WD
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: August 02,
2024 Suit No:
NICN/PHC/149/2018
Between:
Pastor, Dr. Williams A. S. Abomaye-Nimenibo --------------------------- Claimant
And
Nigerian National Petroleum Corporation (NNPC) -------------------------- Defendant
Representation:
F.K. Amachree for the Claimant.
P.A. Johnmark for the Defendant
COURT’S JUDGMENT
1.0.
On December 21,
2018 the Claimant sued the Defendant by way of complaint and seeks for the
following reliefs against the Defendant:
i.
A Declaration that
the Claimant's suspension and eventual dismissal from work via letters dated 23rd
January, 2015; 22nd June, 2015 and 15th February, 2018 is
wrong and unlawful.
ii.
An Order of Court
setting aside the alleged suspension and subsequent dismissal of the Claimant
from the services of the Defendant.
iii.
An Order of Court
reinstating the Claimant to the services or employment of the Defendant with
all the attendant promotions, allowances, entitlement, benefits and other
welfare packages from 23rd January, 2015 till the date of judgment
including the promotions as Deputy Manager in 2015 promotion exercise and in
2019 as full Manager on Salary Grade M5.
iv.
An Order of Court
directing the Defendant to pay to the Claimant all his entitlements,
allowances, benefits and all other welfare packages due to him from June 2016 till
the date of judgment including the ones that he was denied when he was in
service such as increment of at least 5% in 2015 for working in 2014 and when
his appraisal forms were changed many times and finally given a zero increment
which was influenced by Mr. Christopher Osarumwense contrary to the Corporate
Policy Procedure Guide.
v.
An Order of Court
directing the Defendant to pay to the Claimant the N3.8m representing the N2.8m
pre-commission expenses of FMS Ibaka and Uta-Ewa since 2012 as well as over N1m.
claim over expenses at FMS Oporoma; as well as the training for Chief Officers'
Course with its financial benefits of N1.5m.
vi.
An Order of Court
directing the Defendant to pay to the Claimant his travelling allowances of N1.5m
representing the two weeks in lieu of hotel and both inter and intra transport
expenses from Port-Harcourt to Abuja in January 2015 when invited by Mr.
Christopher Osarumwense MD of NNPC Retails Ltd during the initial investigation
and N1.0m when invited to Abuja for one week by the Corporate Headquarters to
attend the Ad-Hoc Committee meeting in June 2016.
vii. An Order of Court directing the Defendant to pay to
the Claimant N28,976,603.79 (twenty
eight million nine hundred and seventy six thousand, six hundred and three
Naira and seventy nine Kobo) in addition to about N80,000,000.00 (eighty
million Naira); his gratuity of about N100,000,000.00 (one hundred million.
Naira); his relocation allowance which was 15% of the terminal base salary; his
Christmas bonuses for each year from 2018 until the matter is resolved and he
is reinstated; long service award of about N50,000.000.00 (fifty million Naira)
etc.
viii.
An Order of Court
directing the Defendant to pay to the Claimant all the money he spent in
funding the haul aging of all the products ferried from Ogbia jetty to FMS,
Nembe between August 2012 and December 2013 when he oversees the FMS Nembe
since neither NNPC nor the Dealer Zed Energy did spend a dine in transporting
the product, repairs of their barge, fueling of their Speed Boat, payment for
escort of the product and feeding of the staff to the tune of N18,260,302.50
that is 5,533,425 litres with interest thereof.
ix.
The sum of
N25,000,000,000.00 (twenty five billion Naira) being damages for breach of
contract and unlawful dismissal.
x.
The sum of
N25,000.000,000.00 (twenty five billion Naira) as aggravated and exemplary
damages.
2.0. Other initiating processes were filed
along with the Complaint in line with the Rules of this Court. In response, the
Defendant entered appearance through its counsel and filed its Statement of Defence
together with other defence processes in compliance with the Rules of this Court.
3.0. The
Case of the Claimant as Pleaded
The Claimant states that he worked as an Assistant
Administrative Supervisor for the Defendant until his abrupt dismissal. He claims
that during his time with the Defendant, he served the defendant competently
and honestly in various capacities and never received any query neither did he
receive any negative report until the events that led to his dismissal. He
asserts that he tried to expose corruption within the Defendant’s office,
leading to his targeting and eventual dismissal. The Claimant argues that the
Defendant took no action against Mr. Victor Ekwe, the Manager of FMS Nembe, and
others responsible for the corruption, choosing instead to dismiss him.
4.0. The Case of the Defendant
as Pleaded
The Defendant argues that the Claimant’s dismissal
was lawful due to his gross negligence and dereliction of duty, which resulted
in a significant financial loss of N243,120,944.00 at FMS, Nembe, while the Claimant
was the Head, FMS Nembe. The Defendant claims this loss occurred while the
Claimant was the Head of FMS Nembe between August 2012 and January 2015.
5.0. During the hearing, the Claimant testified as CW1 and Mr.
Ziyyanu Mohammed testified as DW1 for the Defendant. The Court then instructed
both parties to submit their final written addresses in accordance with the Court’s
rules, which they did.
6.0. Defendant’s Final
Written Arguments
In the Defendant’s Final Written Address on page
1257 of the record, counsel initially objected to the admissibility of Exhibit
C.42, the ‘Dealership Agreement’, arguing that the document was unsigned and
undated, rendering it worthless. They cited cases such as A.G. Abia v. Agharanya [1999] NWLR (Pt. 607) 362 at 371 para. D-E
and Omega Bank (Nig.) Plc. v. O. B. C.
Ltd [2005] 8 NWLR (Pt. 928) 547 at 576 para E-F & pg. A-D. (SC).
7.0. Counsel further framed the following
issues for the determination of the Court:
i.
Whether the
dismissal of the Claimant whose negligence and dereliction of duty occasioned
the huge financial loss of N243,120,944.00, suffered by the Defendant between
25th August, 2012 and 31st December, 2013 was justified?
ii.
Whether the Claimant
has discharged the onus on him to prove the allegation of unlawful termination
of employment?
iii.
Whether the Claimant
who desires any legal right or liability dependent on the existence of facts
which he asserts must prove that those facts exist?
iv.
Whether the Claimant who is dismissed from service by
the Defendant for gross negligence and dereliction of duty is entitled to
damages for breach of contract?
v.
Whether the Claimant has proved that the action of the
Defendant is outrageously reprehensible or grossly reckless to be entitled to
exemplary damages?
8.0. Arguing
the first issue, counsel submitted that the termination of the Claimant’s employment
was a result of his negligence and dereliction of duty. These facts are an inevitable
conclusion drawn from the fact that while the Claimant was the head of FMS,
Nembe the Defendant suffered a huge financial loss at FMS, Nembe and the Claimant
failed to discharge his duty to attain the standard of care, resulting in his
dismissal.
8.1. Counsel
referred the Court to the cases of Makwe
v. Nwukor [2001] 14NWLR (Pt. 733) 356; U.B.A. Plc v. Ogundokun [2009] 6 NWLR (Pt. 1138) 450 at 486
paragraphs F-G; I.M.N.L. v. Nwachukwu
[2004]13 NLWR (Pt. 891) 543 at 560 para A, paragraphs 8, 10, 18, 26 and 35 of
the Claimant’s statement on Oath, Exhibit C.8, Category B, item 16.0 and the
report of the Ad-Hoc Disciplinary Committee Exhibit D.12.
8.2. Counsel
continued that the dismissal of the Claimant was in line with the provisions of
Section 18.10.6 (iv), NNPC Corporate Policy and Procedure Guide (CPPG), Exhibit
C 30 which gives the Defendant the power to dismiss or terminate the
appointment of the Claimant for negligence via a Letter dated 15/02/2018-
Exhibit D14, citing Damisa v. U. B. A.
Plc. [2005] 9 NWLR (Pt. 931) 526 at 539 paragraph E.
9.0. Arguing issue two, counsel submitted
that the Claimant was lawfully suspended and dismissed from the services of the
Defendant on the grounds of gross negligence and dereliction of duty, which caused
a colossal loss of N243,120,944.00 to the Defendant.
9.1. Referring to Oloruntoba Oju v. AbdulRaheem [2015] 13 NWLR (Pt. 1157)82 at
136, paras. F-H and Section 18.10.6 (iv) of NNPC Corporate Policy and Procedure
Guide (CPPG); Exhibit C.30, counsel submitted that as a result of the said loss
of revenue, the Defendant issued to the Claimant, the following letters: a letter
of query dated 23/6/2014, Letter of Observation dated 22/6/2015; Letter of
Suspension from Duty on Half Pay dated 10/5/2016 and Letter of Dismissal from
the Services of the Corporation dated 15/2/2018, Exhibit D14.
9.2. Counsel went on that the Claimant
failed to show that his signature was obtained by fraud, referring to the
findings of the Reconciliation Committee Report (Exhibit C.18) and that Exhibit
D.6 is the report of the NNPC Retail Investigative Committee on FMS, Nembe.
Counsel urged the Court to dismiss Claimant’s reliefs 1,2,3,4 and 7 as lacking
in merit in the circumstances of this case.
10.0. Arguing issue three, counsel submitted
that it is settled law that he who asserts must prove, citing Nammagi v. Akote [2021] 3 NWLR
(Pt. 1762) 170 at 188 paras C-E .
That the Claimant’s claims 5, 6 and 8 are without any proof whatsoever hence,
should be dismissed. Counsel referred the Court to the cases of Bida v. Abubakar [2011] 5NWLR (Pt. 1239)130
at 180, paras. F-G and Ate Co. Ltd v.
Mil. Gov. Ogun State [2009] 15 NWLR (Pt. 1163) 26 at 70-71, paras. H-B.
11.0. Arguing issue four, counsel submitted
that from the totality of the evidence in this case, the Claimant was negligent
in the performance of his duties at FMS Nembe, Bayelsa State; thus, the
termination of his employment was lawful. Counsel referred the Court to Ekegwu v. Nigeria Army [2006] 11 NWLR
(Pt.991) 387.
12.0. Arguing issue five, counsel referred the
Court to F.B.N. Plc. v. A.-G., Fed
[2018] 7 NWLR (Pt. 1617) 121; Ilouno v.
Chiekwe (1991) 2NWLR (Pt. 173) 316
at 325 paragraphs E-F. He continued that the
Defendant has not acted arbitrarily or unconstitutionally in the circumstance
of this case.
13.0. Claimant’s Final
Written Arguments
In the Claimant’s Final Written Address at page
1301 of the record, while responding to the objection to the admissibility of
the ‘Dealership Agreement’ – Exhibit C.42 in evidence; counsel submitted that the
document, Exhibit C.42 is used as a template or sample of contract entered into
by the Defendant, referring to paragraphs 23, 24(d) and 35 of his Reply to the
Further Amended Statement of Defence.
14.0. Counsel then formulated the following
issues for the determination of the Court:
i.
Whether the Claimant
proved that he was unjustifiably dismissed from the services of the Defendant
and thus entitled to his claims against the Defendant?
ii.
Whether the Defendant
proved its case of criminal negligence against the Claimant as to dismiss him
from its services and deny him his rights?
15.0. Arguing the first issue, counsel submitted that based on the Claimant’s
Statement of Facts, his Reply to the Defendant’s Further Amended Statement of
Defence and his evidence; the Claimant’s appointment was unjustifiably, unceremoniously,
premeditatedly, maliciously, spitefully and willfully dismissed by the Defendant,
Counsel referred to paragraph 1 of the Statement of Facts and paragraphs 1 and
29(a) of the Reply to Further Amended Statement of Defence. Counsel further argued
that the Defendant did not specifically deny the allegations in these
paragraphs in its defence, particularly the fact that Mr. Ngozi Anyakora, the
NNPC Retail Ltd. South-South Regional Manager and Depot Manager overseeing the
region was involved in the dismissal.
15.1. Counsel continued by pointing out that
the Claimant raised concerns about bias and lack of fair hearing in some of the
Panels’ Reports, especially in the 7-Man Ad-hoc Disciplinary Committee in Exhibit
D.12. This Committee was established solely to find the Claimant guilty, as
indicated in paragraphs 53, 54 and 55 of the Statement of Facts and paragraphs
21(c), 28(e), and 39(a) of the Reply to the Further Amended Statement of
Defence. The Defendant was accused of violating its own rules, as referenced in
paragraphs 61, 63, and 65 of the Statement of Facts and paragraphs 29(e), (f), (g),
(h) (i) and (j), 30(f) and (g), 33, 38(b),(c),(d), 39(a),(b) and (c) of the
Reply to the Further Amended Statement of Defence. Exhibits C.32 and C.33 were
also cited as evidence.
15.2. Counsel proceeded to argue that the Defendant
failed to exhaust or explore all means of fair hearing as outlined in the
Corporate Policy & Procedure Guide (CPPG) under sections 18.2, 18.10.2,
18.10.4, 18.10.5, 18.9.3, 18.9.4, and 18.10 (1-6) before dismissing the Claimant.
Counsel contended that the Claimant’s dismissal by the Defendant was wrongful,
unjustified, malicious, unceremonious, spiteful, driven by ill will, an attempt
to conceal corruption, and that the Claimant is entitled to all his claims
against the Defendant as stated in paragraphs 56, 57, 58, 63 and 70(a) and (b)
of the Statement of Facts.
16.0. Addressing the second issue, counsel argued
that while the Defendant claims the Claimant was criminally negligent and
caused losses to the Defendant, including the sum of N243,120,944.00, the Defendant admitted that Zed Energy Ltd and
Victor Ekwe were the actual perpetrators of the alleged crime. Counsel believed
that the documentary inconsistencies of the Defendant support the Claimant’s position
and cited the case of Attorney-General
of Anambra State v Attorney-General of the Federation & Anor [2022]
NSCQR (Pt. 11) 572 at 625 as precedent.
16.1. Responding to issues 1 and 2 in paragraphs
5.1.1 – 5.1.33 regarding negligence in Tort in the Defendant’s Final Written Address,
counsel submitted that while these authorities apply to the specific cases
cited, they are not applicable to this case and do not provide useful guidance.
16.2. Counsel
further argued that the Defendant, after identifying the perpetrator of the
fraud as admitted by them, took additional steps. This was despite the
Claimant, who had served for over 30 years without any queries or warnings and
had never breached the Corporate Policy & Procedures Guidelines, ignoring
the recommendation in Exhibit D.12 and dismissing him abruptly without a
warning letter. The Defendant also blatantly disregarded the CPPG, as shown in Exhibit
30, by suspending the Claimant on half salary for over a year until Exhibit C.37
was sent to them by the Claimant’s Counsel. This action violated sections
18.10.4 and 8.9.3 of Exhibit C.30 – CPPG (Corporate Policy & Procedure
Guide).
16.3. Responding
to the Defendant’s third issue, counsel directed the Court to the relevant submissions
in the Claimant’s Final Written Address.
16.4. Regarding
the Defendant’s fourth issue, Claimant’s counsel argued that Defendant failed
to prove their case of negligence against the Claimant.
16.5. In
response to the Defendant’s fifth issue, the Claimant’s counsel asserted that
the Claimant is entitled to exemplary and/or aggravated damages against the Defendant.
17.0. In the Defendant’s Reply
on Points of Law on page 1322 of the file.
Counsel referred the Court to Section 43.14 of the Defendant’s
CPPG and cited cases such as Ejezie v.
Anuwie [2008] 12 NWLR (Pt.???) 446
@ 483, paragraphs B-E; Agip v. Agip
[2010]1 S.C. NJI @49 LINE15 and S. P.
D.C.N. Ltd v. Okeh [2018] 17 NWLR (Pt.1649) P. 435 para G before
proceeding to re-argue the case.
18.0. COURT’S DECISION
After reviewing the facts of this case and the
written arguments of both parties’ counsel along with the authorities’ cited, including
statutes and case laws. From all of these, I am of the considered view that
this Court need to resolve the following issues between the parties:
i.
Is Exhibit C.42,
the ‘Dealership Agreement’ at pages 1203 to 1239 of the record admissible? Did
the Defendant satisfactorily prove its case of criminal or gross negligence
against the Claimant?
ii.
Was the suspension
of the Claimant in line with the provisions of Exhibit C.30 - the Corporate Policy
and Procedure Guide (CPPG) at 319? Was his dismissal wrongful and unlawful?
iii.
Is the Claimant
entitled to reinstatement or his unpaid salaries for the period of his
suspensions and to the balance of his terminal benefits? Has the Claimant
proven that the defendant’s actions warrants exemplary damages?
19.0. INTRODUCTION:
What is The Nature of This Employment Relationship & What Regulate(s) The Employment Relationship
Between The Parties?
19.1.0. Nature
of the Employment Relationship between the Parties.
It is important to note that the evidence presented
by the Claimant did not indicate that his employment with the Defendant had
statutory flavour. Employment with statutory flavour is created when the
procedures for employing an Employee and determining that employment are
governed by statute as seen in cases like Imoroame
v. WAEC [1992] 9 NWLR (Pt. 265) 303; Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599
and Olufeagba v. AbdulRaheem [2010]
All FWLR (Pt. 512) 1033. Counsel to the Claimant did not refer the Court to any
law regulating the employment relationship between the parties.
19.1.1. Furthermore, being employed by a Statutory Body
does not automatically mean that the conditions of service for its employees
must be of a special nature thereby, excluding them from conditions applicable
to master and servant relationship. It is only when that employment is
protected by statute, outlining the procedure for the creation and the termination
of such employment that the employment is said to be clothed with statutory
flavour; see the cases of FMC Ido-Ekiti
& Ors v. Alabi [2011] LPELR-10931(CA) (Pp. 61-63 paras. B); Central Bank of Nigeria v. Igwillo [2007] 14 NWLR (Pt.1054)
386 @ 393 and Olaniyan v. University
of Lagos [1985] 2 NWLR (Pt.9) 597. Therefore, I find and hold that the Claimant’s
employment with the Defendant was not with statutory flavour. In addition, I
find and hold that the employment relationship between the parties in this case
was a private one formerly known as Master and Servant Relationship.
19.2.0. What
Regulate(s) The Employment Relationship?
It
is the law that in order to determine the correctness and incorrectness of an
employee’s dismissal, the terms of employment of the aggrieved employee must be
examined to ascertain whether the correct procedure was followed. Where there
is departure from the prescribed procedure or a violation of the elementary
rules of natural justice in a private employment, then the dismissal is
wrongful; see Eze v. Spring Bank Plc.
[2011] LPELR-2892(SC) (Pp. 52 paras. A). It is imperative for the Court to
determine the term and conditions governing the employment relationship between
the parties.
19.2.1. The
Claimant pleaded in the Statement of Facts and tendered several documents in
evidence as exhibits including his Offer of Appointment as Exhibit C1 at page
37 of the record, Letter of Confirmation as Exhibit C2 at page 38 of the record
as well as the Letters of Promotions as Exhibit C.3 at pages 39 to 45 of the record along with some other documents, such
as Exhibit C.30 – ‘Corporate Policy and Procedure Guide’ (CPPG) at 260 to 373
of the record.
19.2.2. Consequently,
in determining the respective rights, duties and liabilities of the parties in this
case, I find and hold that the following exhibits will be considered by the Court
in this judgment: the Offer of Appointment, Exhibit C.1; Letter of Confirmation,
Exhibit C.2; the Letters of Promotions, Exhibit C.3 and the Corporate Policy
and Procedure Guide (CPPG), Exhibit C.30.
20.0. ISSUE
ONE:
Is Exhibit C.42 ‘Dealership Agreement’ at pages
1203 to 1239 admissible? Did the Defendant prove its case of criminal or gross negligence
against the Claimant?
20.1.0. Is
Exhibit C.42 ‘Dealership Agreement’ at pages 1203 to 1239 of the record admissible?
20.1.1. In paragraph 3.7.1 of his Final Written
Address, the Defendant’s counsel objected to the admissibility of Exhibit C.42 ‘Dealership
Agreement’ on the ground that the said Exhibit is unsigned by any of the purported
makers and is undated. He argued that the exhibit is worthless. The Claimant’s
counsel responded to this objection in paragraphs 4.0 to 4.1 of his Final
Written Address and argued that Exhibit C.42 was used as a template or sample
of a contract entered into by the Defendant and Dealers-Hauliers, with the
intention of showing such template agreement.
20.1.2. Exhibit
C.42, ‘Dealership Agreement’ at pages 1203 to 1239 of the record is neither
signed nor dated. In Law, this exhibit is worthless and it has no evidential
value; thus, it is not reliable. See the cases of Dantiye & anor v. Kanya & ors. [2008]
LPELR-CA/K/EP/NA/26/2007; Kwara
Investment Co. Ltd. v. Garuba [2000] 10 N.W.L.R. (Pt. 764) 25/39 paragraph
G & Global Soap & Detergent Ind.
Ltd. v. NAFDAC [2011] LPELR-CA/IL/13/2007 Additionally, Exhibit C.42 is
between “NNPC Retail Limited and Padeca Integrated Projects Ltd.”, see page
1203 of the record while this case involves ‘Pastor Dr. Williams A. S.
Abomaye-Nimenibo v. NNPC’. In other words, this Exhibit is not related to the
parties or the issues in dispute between the parties in this case and I so find.
20.1.3. The law is that the relevance of a document
determined its admissibility, see the case of: Nwabuoku & Ors v. Onwordi & Ors [2006] LPELR-2082(SC) (Pp.
20-21 paras. F). Since the document is irelevant to this case and it is neither
signed nor dated; I find and hold that Exhibit C.42 ‘Dealership Agreement’ at
pages 1203 to 1239 of the record, has no legal value in this case. I further
hold that the exhibit was erroneously admitted in evidence by this Court;
it is therefore, discountenanced and expunged from this Judgment.
20.2.0. Did the Defendant Satisfactorily Prove Its Case
Of Criminal or Gross Negligence Against The Claimant?
In Law, a claim for Negligence can be activated in
the following circumstances: (a) on proof of the happening of an unexplained
occurrence, (b) when the occurrence is one which would not have happened in the
ordinary course of things without the carelessness on the part of somebody other
than the Plaintiff/Claimant and (c) the circumstances point to the inattention
of the Person/Defendant rather than any other person; see F.B.N. Plc v. Banjo [2015] 5 NWLR (Pt.452) 253.
20.2.1. It is the case of the Defendant that although
the Claimant served the Defendant for several years, he was lawfully dismissed
on 15/2/2018 via Exhibit D.14 when
it was discovered that due to the gross negligence and dereliction of duty of
the Claimant, the Defendant incurred a huge loss. According to the Defendant,
the Claimant breached paragraph 1.6.2 at page 6 of the Floating Mega Station
Operational procedure by engaging Victor Ekwe while he was on suspension
instead of demanding his immediate replacement. Mr. Victor Ekwe who was
allegedly recalled arbitrarily by the Claimant is said to be grossly involved
in the colossal loss of N243,120,944.00 at FMS, Nembe. See paragraphs 5, 20 and
21 of the Further Amended Statement Defence and paragraphs 5.1.2, 5.1.23,
5.1.29 of the Defendant’s Final Written Address.
20.2.2. The case of the Claimant on the other hand is
that, he did not unilaterally appoint
Mr. Victor Ekwe but his boss, the then GM, FMS Mr. Ladipo Fagbola agreed not to
dismiss but to use the staff of Zed Energy that are familiar with the terrain
including Mr. Victor Ekwe in order to succeed in that unfriendly environment.
He further stated that the NNPC Management was fully aware of the retention of
all staff of Zed Energy. See paragraph 14 of the Claimant’s written depositions
in reply to the statement of Defence.
20.2.3.
Exhibit D5 is titled: ‘Floating Mega Stations
(FMS) Operational Procedures’, and it is at pages 527 to 528 of the record.
Section 1.6.0 thereof is on the ‘Rights of intervention’; sections 1.6.1 and
1.6.2 of this exhibit state the following:
1.6.1
- During the course of normal operation, if NNPC representatives are of
the view that the conduct of the affairs at the FMS is substantially at
variance with agreed operating procedure and standards, this matter shall be
promptly brought to the attention of the Dealer-Haulier of the station for
immediate remedy. If NNPC Representatives are still dissatisfied, the NNPC
shall have the right to instruct the station Management to suspend sales and
all other operation until such a time when the issues complained of are restored.
In all instances, even when the problem has been satisfactorily addressed, the
occurrence of the situation may be brought to the attention of the Dealer-Haulier
by NNPC, at least for record purposes.
1.6.2
- Where the employers of the Dealer-Haulier
or any other persons engaged in the course of operating the FMS are found to
exhibit conduct usually associated with retail operations, NNPC shall have the
right to instruct the station management to disengage such person immediately
and replace them with other competent personnel.
20.2.4. Based
on the content of Exhibit C.5 as shown above, it is evident that the defendant
had a responsibility to oversee the operation of FMS Nembe. Additionally, it is
clear that the Claimant folloed the directives of the Defendant at FMS Nembe at
the material time. With the testimony of the Claimant in paragraph 14 of his sworn
statement and the Defendant’s acknowledgment
that Zed Energy Ltd and its staff, Victor Ekwe were responsible for the fraud, resulting
in a loss of N243,120,944.00 at FMS, Nembe, it is apparent that the Claimant did not independently appoint Mr.Victor Ekwe but he acted under the guidance of
his superior Mr. Ladipo Fagbola the GM of FMS Nembe. Mr Fagbola chose to retain
the staff of Zed Energy staff, including Mr. Victor Ekwe, due to their
familiarity with the environment, indicated in paragraphs 5, 20 and 21
of the Further Amended Statement of Defence and paragraphs 5.1.2, 5.1.23 and
5.1.29 of the Defendant’s Final Written Address.
20.2.5.
Additionally, I find that the NNPC
Management was fully aware of the retention of all the said staff of Zed Energy
because, it was the GM, FMS; Mr. Ladipo Fagbola, the Claimant’s direct boss who
preferred to work with the suspended Zed Energy and it staff including the
controversial Victor Ekwe. Consequently, I hold that the Claimant was not
negligent at all in retaining Victor Ekwe in the FMS Nembe because he acted on
the instruction of his boss, Mr. Ladipo Fagbola. I further hold that the Claimant
cannot be held to be responsible for the alleged negligence in view of the
provisions of paragraphs 1.6.1 and 1.6.2 of Exhibit D.5. Consequently, I hold
that the Claimant is not negligent at all for the loss of the sum of
N243,120,944.00 for continuing to use the staff of Zed energy, particularly Mr.
Victor Ekwe as argued by the Defendant. And finally on this issue, I hold that
the Defendant failed woefully to prove its case of Criminal or gross Negligence
against the Claimant in this case.
21.0. ISSUE TWO:
Was the suspension of the Claimant in line with the
provisions of Exhibit C.30 - the Corporate Policy and Procedure Guide (CPPG) at
319? Was his subsequent dismissal wrongful and unlawful?
21.0. Was the Suspension of the Claimant from Work Proper?
21.1. In his first and second reliefs, the Claimant seeks a declaration
that his suspension and eventual dismissal from work were wrong and unlawful.
He also praying for an Order of Court setting aside the alleged suspension and
subsequent dismissal.
21.1.1. The law places the onus on an employee who alleges the wrongful determination
of his employment to put before the Court the terms of the contract of
employment before proceeding to prove the manner of its breach by the employer.
It is not the duty of the Defendant to prove these terms. The case of a Claimant
stands or falls upon his own evidence and not upon the weakness of the defence,
because he who asserts must prove; see the cases of: Kwara State Civil Service Commission & Ors v. Abiodun & Ors
[2009] LPELR-8900(CA) (Pp. 56-69 paras. E-E) and West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt
187) 165 at 189-At 199 paras C-E.
21.1.2. Exhibit C.30 before the Court is the NNPC’s (the Defendant’s)
Corporate Policy and Procedure Guide (CPPG), it is at pages 260 to 373 of the
record.
Section 18.10.4 and 18.10.5 of Exhibit C.30 is on
Suspension from duty. Section 18.10.4 is on Suspension from duty on half pay
and it states thus:
An employee whose conduct is
under investigation may be suspended from duty for length of time as the
Corporation deems fit. An employee on suspension shall be entitled to only one
half of his consolidated salary during suspension. His identity card should
also be withdrawn from him for the period. Where a staff is proved innocent and
restored to duty, the amount withheld should be paid to the staff. Management
should, however, ensure that the period of such suspension does not drag
indefinitely.
Section
18.10.5 of Exhibit C.30 is on suspension from duty without pay and it states
thus:
Acts of any serious misconduct
shall be punished with suspension without pay for a period not exceeding six
(6) months.
Employees issued with letters
of suspension without pay shall also forfeit the following benefits for that
given year:
iii (sic) Performance incentive bonus.
iv.
Promotion or annual increment.
See pages 318 & 319 of the record for these
provisions.
21.1.3. Two letters of suspension were issued
to the Claimant from the Court’s record. The first one is titled ‘Letter of
Suspension from Duty’ dated January 23, 2015. It is Exhibit C.26 in this case,
see page 257 of the record. The second one is titled: ‘Letter of Suspension
from Duty on Half Pay’ dated May 10, 2016; it is Exhibit C.27 and it’s at page
258 of the record.
21.1.4. In the first Letter of Suspension from Duty
of the Claimant, Exhibit C.26; the suspension is with immediate effect. The
letter has two paragraphs, which state as follows:
Following the Retail Management Investigative
Committee Report on the alleged mismanagement of the Nembe Floating Mega
Station (FMS), under your stewardship as Head FMS, from 25th August,
2012 to 31st December, 2013 and the inability to account for
products amounting to N234,880,189.00 (Two Hundred and Thirty Four Million,
Eight Hundred and Eighty Thousand, One Hundred and Eighty Nine Naira) only,
Management has approved your suspension from duty as Head FMS, Nembe with
immediate effect.
You are to immediately hand over your duties to the
Regional Head, South – South and report to the MD, NNPC Retail Ltd. by Monday,
26th January, 2015 for further directives.
The 2nd letter of suspension from duty
on half pay is also with immediate effect from May 10, 2016 when it was issued.
21.1.5. The question now is
whether these suspensions complied with the provision of Section 18.10.4 and
18.10.5 of Exhibit C.30; which is the Defendant’s Corporate Policy and
Procedure Guide (CPPG). The letters of suspension, Exhibits C.26 and C.27 were
issued on January 23, 2015 and May 10, 2016 respectively. However, the Claimant
was dismissed with immediate effect on February 15, 2018; see Exhibit C.35 at
page 386 of the record.
21.1.6. The 1st letter of suspension did not specify that
part of the Claimant’s salary would be paid to him. This means that the
suspension was without pay under section 18.10.5 of Exhibit C.30 and it ought
to have been for maximum of six months. However, Exhibit C.26 was issued on January
23, 2015 and the 2nd letter of suspension was issued on May 10,
2016. From January 23, 2015 to May 10, 2016 is one year, three months and
Seventeen days (1 year, 3 months & 17 days). This is contrary to the
provision of section 18.10.5 of Exhibit C.30, which states that the suspension
shall be for maximum of six months. In the circumstance, I find and hold that
the 1st suspension letter did not comply with the provision of section
18.10.5 of Exhibit C.30; the Defendant’s CPPG. Therefore, I hold that the 1st
suspension letter Exhibit C.26 was not properly issued to the Claimant by the Defendant.
21.1.7. The 2nd letter of suspension with half pay (Exhibit
C.27) was issued on May 10, 2016 and the Claimant was dismissed on February 15,
2018 after one year, nine months and five days that the 2nd
suspension with half pay was issued. By the provision of section 18.10.5 of
Exhibit C.30, I find and hold that the 2nd suspension letter complied
substantially with the provisions of section 18.10.4 of Exhibit C.30; the Defendant’s
Corporate Policy and Procedure Guide (CPPG) and so, I hold that Exhibit C.27
was properly issued by the Defendant.
21.2.0. Was the Claimant’s dismissal wrongful and unlawful?
I have held in this judgment that the Claimant’s employment
is not with statutory flavour and that the employment relationship between the
parties in this case is a private one formerly known as Master and Servant
relationship. In such employment relationship, the determination of the
employee’s employment cannot be unlawful even if it was not properly done
because there is no law that prohibits improper determination of such
employment proved to have been contravened. Therefore, in the instant case,
even if the dismissal of the Claimant is held to be wrongful, it cannot be
unlawful as the Defendant here has not broken any proven law in the said
determination of the Claimant’s employment and I so hold.
21.2.1. Was the Claimant’ Dismissal Wrongful?
Counsel to the Claimant argued in paragraph 5.7 (i)
to (iv) of his final written address that the Defendant did not give the Claimant
fair hearing, neither did it exhaust nor explore all the means of fair hearing
as entrenched in section 18.2.i., 18.10.2, 18.10.4, 18.10.5, 18.9.3, 18.9.4,
and 18.10 (1-6) etc. of Exhibit C.30, the Corporate Policy & Procedure
Guide (CPPG) before the Defendant dismissed the Claimant. Counsel also
contended that the Claimant was not given every copy of panels’ reports to
enable him react to same.
21.2.2. Was the Claimant Given Fair Hearing?
Case Law position on this point is that, employers
and public bodies are required at all times to act in good faith, reasonably
and fairly towards people and matters under their charge in all circumstances,
as the law do not permit employers to act arbitrarily. The question of
"whether there was fair hearing during the dismissal process” is so weighty
that, where the Court finds that an employee was not afforded fair hearing, it
renders the dismissal wrongful thereby entitling him to damages; see the cases
of Nimasa v. Odey [2013] LPELR-21402(CA) (Pp. 34 paras. E) and Billie v. Multi- Links Telecom Ltd (supra).
21.2.3. However in Baba v. N.C.A.T.C [1991] 5 NWLR (Pt. 192) page 388
at 418-419 referred to by parties is apposite on this issue. In the cited
pages, the Court stated as follows:
Where some allegations have been made against an
employee… the employer is entitled to set up a panel to investigate the
allegations. Such an investigating panel is not a Court of trial; so it is
enough if it gives to any of the persons whose names feature in the inquiry the
opportunity of making some representations, oral or in writing, before it. In
the process of investigation it can receive its information from any source.
The panel of inquiry not being a Court of trial, none of the persons whose
names feature in the inquiry can insist on any right to cross-examine other
persons who make allegations or present memoranda at the inquiry. But once the
panel has concluded its inquiry and makes up its mind that any points had been prima
facie made which point to the fault of any person, the employer must
first inform such an employee of the points in the case against him and give
him the opportunity to refute, explain or contradict them or otherwise
exculpate himself by making any representations or defence thereto before the
employer can lawfully use the point as bases for dispensing with his services.
…
21.2.4. In the
instant case, it is before the Court that the Claimant was given a Query dated June
23, 2014; see Exhibit C.12 & D.1 on pages 102 to 116 and 510 - 511 of the
record. He answered the Query dated June 27, 2014; Exhibit C.13 & D.2 on pages
117 to 124 and 513 – 520. He was issued Letter of Observation dated June 22, 2015;
Exhibit C.14 and D.3 at pages 125 and 522 of the record, he responded to letter
of observation dated June 26, 2015; Exhibit C.15 & D.4 on pages 126 &
524. There is also a copy of the Report of the 5-member Investigative Committee
dated December 2, 2014; Exhibit D.6 on page 530 to 534 before the Court. With
all these documents and evidence before the Court, I am satisfied that the Claimant
was given fair hearing before he was dismissed from his employment and I so
hold.
21.2.5. Was The
Dismissal Of The Claimant In Accordance With The Terms And Conditions of His
Employment?
It is a well-established principle of law that an
employer has the right to dismiss its employee, but the dismissal must be in
accordance with the conditions of service and should not be wrongful. See the
case of Billie v. Multi- Links Telecom
Ltd [2017] LPELR-41862 (CA) (Pp. 13 paras. A). In determining whether
the Claimant’s dismissal is proper, the Court is inter alia required to resolve
whether the dismissal was carried
out in line with the procedure laid down in the Employees’ Handbook or any
document governing the employment relationship. The employer has the duty to
ensure that it does not arbitrarily wield its executive stick in oppression of
the employee and it is important that every employer must be careful not to
abdicate or abuse its powers.
21.2.6. In the instant case, the Claimant was
dismissed by the Defendant with immediate effect as a result of gross
negligence and unaccounted product sales. See Exhibit C.35 on page 386 of the
record. In the Corporate Policy and Procedure Guide (CPPG) of the Defendant,
Exhibit C.30; steps for the disciplinary measures are stated. Section 18.9.1 on
initial report, starting with the issuance of a query. Section 18.9.2 of the
Exhibit is on investigation. Section
18.9.3 is on Decision of a Disciplinary action. See also sections 18.10.1 to
18.10.11 of Exhibit C.30. This Exhibit provides for termination of an employee’s
appointment but does not have any provision for dismissal as a means of
disengaging the Defendant’s employee.
21.2.7. Termination under
section 18.10.6 (iv) of Exhibit C.30 states that “an employee’s appointment may
be terminated for --- Negligence that has the probability of causing or
actually causes the loss of damage to the corporation’s property.”
21.2.8. In Exhibit D.12, the “Ad-Hoc Disciplinary
Committee Report on Allegation of Gross Negligence and Unaccounted Product
Sales Amounting to N234,880,890.00 at Floating Mega Station, Nembe Bayelsa
State against Dr. W.A. Abomaye-Nimenibo-Nimenibo August 2016”; what the
Committee recommended was the termination of the Claimant’s employment. The
recommendation states:
Sequel to the findings and conclusion above, the
Committee bearing in mind the principles of fairness, justice and firmness
proposed the following recommendations to NNPC Top Management:
1.
Termination of Dr.
Abomaye-Nimenibo’s employment for negligence in the management of FMS, Nembe
resulting in avoidable revenue loss of N234,120,944.00 to the Corporation in
accordance with section 18.10.06 of NNPC Corporate Policy and Procedure Guide
(CPPG). ---
See pages 1115 – 1127(b)
particularly at page 1127(a) of the record.
21.2.9. I have held in this judgment that the Claimant
was not negligent in this instant case. Consequently, I hold that the determination
of the employment of the Claimant by way of dismissal rather than by
termination as recommended by the Ad-Hoc Committee in Exhibit D.12 and as allowed
in the section 18.10.6 of Exhibit C.30 is wrongful because it was not in
accordance with the terms and conditions of the employment of the Claimant as
stated in Exhibit C.30 before the Court. In addition, I hold that the dismissal
of the Claimant is wrongful because he was not negligent at all in respect of
the alleged loss of the Sum of N234,880,890.00 at Floating Mega Station, Nembe
Bayelsa State at the material time.
22.0. ISSUE THREE:
Is the Claimant entitled to reinstatement or his unpaid
salaries for the period of his suspensions and to the balance of his terminal
benefits? Has the Claimant proven that
the defendant’s actions warrants exemplary damages?
22.1. Is the
Claimant Entitled to reinstatement?
Relief three seeks the Claimant’s re-instatement with all its associated benefits from
January 23, 2015 till the date of judgment including the promotions to Deputy
Manager in 2015 and full manager in 2019
Grade M5.
22.1.1. In a
Private Employment as in the instant case, it is imperative to note that the Court will not impose a willing employee on an
unwilling employer even where the employer's behaviour or motive for the determination
of the employment is wrongful or unjustifiable; unless there are special
circumstances, which warrant the making of an order reinstating the employee. See
the cases of Omenka v. Morrison Ind. Plc.
[2000] 13 NWLR (Pt. 683) 147; Union
Beverages Ltd v. Owolabi [1988] 1 NWLR (Pt. 68) 128 and Ajayi v. Texaco (Nig.) Ltd [1987]
3 NWLR (Pt. 62) 577. Having held that the employment of the Claimant is not with
statutory flavour, I hereby hold that the Claimant is not entitled to re-instatement.
This prayer is accordingly declined and dismissed.
22.1.2. The
Wrongful dismissal of the Claimant in this case evinces the Defendant’s
intention to end the employment relationship with the Claimant.
As held in this judgment, the Defendant wrongfully
dismissed the Claimant via Exhibit C.35.
This wrongful act of the Defendant shows that it has no intention of
continuing its employment relationship with the Claimant. In the circumstance, this Court sees this wrongful dismissal of
the Claimant as wrongful termination of his employment by the Defendant with
effect from February 15, 2018 when he was wrongfully dismissed. See the
following unreported decisions of this Court on the Defendants demonstrating
their intentions to end their employment relationships with their employees by
wrongfully dismissing them: Mr.
Christian Ehisotie Ilegbodu v. Skye Bank Plc. unreported suit NICN/PHC/110/2013
judgment delivered on June 3, 2015; Mr.
Babatunde Ogunsowo v. Dana Motors Ltd. with Suit No: NIC/LA/117/2011
judgment of which was delivered on July 10, 2013 and the judgment delivered on
December 11, 2014 in Suit No: NICN/PHC/152/2013 between Nwigah Goteh v. Juanita Hotel Ltd.
22.2.0. Is the Claimant entitled to his
unpaid salaries during his suspensions?
According to the agreement of the parties in
Exhibit C.30, the Defendant’s Corporate Policy and Procedure Guide, particularly,
section 18.10.4 of Exhibit C.30 provides inter alia that “Where a staff is
proved innocent and restored to duty, the amount withheld should be paid to the
staff.” In this judgment, I have held that the Claimant was neither negligent nor
responsible for the defendant’s loss, which was attributed to Victor Ekwe. While I did not order the
claimant’s re-instatement due to the private nature of his employment, I am of the
firm view that he is still entitled to his unpaid salaries during his
suspension as he was legally considered an employee of the Defendant throughout
that time and I so find.
22.2.1. In the circumstance, I hold that the Claimant
is entitled to his full salaries for the duration of his first suspension from
duty from January 23, 2015 to May 9, 2016;totaling one year, three months and sixteen
days (1year, 3 months & 16 days). I further hold that the Claimant is
entitled to half of his monthly salary for the period of his second suspension
from duty from May 10, 2016 to February 15, 2018 when he was wrongfully
dismissed, amounting to one year, nine months and five days (1 year, 9 months
& 5 days).
22.2.2. The promotion letters of the Claimant are collectively marked as
Exhibit C.3, see pages 39 – 45 of the record. The Claimant’s most recent
promotion letter is dated December 31, 2013 – see page 39 of the record. In
this letter, the Claimant was promoted to the position of Zonal Head PH, FMS
Retail on GL SS1 with annual of N11,318,574.76;
effective from January 1, 2014 as detailed in Exhibit C.29 dated December 31,
2014 at page 259 of the record.
22.2.3. To calculate the Claimant’s total salaries during his suspension,
we divide N11,318,574.76 by 12 resulting in a monthly salary of N943,214.56.
For the first suspension, the full salaries for one year, three months and
sixteen days are calculated as follows: his 1 year and 3 months’ salary, which
is 15 months is N943,214.56 x 15 = N14,148,218.4 and his pro rata 16
days’ salary is calculated as N943,214.56 divided by 30 multiplied by 16 equals
N503,047.77. Therefore, the Claimant’s salary for the period of 1year, 3
months and 16 days that he was suspended without pay is N14,148,218.4 plus N503,047.77 equals N14,651,266.17
22.2.4. In calculating the half salaries of the Claimant during
his 2nd suspension from duty with half pay, N943,214.56 divided by 2
equals N471,607.28 as the Claimant’s half monthly salary. The half salaries for
one year, nine months and five days is calculated thus:
When 1 year & 9 months is converted to months, it
gives us 21 months. Therefore, 1 year, 9 months’ half salaries is N471,607.28
multiplied by 21 equals N9,903,752.88. Five days pro rata half salary is
calculated thus: N471,607.28 divided by 30 equals N15,720.24 multiplied by 5 equals
N78,601.20. Hence, the total half salary for the period of 1 year, 9
months & 5 days is N9,903,752.88 + N78,601.20 = N9,982,354.08.
22.2.5. The Claimant’s unpaid salaries for the entire
suspension period from January 23, 2015 to February 15, 2018 is the sum of N14,651,266.17.
+ N9,982,354.08 equals N24,633,620.25. Consequently, I
hold that the Claimant is entitled to claim from the Defendant, the full sum of
N24,633,620.25 (Twenty
Four Million, Six Hundred and Thirty Three Thousand, Six Hundred and Twenty Naira
Twenty Five Kobo)
as his unpaid salaries for the duration of his suspension.
22.3.0. Is the
Claimant Entitled to the Assumed Balance of His Terminal Benefits?
Since the wrongful dismissal of the Claimant is now
being seeing as ‘Wrongful Termination’ in this judgment, I hold that the Claimant
is entitled to all his terminal benefits as agreed upon by the parties in their
terms of contract of employment less whatever the Defendant has paid him as his
terminal benefits, which the Claimant argued is incomplete.
22.4.0. Is the Claimant
Entitled to Exemplary Damages In this Case?
In other words, has the Claimant proved that
the action of the Defendant in wrongfully dismissing him is outrageously
reprehensible or grossly reckless to entitle him to exemplary damages? In reliefs
Nine and Ten of the Claimant’s claim, he is praying for the sum of N25,000,000,000.00 (twenty five billion
Naira) as damages for breach of contract and unlawful dismissal. And for the
sum of N25,000.000,000.00 (twenty five billion Naira) as aggravated and
exemplary damages.
22.4.1. I have held in this judgment that the Claimant
was not negligent at all in the instant case because it was not his duty to
ensure that the suspended company and its employees from the Defendant’s FMS
Nembe at the material time remained suspended when his superior who represented
the Defendant directed him to continue engaging those employees because they
understood the dangerous terrain of operation in the relevant area. This means
that not only was the Claimant’s dismissal wrongful, he did not deserve to be
terminated from his employment by the Defendant in the first instance.
22.4.2. The Claimant has put
in several years of meritorious service, with his employment effective from
August 23, 1991 (see Exhibit C.1 on page 37 of the record) to February 15, 2018
when he was dismissed, see Exhibit C.35. The Claimant was given a number of
promotions and written commendations by the Defendant as evident in Exhibit C.3.
He was a top ranking employee of the Defendant and for him to be disgraced out
of his employment by dismissal without any justifiable cause; I find that the Defendant
was outrageously reprehensible and reckless in baselessly dismissing the Claimant
from its employment.
22.4.3. Consequently, I am satisfied that the Claimant has proved his claim
for exemplary damages on the preponderance of probability and I so hold. The Claimant
is accordingly awarded the sum of N600,000,000.00
(Six Hundred Million Naira) only against the Defendant as exemplary damages for
the determination of his employment without any reasonable cause. Now that I
have awarded exemplary damages for the claimant, I further hold that the
claimant is not entitled to his 9th relief for the sum of
N25,000,000,000.00 (twenty five billion Naira) being damages for breach of
contract and unlawful dismissal.
23.0. On the whole, I hold and
order as follows:
i.
I hold and declare
that Exhibit C.42 ‘Dealership Agreement’ holds no evidential value as it is
neither signed nor dated. It is also not relevant to this case and it is discountenanced
ii.
I hold and declare
that the Defendant did not satisfactorily prove its case of criminal negligence
against the Claimant.
iii.
I hold that the 1st
suspension letter issued to the Claimant on January 23, 2015 violates the Defendant’s
Corporate Policy & Procedure Guide, Exhibit C.30.
iv.
I hold that the 2nd
suspension letter of May 10, 2016 is substantially in line with the provision
of Exhibit C.30 - the Corporate Policy and Procedure Guide (CPPG) at 319.
v.
I hold that the dismissal
of the Claimant was wrongful but not unlawful.
vi.
I hold that the Claimant
is not entitled to re-instatement.
vii. I hold that the Claimant is entitled to the sum of N24,633,620.25. as his unpaid
salaries during his suspension.
viii. I hold that the Claimant is entitled to the remaining
terminal benefits as agreed upon by both parties.
ix.
I hold that the Claimant has proven that
the action of the Defendant is outrageously reprehensible and grossly reckless
and this has earned him the sum of N600,000,000.00
exemplary damages against the Defendant in this case.
x.
The Defendant is hereby ordered to pay to the
claimant, N5M (Five Million Naira) only as cost of this action.
xi.
The Defendant must pay the Judgment debt to the Claimant
within two months from today.
24.0. This Judgment
is entered accordingly.
----------------------------------------------------
HON. JUSTICE
F. I. KOLA-OLALERE
Presiding Judge