Lagos – The Presiding Judge of the National Industrial Court of Nigeria, Lagos Judicial Division, His Lordship, Hon. Justice B. B. Kanyip on Tuesday 11th December 2018 in a judgment of a retrial case declared as wrongful and set aside Letter of purported dismissal of Clement Abayomi Onitiju (Claimant) employment by Lekki Concession Company Limited (Defendant). The court ordered defendant to pay to the claimant within 30 days, the sum of Seven Hundred and Forty-Two Thousand, Six Hundred and Twenty-Five Naira (742,625.00) only being one month’s salary in lieu of notice, and the sum of Five Hundred Thousand Naira (N500,000) only for cost of action.
The claimant sought against defendant among others; A declaration that the purported dismissal of the claimant by the defendant vide dismissal letter dated 17 August 2011 is wrongful, unlawful, null, void and of no effect whatsoever. A declaration that the claimant is still validly and contractually within the employment of the defendant and therefore entitled to all his salaries, earnings, bonuses and perquisites of office from 17 August 2011 until it is properly and lawfully determined by the defendant.
Likewise, An order directing the defendant to immediately pay to the claimant the sum of N2,970,500.00 (Two Million, Nine Hundred and Seven Thousand, Five Hundred Naira) only being his salaries for the months of August to November 2011.
To the claimant, he was employed by the defendant as Manager, Information Technology for a probationary period of six months. His employment was confirmed 30 October 2009. The claimant stated that he was summoned to the office of the Chief Security Officer of the defendant where he was informed that he had been ordered to be arrested on the instructions of the manager and be handed over to the Police. That he received a letter from the defendant in which he was informed that he had been dismissed from the defendant’s company for gross misconduct. It is thus the claimant’s case that he was never confronted with any of the allegations which form the basis of the gross misconduct. The claimant denied that he ever committed any of the acts which the defendant alleged him to have committed.
The crux of the claimant’s claim is that he was dismissed on allegations of having committed forgery and “siphoning of company funds”, which are criminal offences, without being given an opportunity to defend himself.
The Court of Appeal in its judgment of 17 May 2016 held that this narrow issue of denial of fair hearing to the claimant was not resolved by the first trial Judge and, therefore, remitted the point to this Court for determination.
The defendant’s case, therefore, is that not being a Court or a Tribunal, it was not obliged to accord the claimant a fair hearing before his dismissal. Secondly, that assuming without conceding that the defendant was obliged to have accorded the claimant a fair hearing before his dismissal, the defendant actually accorded the claimant a fair hearing before his dismissal. And thirdly, assuming further without conceding that the dismissal in question is unlawful, the only remedy available to the claimant is his salary which he would have earned during the period of notice to which he is entitled for the proper termination of the contract.
The claimant in his final written address asked for determination “Whether in view of the criminal allegations of fraud and forgery made against the Claimant, the Claimant was lawfully and validly dismissed by the Defendant”.
The clamant’s position is that he was never challenged with the allegations or given a chance to be heard. That this specific averment by him was not denied or responded to by the defendant in its defence and neither was he cross-examined on this point or controverted in any way with evidence during the trial.
After due consideration of the processes and submissions of the parties, the Presiding Judge, Hon. Justice B. B. Kanyip frowned at the choice of language and conduct of the counsel to the defendant for being disrespectful and unprofessional.
“A reading of Mr Ganiyu’s submissions as to the fact that the defendant gave the claimant fair hearing is nothing but speculation and conjecture.
“In fact, the manner in which the defence counsel presented his submissions is nothing but a tacit acceptance that the defendant did not give the claimant any hearing at all.
In all, the court declared that the purported dismissal of the claimant by the defendant vide the dismissal letter dated 17th August 2011 is wrongful, and the said dismissal letter issued by the defendant to the claimant was also set aside.
His Lordship ordered defendant to pay to the claimant within 30 days, the sum of Seven Hundred and Forty-Two Thousand, Six Hundred and Twenty-Five Naira (742,625.00) only being one month’s salary in lieu of notice, the measures of damages and the sum of Five Hundred Thousand Naira (N500,000) only for cost of action