. Per Tobi JSC stated that:
The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. The fundamental basis underlying the principle of fair hearing is the doctrine of audi alteram partem which means to hear the other side.
18. From the reliefs sought in this suit; this Court has not been called to conduct an investigation of the fraud which occurred in the Defendant; which led to the dismissal of the Claimant. This Court is principally called to determine whether the manner by which the decision to dismiss the Claimant was arrived at violated the Claimant’s contract and the laws. See Governor Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292. The unfettered judicial discretion of the Court is only exercised when statutory institutions fail to carry out the statute and tort procedure set out for removal of its employees. See Olaniyan v. University of Lagos (1985) 2 NWLR SC 599. I have considered the evidence before this Court, which the Claimant has presented as showing lack of fair hearing.
19. When a contract of employment is said to have been brought to an end contrary to the contract between the parties, the contract is said to have been wrongfully terminated. The implication is that the terms of the contract were breached. In such a case, the party (in this case, the employee) has the onus of proving the breach. This he has to do by placing before the Court the terms and conditions of the contract of employment, and showing in what manner the said terms were breached by the employer. See Oforishe v. Nigerian Gas Co. Ltd (2017) LPELR-42766(SC), and Katto v. CBN (1999) LPELR-1677(SC). In proof of his case, the Claimant tendered in evidence exhibits C1 and C2, which are his letters of offer of employment on one year contract and letter of his conversion to permanent staff, respectfully. Both documents contain the following provisions:
… The company however; has the right to give immediate notice before terminating your services if you are guilty of misdemeanour, misconduct, negligence or breach of any of the terms of this letter of appointment.
20. The above terms authorises immediate termination without notice (dismissal) in the event of the conducts listed in it. This is in line with the principles guiding dismissal from employment for misconduct. In the case of Eze v. Spring Bank Plc. (2011) LPELR-2892(SC), the Supreme Court unequivocally stated as follows:
In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch. D339; Babatunde Ajayi v. Texaco Nigeria Ltd. & Ors. (1987) 3 N.W.L.R. (Pt. 62) 577." Per MOHAMMED, J.S.C. (P.20, Paras.D-E),
21. In seeking to justify its termination without notice, the 1st Defendant alleged “fraudulent activities leading to loss of revenue within the work premises of Lagos Cinemas”(exhibit D4/C8). The Defendant also tendered exhibit D1 (Summary of Report on Reprint of Popcorn Packs) and exhibit D2 showing face book communication between the Claimant and another staff, establishing the fraudulent activity. Exhibit D3 is the report of the disciplinary hearing of 17th August 2017. The Defendant is therefore of the view that the Claimant was given fair hearing before his dismissal.
22. The Claimant’s grouse are two fold; that he was not issued a query, and that he was invited to a management meeting and not a disciplinary panel. One thing is clear, the Claimant attended a meeting where he was confronted with allegations of the fraud, and he had the opportunity to state his case. The employment relationship between the parties was devoid of statutory flavour. None of the exhibits tendered by the Claimant showed any particular procedure that must be followed before the Claimant can be terminated without notice. It is the law that for employment without statutory flavour, the dictates of fair hearing is met upon opportunity given to the employee to state his case. The implication of the decision of the Court of Appeal in FBN v. Akanji (2017) LPELR-43555(CA) though a query was given in that case, is that what is required is for the Claimant to be given an opportunity to be heard. The Court stated as follows:
The Appellant in my view gave the Respondent in the instant appeal an opportunity to be heard. Upon being called upon to respond to allegations of gross, grave and grievous misconduct, the employer is entitled to dismiss if the reasons furnished by the employee in his response to the query are not concrete, cogent and convincing. In this case, I hold the view that the Respondent was given fair hearing and that the Appellant exercised its power to summarily dismiss the Respondent in line with Clause 4 of the Employee Code of Conduct and Ethical Standard Guide Lines." Per ABUBAKAR, J.C.A. (Pp. 36-47, Paras. C-B)
23. The question is; what is the essence of a query? If it is to enable the Claimant to respond to allegations against him; then where the Claimant appears before a panel of the Defendant, whether called a management meeting or disciplinary panel, and gives his side of the story concerning the allegation, then he has been heard. This is much so in the absence of any laid down procedure for disciplinary actions. The Claimant during cross examination while confirming that this suit emanated from the management meeting of 17th August 2017, denied remembering a thing that happened at the meeting. This is preposterous, since Claimant’s action is founded on the decision of that meeting. How can he not remember what occurred in the meeting that he is challenging its decision? His evidence in chief is that he was invited to a management meeting which turned out to be a disciplinary hearing. By this fact, I am convinced that the Claimant was given opportunity to defend himself at the ‘management meeting’, in which case, he was given fair hearing. The Court of Appeal in Raji v. UniIlorin (2007) 15 NWLR (Pt.1057) pg. 259, stated that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation. See Edet v. Chief of Air Staff (1994) 2 NWLR (Pt.324) 41 at 59; Saba v. NC.A.T.C. Zaria (1991) 5 NWLR (Pt.192) 388 at 418. In the case of Arinze v. F.B.N. Ltd (2004) 12 NWLR (Pt.888) P.663 the Supreme Court held that in case of misconduct bordering on criminality all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. The decision of the Court of Appeal, in Venn v. Access Bank Plc & Ors Suit No: CA/L/134/2012( 2015) All FWLR (Pt. 772) 1765 @ 1786, 1796 CA) is instructive on this. In following the position of the Supreme Court, the Court of Appeal held that:
I agree with the finding of the learned trial judge that the Appellant was duly confronted with the accusation made against him and given the opportunity to explain by telling his own side of the story but his explanation was not considered satisfactory by the Disciplinary Committee who recommended his dismissal to the 1st Respondent, hence his complaint that he was given(Sic) fair hearing cannot stand. In the case of Arinze v. First Bank of Nigeria Ltd (2004) 12 NWLR (Pt.888) 663. It was held by the Supreme Court that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.
Based on the above reasoning, I find that the Claimant was given fair hearing before his dismissal.
24. Issue two – whether the Claimant is entitled to the reliefs he seeks. His claim has eight reliefs. I shall take them seriatim:
Relief (A) - A declaration that the Claimant’s dismissal from employment by the Defendant does not accord with his contract of employment and International Best Practice and therefore wrongful and unlawful. Based on the finding under issue one, the Claimant failed to establish that his dismissal was wrongful and unlawful. This relief fails.
Relief (B) - A declaration that the non-payment of the Claimant’s salary for the month of August, 2017 is unlawful. The Claimant did not establish that his salary for the month of August was not paid; especially, after the Defendant asserted that he was not being owed any salary. Moreover, the Claimant in paragraph 17 of the Statement of Facts told the Court that he was on a salary of N72,010.00 per month and pleaded his pay slip for the month of March, 2017 in proof. However, exhibit C9, Claimant’s payslip dated 1st March 2017 shows the Claimant’s net salary to be N61,744.17 and not N72,010.00 per month. Nowhere in exhibit C9 is the sum of N72,010.00 amount claimed as salary, written. Assuming this Court finds that the Claimant had earned his August salary before the dismissal and hence entitled to it, the sum remains indeterminable. I therefore decline to make the order sought in this relief.
Relief (C) - A declaration that the non-payment of transfer benefit to the Claimant while payment of same was made to his colleague by the Defendant is discriminatory and unlawful. The Claimant failed to establish that his contract of employment, or policy or practice of the Defendant provides for the payment of transfer benefit. He also failed to prove that his alleged colleague was paid the said transfer benefit. This Court cannot rely on Claimant’s say-so to grant this relief. This relief therefore fails.
Relief (D) - An Order of this Honourable Court that the Defendant pay to the Claimant the sum of N1, 728, 000 (One Million Seven Hundred and Twenty Eight Thousand Naira) computed on the basis of his 2 years annual salary as damages/compensation for the wrongful dismissal. Having not found the Claimant’s dismissal wrongful, this relief fails.
Relief (E) - An Order for the payment of N72, 010.00 being the Claimant’s salary for the month of August, 2017. I have found under Relief B that the Claimant failed to establish that the claimed amount is his salary. This relief therefore fails.
Relief (F) - AN Order that the Defendant pay to the Claimant N250, 000 (Two Hundred and Fifty Thousand Naira) being his transfer benefit. Relief (C) having failed, this relief fails as a consequence.
Relief (G) - An Order that the Defendant pay to the Claimant the sum of N 300, 000.00 (Three Hundred Thousand Naira) being the cost of litigating this matter. By the failure of reliefs A – F, this relief cannot be granted. 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 PhD