IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: TUESDAY AUGUST 13, 2024       SUIT NO: NICN/EN/11/2018

 

 

BETWEEN:

 

IFEATU ANTHONY EMODI……………..………………..CLAIMANT

 

AND

 

DIAMOND BANK OF NIGERIA PLC…………………...DEFENDANT

 

 

APPEARANCES:

1.                 O. C. ABALU WITH F.N. EZEOFOR – FOR THE CLAIMANT.

2.                 I.M. UGWU – FOR THE DEFENDANT.

 

JUDGMENT

INTRODUCTION

COMPLAINT commenced this suit Apr 03, 2018. The claimant has the following reliefs in his Amended Statement of Facts [ASF] filed Mar 15, 2021:

(1)                         An Order of the Honourable Court declaring the Termination of the claimant’s employment wrongful, null and void and of no effect.

(2)                         An Order of court directing the Defendant to allow the Claimant to formally resign from his employment with the defendant with all entitlements thereto and in accordance with Banking Practices.

(3)                         An Order of court that the defendant pays the claimant his unpaid salary and entitlement as follows

(i)             Salary and economic subsidy in the sum of N13,015,727.76

(ii)          Quarterly payment in the sum of N963,870.84

(iii)       Yearly Profit sharing of N3,656,324.56

(iv)        Yearly housing allowance in the sum of N5,872,344.45

(v)           quarterly [sic] reimbursement/subsidy allowance N23,318,752.8. [sic]

(vi)        13^th Months in the sum of N472,063.57

(vii)     Annual leave allowance in the sum of N1,244,301.08

(4)                         N10,000,000 (Ten Million Naira) being damages for embarrassment, health hazard exposures and inconveniences caused by the unlawful determination of the Claimant’s services.

 

The defendant filed Amended Statement of Defence [ASD] Oct 25, 2022. The claimant did not file reply to the ASD but maintained the Reply to the Statement of Defence [RSD] filed against the original Statement of Defence Jun 20, 2019. Thus, pleadings were closed and issued joined. I move to summary of the pleadings.

 

SUMMARY OF PLEADINGS 

The claimant pleaded that he was originally employed by Diamond Bank subsequently taken over by the defendant in 2006 and that, Mar 19, 2014 he received an email, ostensibly for another function, but by which he was suddenly made to appear in a panel for sexual harassment of a female colleague. He said he was not given notice and time to prepare his defence, while the alleged victim was not present to give evidence and that; this was against the Bank’s Disciplinary Policy [Staff Handbook], which was not issued to staff. He pleaded too that the panel was not properly constituted, as his regional manager was not a member and, there was no post-disciplinary proceedings meeting with him. He pleaded that on the same Mar 21, 2014, he was suspended indefinitely without pay, pending investigation, contrary to the one month in the Staff Handbook. He pleaded that, he was directed to check his mailbox when he came to inquire about his fate and found that he was dismissed Apr 22, 2014.

The claimant pleaded that he was owed earned salaries and other emoluments since Mar 2014 when he was last paid and also arrears from the dismissal period. The claimant pleaded hardship and psychological traumas caused by the dismissal. The claimant pleaded too that; while this suit filed in 2018 against Diamond Bank was pending, Access Bank took over Diamond Bank. That ends the claimant’s story. I move to the defendant’s counter-story.

 

B: Summary of the Defendant’s Counter-Story

The defendant counter-pleaded that the claimant’s employment was properly determined in accordance with the Staff Handbook. The defendant denied tampering with the claimant’s phone and ID Card and that; the disciplinary panel was properly constituted and that; the claimant had been verbally warned several times on sexual harassments and had to be invited to appear before the disciplinary panel when he failed to take caution and that; his employment was subject to good behaviour. The defendant counter-pleaded that the claimant was given fair hearing and that; it does not owe the claimant a dime. The defendant counter-pleaded the dismissal of the case. Thus ended the ASD. I move to the RSD.     

 

C: Summary of the RSD

The claimant replied that he was not previously accused of any offence or previously warned. That is the only useful point of reply as others were repetitious of issues already joined. That being the end of summary of the pleadings, I move to summary of the proceedings.

 

SUMMARY OF PROCEEDINGS

The matter first came up before His Lordship, Essien J. Jun 13, 2018 and next time before me Oct 03, 2018 and subsequently thereafter till adoption of Final Written Addresses [FWAs]. The defendant’s motion to regularise the SD was granted Jun 19, 2019. The claimant’s Amended Statement on Oath deposed 20/06/2019 was struck out Mar 03, 2020. On 2^nd Feb 2021, the Court granted the motion for substitution of the defendant’s name. Claimant’s motion for amendment of pleadings was granted Jul 07, 2021.

The case was opened Jun 21, 2022 with the claimant testifying as CW1. CW1 adopted the Written Statement on Oath [WSO] made 15/03/2021 and the case was adjourned to the following day for the claimant to put his documents in order. It came up as adjourned Jun 22, 2022 and the claimant continued his testimony but yet, the case could still not go on because the learned counsel to the claimant refused to put their house in order. It came up next Jul 13, 2022 and Exhibits C1-C10 were admitted and; the case went for Cross-Examination [XX]. Under XX CW said his job entailed review and not supervision. To the question that he received a mail inviting him to disciplinary committee, he said yes, but that he had earlier received another inviting him to be member of Fraud Committee and that; they used the first mail to lure him.  He said rather than the disciplinary committee, it was the HR Manager that invited him. He said he was not questioned about sexual harassment but about the extent of his relationship with the female officer in issue.

CW1 said the committee did not provide any evidence and that it never carried out the investigation as he was neither queried nor interviewed on the result of the investigation before his appointment was terminated. He admitted after perambulation that; his job as cluster control involved investigation but that it was not true he used his position to harass female staff and also that; it was not true that he was transferred from Lagos to Enugu because he failed to heed warnings to stop harassing the female staff but that rather, his transfer was part of the general transfer of cluster control managers. He maintained he was not afforded fair hearing and gave a litany of the absence of fair hearing and also maintained that, he was still being owed earned emoluments. He said, as the defendant did not subsequently tender any report of investigation, it meant none was done and therefore, fair hearing was breached. To the question that the claimant did not demand for the report to show absence of fair hearing, CW1 said it was not necessary, as the proceedings were flawed from the beginning.

The XX was stopped at this level and there was no re-examination and the claimant closed his case. And the matter was adjourned for defence. On 15^th Dec 2022 the defendant’s motion to amend the SD was granted while the case was adjourned for defence. On 9^th Nov 2023, defence opened with one Kingsley Azubuike [Compliance Officer] who testified as DW1 and adopted his WSO made 25/10/22 and was thereafter surrendered for XX. He admitted that the claimant was invited for a meeting and he clarified that the meeting and the disciplinary panels were two different events on different dates to which the claimant was invited. DW1 admitted he was not in Lagos at the date. To the question that, there was no separate meeting for the two events related in paras 5 & 6 of the WSO as the claimant was only made to appear before the panel, the DW1 said, the Bank retained the right to invite its employees for a meeting and engagements as long as the notice was served on them.

DW1 said the claimant and the petitioner were not made to face each other because, the panel felt it would be a mismatch to engage a management staff and a mere trainee together. DW1 said since the bank brought together high ranking and experienced bankers to interrogate both sides on the issue, all was okay and that eight persons were present at the panel but that none of them came from Enugu Regional Office because membership was based on the banking policy, of which the Enugu Regional Office was not a member. DW1 said the claimant’s ID Card was only collected when he was sent on suspension. DW1 said the claimant was invited to the panel with the accusation clearly stated in the notice. He said he did not have a copy of the mail but that the claimant had tendered it. DW1 said he could not state the exact name of the banking policy on discipline but that the claimant had tendered it as evidence. DW1 said the claimant arrived the head office Mar 20 and was suspended Mar 22 and that; the claimant was suspended after the panel’s deliberation to forestall interference with further investigation to confirm his defence.

DW1 said the investigation started when the Bank received petition from Miss Ijeoma Nwachi in Jan 2014 but that; he was not privy to the date of the conclusion of the investigation and that; he was not part of the investigation to know its activities. The XX was closed at this stage. The learned claimant’s counsel thereafter urged the Court to compel the defendant to produce the Staff Handbook but the learned defence counsel replied that because Diamond Bank had been acquired the new entity did not have access to it and that new the Staff Handbook was different and, the Court dismissed the application, for been made belatedly. There was no re-examination and the case was adjourned for adoption of FWAs.

It came up for adoption on 23^rd May 2024. The defence counsel’s motion to regularise their FWA was granted and the learned defence counsel I.M. UGWU adopted the defendant’s FWA and Reply on Points of Law [RPL]. Thereafter, the Court also granted the oral application to regularise the claimant’s FWA. And thereafter, the learned claimant’s counsel O.C. ABALU adopted the claimant’s FWA and urged the Court to grant the reliefs claimed. Thereafter, the claimant’s learned counsel substituted Exhibit C3 with a clearer version without objection and the matter was adjourned to Jul 17, 2024 for judgment. But as the judgment was not ready on this date, it was adjourned sine die and when it became ready, delivery date was communicated to the learned counsel on both sides. Having got to this stage, the next duty is summary of the theories of the case as contained in the learned counsel’s FWAs as franked for the opposing sides.

 

SUMMARY OF THE THEORIES OF THE CASE

A: Defendant’s Theory of the Case

Learned I.M.UGWU franked the defendant’s theory of the case and submitted two issues for my consideration thus:

(a)                              Whether the Claimant was lawfully dismissed from the Defendant’s employment. [Sic]

(b)                             Whether the Claimant is entitled to his claims having been lawfully and summarily dismissed from the Defendant’s employment [Sic]

 

Under issue 1, the learned counsel cited S. 11(1) of the Labour Act and the proviso to it in Subsection (5) to the effect that, parties are entitled to notices or salary in lieu before termination but can still dismiss summarily for gross misconducts. The learned counsel submitted that gross misconducts in this respect are what the employer calls them in its Exhibit C3: Human Capital Management Discipline [Staff Handbook] but concedes that employer can terminate without giving reason. The learned counsel argued that however, the claimant’s employment was determined for sexual harassment after due trial and investigation and that; the claimant had previously been reprimanded orally for sexual harassment and that; these facts were not disputed because, the claimant’s defence was that the sexual harassment trial took place on a Saturday, a non-working day and outside the workplace. The learned counsel argued that, whereas, the claimant admitted under XX that the event where the harassment took place was a banking activity organised by the CBN. The learned counsel submitted that the claimant was thus giving fair hearing, having been issued letter of invitation to the panel on allegation of sexual harassment brought against him by a co-staff [Ms Ijeoma Nwachi].

The learned counsel argued that the contention that both accuser and the claimant were not made to face each other in the panel is nonstarter as the accuser was made to appear separately because; she was a junior officer in order to avoid intimidation. The learned counsel submitted too that, the disciplinary panel was duly constituted as the claimant failed to present any evidence to the contrary and that, the panel was constituted as required by policy and that, the Regional Manager, Enugu had not been appointed as a member of Disciplinary Panel at that point; and that, the answers of the DW1 attested to these under XX. Thus ended arguments on issue 1 and the learned counsel moved to his issue 2.

Under issue 2, which is whether the claimant is entitled to the reliefs claimed, the learned counsel submitted that it is the claimant’s duty to prove breach of his contract of service and cited Daodu v. Uba (2004) 29 WRN 53 at 71 and that; the claimant failed in this regard as he failed to set out the clauses of his contract that were breached and therefore, not entitled to his reliefs, having been lawfully dismissed. The learned counsel cited Ifeta v. Shell Petroleum DV. Co. Ltd (2000) 7 MJSC 12 at 149 to the effect that, the claimant is not entitled to compensation in master-servant employment. The learned counsel thereafter urged the court to dismiss the case and signed off the FWA. I move to the claimant’s theory of the case, as franked by his learned counsel.

 

B: Claimant’s Theory of the Case   

Learned O.C. ABALU franked the claimant’s FWA and submitted four issues for the Court’s consideration:

1.                           Whether the Claimant was given fair hearing at the sitting of the Disciplinary panel of Diamond Bank now taken over by the Defendant. [sic]

2.                           Whether the purported termination of the Claimant’s employment by Diamond Bank Plc, now taken over by the Defendant was wrongful, null and void and of no effect. [Sic]

3.                           Whether the Claimant proves his case against the Defendant as required by law. [Sic]

4.                           Whether the Defendant is entitled to the reliefs sort from the Honourable Court against the Defendant. [Sic]

 

Under issue 1, the learned counsel listed paras 6-12 of the ASF and submitted that the defendant admitted paras 6, which showed the claimant was lured to Lagos as a member of a committee, which turned out to be disciplinary panel, while the defendant could not contradict para 7 of the ASF in its para 5 of the ASD. The learned counsel argued that the defendant did not cite the exact rule referred to, while the claimant was not informed in time about the allegations against him and was not also given the details of the allegations before the panel’s sitting. The learned counsel referred to paras 10-12 of the ASD, which showed that the claimant was not queried and not made to face his accuser, while the claimant’s appointment was terminated within an hour of getting to the head office. The learned counsel cited infringement of S. 36 of the Constitution; Metuh v. FRN (2018) 3 NWLR (Pt. 1605) 1; Parma v. Ecobank Nig Ltd (2017) 9 NWLR (Pt. 157) 480 and, Arinze v. FBN Ltd (2004) 12 NWLR (Pt. 888) 663. Thereafter, the learned counsel moved to issue 2.

Under issue 2, which is whether the termination was wrongful, the learned counsel said Exhibits C1 & C3 contained the conditions of service and submitted that, para 2, p. 3 & 4 of Exhibit C3, showed the claimant was not fairly treated and that; the mandatory post-disciplinary meeting was not held with the claimant. The learned counsel cited UBA Plc v. Oranuba (2014) 2 NWLR (Pt. 1390) 1 to the effect that fair hearing must be accorded an employee before termination and that; the claimant proved wrongful termination in paras 4-21 of the ASF while the defendant could not give any reason for the abrupt termination and cited Akerele v. The State (1984) 10 SC 75 to the effect that the Court is not bound to consider a defence not supported by evidence. There ended arguments on issue 2 and the learned counsel moved to issue 3.

Under issue 3, the learned counsel argued that the claimant proved his case by explaining what transpired between him and the disciplinary committee in para 7 of the ASF and that; the defendant who said it followed the rule to invite the claimant did not state the exact rule so that, the Court could examine it. He submitted that the defendant did not explain why the claimant was invited to Lagos on another excuse. The learned counsel submitted that, the claimant gave evidence that neither query was issued him nor opportunity given him to defend himself and cited Orji v. Dorjy Textiles Mills Nig. Ltd & 2 Ors (2009) 12 SC (Pt. III) 73 to the effect that, after the claimant had discharged the burden on him, it is the defendant’s duty to deflect this by adducing evidence, which the defendant failed to do in the instant case and more importantly so, admitted paras 10-12 of the ASF and said nothing about reliefs 3&4. The learned counsel cited the claimant’s evidence under XX and cited Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 337 to the effect that; facts admitted need no further proof and Cameroon Airlines v. Otutuizu (2011) 1-2 SC (Pt. III) 200 to the effect that, evidence not challenged during XX is sacrosanct. Thus ended arguments on issue 3 and the learned counsel moved to issue 4.

Under issue 4, which deals with entitlement to the reliefs claimed, there is nothing worthy of being summarised. It is a repetition of previous arguments only that, the learned counsel prayed the Court to grant the reliefs claimed and signed off. I move to summary of the Reply on Points of Law [RPL].

 

C: Summary of the Reply on Points of Law [RPL]

Learned I.M. UGWU also franked the RPL and replied that the pieces of evidence that, the claimant served 18 years before termination, that a copy of the allegations were not given and that, the claimant was invited in disguise were pieces of evidence from the Bar by the learned claimant’s counsel and as such inadmissible. The learned counsel cited Timothy v. The People of Lagos State (2021) 11 NWLR (Pt. 1787) 251. The learned counsel also submitted that Arinze v. FBN was cited out of context. The learned counsel also said the learned counsel’s evidence on issues 2,3&4, especially on Exhibit C3 are incoherent and misconceived as the defendant, like the claimant, relied on Exhibit C3 and submitted that UBA v. Oranuba was therefore cited out of context. Thus ended the RPL.

My next duty is to give my decision and end the life of the lingering dispute. And as could be seen above, I have carefully digested the cases made by the parties and their FWAs. I also carefully listened to the testimonies of the two witnesses and watched their demeanours too. In addition to the above, and in line with my duty, I have made additional research on the authorities that would enable me give very good judgment. I am aware that I did not summarise the WSOs of the witnesses. The reason is because they are carbon copies of their pleadings, which I have summarised earlier on. But I shall make references to them where relevant. There I go.

 

COURT’S DECISION AND THE REASONS FOR THE DECISION

I consider the galore issues formulated by the learned claimant’s counsel unnecessary and the two formulated by the defence as yet, verbose. I therefore fused all the issues into one thus: Did the claimant prove wrongful discharge and thereby, entitled to the reliefs claimed? But before I go into the real issue, I wish to say, as an introduction to my decision that, when allegations of not following procedures are made, what the court is called upon to determine is external to the truth in the case, but a call to determine a threshold issue. Allegations of breach of procedure are threshold issues that must be satisfied before entrance could be gained to an assessment of the truth in the case. And allegations of breach of right to be heard, a fundamental right question, are threshold. This we should understand.

The claimant’s allegations of breach of fair hearing in the procedure of his trial are to be found in paras 6,7,10-12,14-15,18-21 of the ASF. The main gists of the allegations are that, he was lured from the Enugu Branch of the defendant to its head office in Lagos by a letter dated Mar 19, 2014 for another purpose, which was to take place Mar 21, 2014, but when he got to the head office in Lagos, he received another email Mar 21, 2014, inviting him to appear before a disciplinary panel the same Mar 21, 2014, but this time around, for an entirely different thing, to appear before a disciplinary panel on an allegation of sexual harassment levied against him by a female co-staff and that, no prior notice of the allegation was given to him. He pleaded and gave evidence in his WSO that by these, he had no opportunity to adequately prepare for his defence, while he was yet not afforded opportunity to defend himself at the panel, as the panel was fixated on its preconceived malevolent mission. He pleaded the provisions of the Staff Handbook that say, in disciplinary actions, employees are entitled to fair hearing and equitable treatment. He pleaded too and gave evidence in WSO that, his accuser was not present to lead evidence against him and that, as such; the whole trial was based on hearsay. He pleaded and gave evidence too that the panel did not itself produce any evidence against him and was also not properly constituted while he was not afforded the post-disciplinary meeting enshrined in the Staff Handbook, before his discharge. He pleaded too and gave evidence that his trial before investigation was also wrong.

The defendant pleaded she complied with the Staff Handbook and gave the claimant fair hearing and that; she did not summon the accuser to testify in the presence of the claimant because; she did not want the claimant to intimidate her, being a junior staff and that, the important thing is that, the claimant was invited to Lagos and he came and presented his defence. In essence, it is clear that the defendant admitted substantial part of the allegations against her. But whether this amounts to breach of fair hearing is another thing. It is now left for me to see whether the claimant’s claims gave rise to denial of fair hearing. But I have to state that, though, it is desirable that the claimant, via his lawyer, pleads the exact rules of the Staff Handbook breached but failure to do this might not be fatal, once enough facts are pleaded which point irresistibly to these rules, the exact rule could now be pointed out in the FWA.

I will say the strict reliance on technicality in this regard as argued by the defence, even if permissible hitherto to override substantive justice, can no longer be the law in the faces of SS. 12(2)(b), 13-15 of the National Industrial Court Act [NICA]; S. 254C-(1)(f)-(h)&(2) of the Constitution and, Adegboyu v. UBA[1], all which stressed that this Court is not strictly bound by the Evidence Act but by substantial justice of the cases, equity and fair labour practices. S. 254C-(1)(f)&(h)&(2) of the Constitution makes the observance of fair labour practices and international best practices the hallmarks of adjudication in the NIC. In virtue of this, the NIC is obliged to apply international best practices in the resolution of cases brought before it and international labour standards, which are contained in ILO treaties or conventions and other instruments and by these, the NIC can apply the labour standards contained in these treaties, whether ratified or not, as veritable examples of international best practices, to expatiate issues brought before it and this practice, is not limited to Nigeria. It is a general practice applicable to labour courts around the world. For example, the ILO reported[2] that the Industrial Court of the Republic of Botswana, despite the fact that Botswana had not ratified ILO C158 – Termination of Employment Convention, applied it thus:

“I am also of the firm view that the Respondent’s actions, in casu, fell foul of international labour standards in labour law. The Termination of Employment Convention No. 158 of 1982 ‘(C158)’ is in point. Under its equitable jurisdiction this Court can bring the principles of Convention C158 to bear in this case. This the Court can do because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon to determine.”

 

The NIC has expectedly taken the same position as its sister, Industrial Court of Botswana, as it too, like all labour courts around the world, has equitable jurisdiction granted by SS. 254C-(1)(f) of the Constitution and 12-15 of the NICA. Let me cite just one example of how the NIC applied the same ILO C158, which Nigeria has also not ratified. In Shell Petroleum Development Company of Nigeria Ltd v. The Minister of Petroleum Resources & Ors[3], His Lordship, Kanyip, HPNICN, quoted the authority of Arturo S. Bronstein[4], a highly qualified publicist, to utilize the ILO C158, a Convention, Nigeria, like Botswana, has also not ratified:

“Nigeria may not have ratified the International Labour Organisation (ILO) Termination of Employment Convention, 1982 (No. 158), the Convention that promotes security of employment globally. And I must acknowledge that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, ‘not only reflect a certain universal wisdom, they also enjoy a social legitimacy that would seem hard to challenge”

 

            The labour standards in these unratified conventions could also be utilised as general principles of international labour law or customary international labour law by virtue of Art 38(1)(c) of the ICJ Statute, once the benchmark of 15 years of general universal application is met; and the ILO C158, which came into being in 1982, has far surpassed the benchmark, having been consistently and universally applied across the world for the past 42 years. Arts 4 & 7 of ILO C158 are impactful here. They jointly insist that an employment can only be terminated for a valid reason and that; this is after the employee must have been heard before the discharge. Art 9 of the ILO C158 says the court shall be able to inquire into the circumstances surrounding the discharge and that; it is the employer’s duty to proof valid reason for the termination. This nullifies the common law in Nigeria that an employer can discharge without giving reason. That is the extant international best practice relating to termination of employment in civilized nations around the world and by virtue of SS. 254C-(1)(f)&(h) of the Constitution and 13&15 of the NICA, they are applicable under the equitable, fair labour practices and international best practices jurisdiction of the NIC - Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and Adegboyu v. UBA [supra], which both approved NIC’s jurisdiction to apply international best practices. Thus, that is the modern jurisprudence in this area of the law in Nigeria, and I so hold.

            I observe that in the discharge letter [Exhibit C5], no reason was given for the discharge. Going by the former position of law; that might have been the end of the case. But with the present position of the law, as ushered in by the Third Alteration Act and duly expatiated above, the NIC has a duty to inquire into the circumstances of the discharge as enshrined in Art 9 of the ILO C158. The law has therefore transformed in this regard. In any case, the defendant admitted in the pleadings that the reason for the discharge is guilt for sexual harassment thus, posthumously supplying the reason for the discharge. The implication of the new law is that, issue of fair labour practices has gone beyond matter of mere reflection on contracts of employment to a matter of fundamental employment right that is now read into all contracts of employment as statutory right; and the right to fair trial in disciplinary actions now transcends the realms of mere provisions in the contracts of employment, to compulsorily implied term of all contracts of employment in Nigeria. Thus, the common law in this regard has yielded to the superior force of statutory, nay, constitutional law.

            In virtue of the above, it is no longer possible to use the mere technicality of not specifically pleading the exact rule breached in the Staff Handbook as determinative of a case, where the allegation is that of denial of fair hearing or fair trial, which is an aspect of unfair labour practices enshrined in S. 254C-(1)(f) of the Constitution, and therefore, implied term of any contract of employment in Nigeria. In any case, that has even been the law before the advent of the Third Alteration Act that, employees must be given opportunity to defend themselves where allegations of misconducts are the basis of the discharge, whether or not this right is provided in the contract of employment – Avre v. Nigeria Postal Service (2014) LPELR-22629 (CA):

            “Where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to him to explain, justify or else defend the alleged misconduct… The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.” – [36-38, B-C]

 

            The defendant pleaded guilt for sexual harassment as the reason for the discharge. Now, let us examine if the law as stated above, which coalesced with the international best practices as earlier expatiated above, was fulfilled in the claimant’s discharge. The first port of call is Exhibit C2, the invitation letter to the panel. The claimant pleaded another letter of invitation, which he said was earlier and that; it was received Mar 19, 2014, inviting him for another function, which actually took him to Lagos before he received Exhibit C2, inviting him to the panel right in the defendant’s office in Lagos and, the panel sat as scheduled, but he did not tender this alleged first letter. I examined Exhibit C2 and found that it was sent Mar 20, 2014 at 5:24 PM, inviting the claimant to appear before the disciplinary panel at 9:30am Mar 21, 2024, that is, the very following day. With this scenario, was the claimant given adequate time to prepare for his defence? The misconduct charged was couched thus: “You are invited to meet with the Staff Disciplinary Panel (SDP) over an alleged Case of Sexual Harassment brought against you.” That is as much as the invitation letter tersely stated. We shall get back to this later.

            Was the claimant given adequate opportunity, as ordained in Avre’s case, to defend himself? That is our immediate concern now. I do not think he was given adequate opportunity to defend the allegation against him. Why? From the invitation letter, Exhibit C2, it was sent to the claimant in Enugu the previous day, Thursday Mar 20, 2014 at 5:24 PM, for him to appear at the panel at 9:30am in the defendant’s head office in Lagos the very following day, Friday Mar 21, 2014. And the claimant had to come from Enugu to Lagos, to appear before the panel, a judicially noticed distance of more than 500 kilometers, traversing 6 different states in Nigeria and, if he travelled by road, it is usually for duration of about 12 hours! Assuming the claimant noticed the mail on his phone at Enugu immediately it was sent at 5:24PM and started preparing to go to Lagos by Road, there is no way he could get to the meeting scheduled for 9:30am next day at Lekki, Lagos, even without taking into consideration the normal notorious chaotic traffic problems in Lagos. And it was totally unacceptable labour practice to expect the claimant to risk travelling all night for no sensible reason. It is reasonable to assume the claimant travelled by road because of the time the email was sent.

            The above circumstantially proves to the hilt that the claimant went to Lagos on the strength of another letter of invitation for an entirely different function, which was why he could make it to Lagos at all, and this other letter transformed to a letter of invitation to appear in a panel by the new email he received right in the defendant’s office in Lagos. DW1 did not deny the previous invitation letter under XX but only said the defendant had the right to invite the claimant, her employee, for a meeting, provided the notice for the meeting was served on the employee. This is an implied admission.

            I agree too with the claimant that, it was while in the premises of the defendant that he noticed the email conveying Exhibit C2, the invitation letter to appear before a panel. In any case, the claimant is entitled to a breathing space to prepare his defence and determine how to conduct it. How could this be achieved in the space of less than a full day [16 hours] out of which the claimant had to travel about 12 hours all night from Enugu to Lagos and had to weather the notorious traffic of Lagos to get to the venue the morning of the next day? Even if the claimant came by flight the very Marc 20, 2014, he was definitely not given adequate time to prepare his defence and, therefore; denied the opportunity of defending the allegation against him. To be given time to defend an action is to be given breathing space to search for necessary materials, arrange them and, be able to plan how to articulate them before the panel and not, the springing of surprise or accusation without a breathing space in order to disorganize and disorientate the accused. I therefore find that the claimant was not given adequate opportunity to defend the grave allegation of sexual harassment against him.

            I now examine whether the claimant was notified of the allegations against him. The Court of Appeal stated the law in this regard in Avre’s case [supra] that: “It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.” Thus, the important word there is “nature”. Online dictionary defines “nature” as: “the basic or inherent features, character, or qualities of something.” What are the basic features or qualities of accusations? A reasonable member of the society would say an accusation must include the circumstances of the alleged accusation and if it is an alleged offence against another person, the victim of the offence, and where, date and, under what circumstances the alleged offence took place. Anything short of these is vague and nebulous.

            The notice of the misconduct against the claimant in Exhibit C2, which did not contain any other detail than the blank accusation of sexual harassment, was therefore vague and nebulous and, he could not therefore be deemed to have had advance notice of the misconduct leveled against him before the trial, not to talk of having adequate time to prepare his defence. I therefor hold that the claimant was also not notified of the misconduct alleged against him, and was therefore denied fair hearing. The panel trial was therefore a travesty of fair labour practices. And this is more so in that, the defendant failed to tender the report of the trial or record of the proceedings to enable the court have a clear picture of what transpired in the alleged trial.

            The defence contention that the claimant ought to have asked for the report of the panel or its record of proceeding is misapprehension of the law. The defendant builds her defence on it and ought to know it is necessary to tender it. A person who makes negative imputation is not obliged to prove but the person who maintains the positive of the negative imputation is obliged to prove the truth of his positive assertion – Ariyo & Ors v. Julius Berger Nigeria Ltd & Anor (2016) LPELR-41474 21-22, A-B and Art 9(2)(a) of the ILO C158. The claimant has proved how he was denied fair hearing. It is the duty of the defendant who insisted she gave him fair hearing to prove how, by tendering the record of the proceedings. But let me state here that, even if the record of proceedings were tendered, it would not prove fair trial, as the allegations of denial of fair trial were substantially external to it, being essentially about things which happened before the trial. Be that as it may, the investigation after trial is also a clear indication that everything is wrong with the trial because; it was after the trial that the claimant was suspended pending investigation and, he was never recalled to face the outcome of the investigation but was abruptly discharged. It means it was after the trial that the defendant went fishing for evidence behind the claimant to nail him without giving him the opportunity to counteract the evidence fished out at the post-trial investigation. That is perverse and constitutes a travesty of justice. This tallies with the claimant’s evidence that the panel produced no evidence against him at the trial and had a preconceived result they worked towards.  

            Therefore, the defendant breached its R II at p. 3 of the Staff Handbook [Exhibit C3] by failing to give the claimant fair and equitable treatment. Both sides relied on the same Staff Handbook as tendered by the claimant. So, no question about the form in which it was tendered arose. I understand from the evidence on record that, the claimant said he was not given the Staff Handbook at inception and that, he had no access to it and that, the notice to produce was not obeyed. The defendant did not deny but rather confirmed it, when she said during trial that she had no access to the document too, as a result of the takeover. This gives the claimant the vires to tender the one in his possession and the Court must countenance it by virtue of S. 91(b)&(e) of the Evidence Act.

            In all, I find that the claimant proved wrongful discharge. The next thing is to examine which relief the claimant is entitled to because, granting of reliefs is the logical nexus to proving a case. And in doing this, because of the NIC’s specialised nature, which also reflects on the type of reliefs and orders it could make, I rely on S. 14&19(d) of the NICA and the NIC’s inherent powers under S. 6 of the Constitution in the consideration of the reliefs. The necessary order a court makes once it arrives at breach of the fundamental right to natural justice and fair trial is setting aside the trial and all that emanated from it. I accordingly set aside the purported trial of the claimant that took place Mar 21, 2014 and accordingly declare the discharge wrongful. I therefore grant relief (1) in full. I grant relief 2 to the extent that that the claimant is deemed to have voluntarily resigned at the date of he discharge letter and; the discharge letter is hereby converted to letter of acceptance of voluntary resignation.

            I therefore accordingly order that all the terminal entitlements due for serving 7 years 9 months [Jul 20, 2006–Apr 22, 2014], which the claimant served, be calculated and paid to the claimant accordingly. A letter of acceptance of his resignation backdated accordingly must be issued to him within one full month of this decision. I cannot grant relief 3 in full because, it is nebulous as to how the claimant arrived at the figures without tendering and pointing to the authority for these in the Staff Handbook or any other instrument like promotion letter containing these. Para 27 of the ASF shows clearly that the claimant is claiming till date, in a way, saying that he is still in the defendant’s employment, a fact, which the manner of my grant of relief 2 has nullified. The claimant is only entitled to his earned salary and allowances which were due, if any, as at Apr 22, 2014 when he was deemed to have voluntarily resigned and these must be calculated, if any, apart from his terminal benefits, which I have ordered to be paid earlier, and paid to him. Relief 3 is granted to that extent only.

            By the authority of Sahara Energy Resources Ltd v. Oyebola [supra], the Court of Appeal, approved two years salary as lump sum in compensation for wrongful termination and SS. 14 & 19(d) of the NICA, I also grant two years salaries [24 months] as damages in the instant case for the wrongful termination, travesty of justice and the stress and psychological torture which the claimant was subjected to in the Kangaroo trial and discharge. The claimant pleaded N154,949.14 as his Mar 2014 salary in para 28 of the ASF. The defendant did not dispute this. The two years salary granted as damages should be calculated based on the N154,949.14, which is N3,718,781.76 [Three Million, Seven Hundred and Eighteen Thousand, Seven Hundred and Eighty-One Naira, Seventy-Six Kobo] and paid to the claimant. That is as far as I granted relief 4. Since cost follows events, I grant cost of N800Thousand [Eight Hundred Thousand Naira] only, taken into consideration the high inflation in Nigeria since the case was filed 6 years ago. I grant one full month moratorium from the date of this judgment for the judgment to take effect. I also grant 15% simple interest rate on the judgment sums, which shall begin to run at the end of the one full month moratorium. Having considered the reliefs claimed and granted those that are grantable, I must now end the life of this case.

 

CONCLUSION

In concluding this judgment, I reiterate the reliefs granted as follows:

(1) I grant relief (1) in full.

(2) I grant relief (2) to the extent that the claimant is deemed to have voluntarily resigned his appointment Apr 22, 2014 and consequently, the defendant shall issue to the claimant letter of acceptance of his voluntary resignation backdated to Apr 22, 2014 within one full month of this judgment and, shall also calculate and pay to the claimant his terminal benefits for the 7 years, 9 months he served.

(3)Relief 3 is granted only to the extent that the defendant is hereby ordered to pay to the claimant his earned but yet to be paid salary and allowances to Apr 22, 2014.

(4)Relief (4) is granted to the extent that the defendant shall calculate and pay to the claimant his two years [24 months] salaries as lump sum on the basis of N154,949.24 monthly salary, which is N3,718,781.76K, as damages for the wrongful termination, psychological trauma and mental stress.

(5)Cost of N800Thousand [Eight Hundred Thousand Naira] only is awarded against the defendant in the claimant’s favour.

(6)15% simple interest rate per annum is granted on the judgment sums to start running after one full month of this judgment until fully liquidated.

 

            That being the end of the reiteration of the reliefs granted: that ends the case. I accordingly enter this judgment this day, Tuesday Aug 13, in the year 2014, under my very hand, as the presiding judge.

 

…………………………..

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA