IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HONORABLE JUSTICE E.D SUBILIM

 

DATE: 25^th November 2024 

SUIT NO: NICN /ABJ/368/2024

 

BETWEEN 

 

MR. JONATHAN GOJE GARASHI                …………                        CLAIMANT

 

AND

 

1. HALOGEN SECURITY COMPANY LIMITED
2. ACCESS BANK PLC                                              ….……….              DEFENDANTS

 

REPRESENTATION: 

Adeyemi Pitan Esq., with Peace Kenoye Esq., for the Claimant.

Kingsley O. Obue Esq., for the 1^st Defendant/Counterclaimant.

Richard Ebie Esq., with A.I Ekpo Esq., for the 2^nd Defendant.

 

 

JUDGMENT

 

1. A DECLARATION that the termination of the Claimant’s contract of employment vide letter dated November 28, 2023 by the 1^st Defendant on the recommendation and advice of the 2^nd Defendant without any establishment of guilt is illegal, unlawful, null and void and of no effect.
2. A DECLARATION setting aside the letter of termination of employment dated November 28, 2023 issued to the Claimant same having been issued without the rules of fair hearing. 
3. AN ORDER directing the Defendants to pay the Claimant the sum of N106, 000 being his November 2023 salary which is unpaid.
4.  AN ORDER directing the Defendants to compute and remit all the Claimant’s pension deductions for the period of 2012-2015 to the Claimant’s pension fund administrator which the Defendants failed, refused and or neglected to remit.
5. AN ORDER directing the Defendant to compute and pay to the Claimant his gratuities in line with the contract of employment executed with the 1^st Defendant.
6. General damages of N50, 000, 000 (Fifty Million Naira Only) for unlawful termination of contract of employment.
7. Cost of N1, 000, 000 (One Million Naira Only)

 

 

BRIEF FACTS OF CASE

3. In his pleadings, the Claimant averred that he was employed on the 1^st of June 2012 as a Security Guard Supervisor by the 1^st Defendant and seconded to the 2^nd Defendant. He worked as a security guard at the Wuse Branch of the 2^nd Defendant between October 2014 and October 2016, he was then deployed to the Durumi branch of the 2^nd Defendant on the 6^th of April 2019 where he carried out his duty until his employment was terminated. Claimant averred that he rose from the position of security guard to Assistant Security Supervisor due to his dedication and commitment to duty. Claimant averred that on the 23^rd of October 2023, he was arrested at his duty post and taken to Durumi Police Station for alleged theft of diesel at the Durumi Branch. The Claimant was detained alongside other guards arrested on the same shift. However, after an investigation, the police revealed the culprit to be one Beka Efejedie who confessed to stealing the said diesel. Claimant averred that he was not on duty when the said diesel was stolen. And upon the confession of Beka Efejedie, the Claimant was released from the Police custody and was allowed to go home, but he was not allowed to resume work at any of the 2^nd Defendant’s branch. Claimant averred that he was told by the Regional Manager of the 1^st Defendant to stay off work without any explanation and without his salary for the Month of November 2023. Claimant avers that he kept going to the 1^st defendant’s office to make enquiries about his case, however he was kept in the dark only to be told later to come to the office of the 1^st Defendant on the 28^th of November 2023 where he was handed a letter of termination of his employment on the allegation of theft of diesel. Claimant averred that the basis of the termination of his employment is a breach of his right to fair hearing as he was exonerated by the police after preliminary findings carried out by the police which revealed that he was not culpable of diesel theft. He averred that the termination of his employment for the said allegation was not proven or established before any panel set up by the defendants or any court of competent jurisdiction. Claimant averred that termination of his employment will likely impede his chances of securing other jobs in life, as the termination is unlawful, null and void having been carried out against known legal principles that governs right to fair hearing. Claimant averred that the 2^nd defendant misled the 1^st Defendant in terminating his employment without the 1^st defendant carrying out thorough investigation before reaching a conclusion. He averred that the Defendants have refused to pay him is salary for November 2023, and they not remitted his monthly pension from 2012 to 2016. 
4. On the other hand, 2^nd Defendant in its pleadings averred that the Claimant was an employee of the 1^st defendant and was redeployed to operate from the 2^nd Defendant’s branches. It averred that the Claimant was under the exclusive employment of the 1^st Defendant and as such he was exclusively responsible to the 1^st Defendant. 2^nd Defendant averred that any appraisal, commendation, promotion, transfer, query or disciplinary measure arising from the performance or non-performance of the Claimant’s duty is within the exclusive prerogative of the 1^st Defendant as his employer. 2^nd Defendant averred that the Claimant and other security personnel were invited to the Durumi police station following the discovery of their involvement in illegal disposal of diesel at the 2^nd Defendant’s Durumi branch. 2^nd Defendant averred that its vendor in charge of electricity discovered the suspicious and unusual shortage of diesel during one of its routine checks in the 2^nd Defendant’s Durumi branch. The vendor reported the suspicious shortage of diesel to the 2^nd Defendant Durumi Branch Manager who caused inquiries to be made. It was upon investigation that it was then revealed that the security personnel, of which the Claimant was part of, was responsible for the diesel theft. Following the discovery, the 2^nd Defendant called in the 1^st Defendant as the parent company responsible for the security personnel. 2^nd Defendant averred that the 1^st Defendant consequently initiated investigation into the matter and withdrew the security personnel who worked previously in the Durumi branch during the period of January 2023 to October 2023. 2^nd Defendant averred that the investigation revealed that the diesel theft was a continuous and regular occurrence at the branch as it has been going on from July 2018 to January 2021, and copies of query were issued to Beka Efejedie and Joseph Ugo (some of the security personnel) and their responses to the query during the investigation by the 1^st Defendant was made available to the 2^nd Defendant. 2nd Defendant averred that the employment was terminated by the 1^st Defendant, being his employer and parent company to whom he is responsible to. The 2^nd Defendant is not involved in the investigation process which resulted to the Claimant’s dismissal from the employment of the 1^st defendant neither does the 2^nd Defendant have the power or authority to terminate the employment of the Claimant. 2^nd defendant averred that the Claimant was never at any time an employee or the staff of the 2^nd Defendant and as such not in its payroll. 
5. The 1^st Defendant/Counterclaimant in its pleadings averred that the Claimant was a former employee who was summarily dismissed with other guards for gross misconduct by a letter dated 28^th of November 2023. It averred that the Claimant was employed on contract basis and was accordingly posted to different locations including the premises of the 2^nd Defendant to work for the 1^st defendant pursuant to the provisions, terms and conditions of the contract of employment. 1^st Defendant/Counterclaimant averred that while the Claimant and his dismissed colleagues were in the employment of the 1^st Defendant/Counterclaimant, the Claimant’s actions and inactions led to the several and continuous theft of diesel in the location he was posted to guard for several years. Also when the several/continuous diesel theft in the location was finally discovered by the vendors to the 2nd Defendant, all the Guards (Employees of the 1st Defendant/Counterclaimant) in the location were invited to the Durumi Police Station on 23rd October 2023, including other Guards that have worked in the said location in the period of the continuous diesel theft and sharing of illegal proceeds of diesel sales in the location.  1^st Defendant/Counterclaimant averred that upon the confession and admission, at the Police Station, to the crime of several diesel thefts and illegal sharing of proceeds of diesel sales for years by some of the 1st Defendant/Counterclaimant’s employees/guard (Mr. Beka Efejedia, Mr. Joseph Ugo and Mr. Austin Ejiro Joseph) in the location, the 1st Defendant/Counterclaimant issued query letters to the Claimant and all his colleagues involved in the crime, and also set up a Disciplinary & Investigation Committee and forthwith withdrew them from their various locations pending the outcome of the investigations. At the end of its sitting, the disciplinary and investigation committee recommended that the Claimant and all guards involved/implicated in or connected to the crime be summarily dismissed in compliance with the following provisions; Clause 18 of the Claimant’s Pre-Deployment/Employment Agreement (Exhibit 1), Clause 32 and Offence Number 27a of the Security Officer’s Handbook and Code of Conduct of the 1st Defendant/Counterclaimant (Pages 16 and 18 of Exhibit 2). 1st Defendant/Counter-claimant further averred that based on the overwhelming and uncontradicted evidence of several diesel theft in the 2nd Defendant’s Durumi Branch premises and pursuant to the unambiguous provisions in the Claimant’s Pre-Deployment/Employment Agreement and the 1st Defendant/Counterclaimant’s employees handbook which clearly provided for both individual and collective punishment under the circumstances, the Claimant and his culprit colleagues were summarily dismissed by letters dated 28^th November 2023. 1^st Defendant/Counterclaimant in its Counterclaim averred that the Claimant file this suit to blackmail her to pay to him money he never worked for. 1^st Defendant/Counterclaimant averred that the letter issued to the Claimant dated 28^th November 2023 was a letter of summary dismissal not just a mere termination of appointment. 1^st Defendant/Counterclaimant averred that the Claimant confessed and admitted that he was aware of the several diesel thefts at the 2^nd Defendant’s Durumi Branch without ever reporting same to the 1^st Defendant/Counterclaimant which is in contravention of the terms of his employment and Clause 32 of the 1^st Defendant/Counterclaimant employee handbook. 1^st Defendant/Counterclaimant averred that Claimant filed this suit frivolously in a bid to tarnish the high reputation of the 1^st Defendant/Counterclaimant who is currently the biggest and largest security guard company in Nigeria and parts of West Africa. 1^st Defendant/Counterclaimant averred that the suit instituted by the Claimant incurred a cost of N1, 750, 000 (One Million Seven Hundred and Fifty Thousand Naira) which is the sum charged by counsels to the 1^st Defendant/Counterclaimant as professional fees. The 1^st Defendant/Counterclaimant thus counterclaimed as follows:
6. A declaration that the claims against the 1^st Defendant in this suit are null, void, gold digging and unsubstantiated.
7. A declaration that the Claimant has no valid cause of action against the 1^st Defendant in this suit.
8. A declaration that the Claimant was lawfully dismissed summarily by the 1^st Defendant and the 1^st Defendant’s letter to the Claimant dated 28^th November 2023 amounts to summary dismissal.
9. A declaration that the Claimant having been summarily dismissed is not entitled to any gratuities or retirement benefits of any kind.
10. An order dismissing the suit of the Claimant in its entirety for lacking in merit, being incompetent, gold digging, misconceived and frivolous.
11. An order of special/specific damages in the sum of N1, 750, 000 (One Million Seven Hundred and Fifty Thousand Naira) only to be paid to the 1^st Defendant by the Claimant being the cost of engaging a Counsel by the 1^st Defendant to represent her in this suit.
12. General Damages in the sum of N100, 000, 000 (One Hundred Million Naira) only against the Claimant for the embarrassment, harassment, injury, reputational dent and incidental cost occasioned by the suit and the Claimant’s misconduct while in the employment of the 1^st Defendant. 
13. In the Claimant’s reply to 1^st Defendant/Counterclaimant’s Statement of Defence/Counterclaim, Claimant averred that the 1^st Defendant/Counterclaimant did not officially inform or issue him any report or reasons upon which the purported Disciplinary committee found the Claimant aiding and involvement in criminal acts of stealing diesel and sharing in the proceeds.  He averred that the Nigeria Police Durumi Division carried out its investigation and did not find the Claimant culpable with respect to the offence of diesel theft. Claimant averred that there is no document that shows where the Claimant admitted to the commission of the offence of diesel theft neither was he given an opportunity to defend himself. He averred further that the 1^st defendant made promises to Tijani Ugbede to testify against the Claimant and his colleagues. He averred that the disciplinary and investigation committee report did not adhere to the rules of fair hearing as the Claimant was not invited to the said hearing. Claimant averred that the investigation report was a sham and charade and consequently urged this court to set aside the said report same having been reached in violation of the rules of fair hearing. In his Defence to Counterclaim, Claimant averred that the handbook was not brought to the notice of the Defendant throughout the period of his employment and the said handbook did not form part of the contract. Claimant averred that he cannot be made to pay for the 1^st Defendant/Counterclaimant’s legal fee. 
14. In the Claimant’s reply to 2^nd Defendant Statement of Defence, Claimant averred that the 2^nd Defendant was instrumental to the unlawful termination of the Claimant. He averred that he was only invited to the Durumi Police Station but denies ever being involved in theft. He averred that the said query was concocted by the 2^nd Defendant and even when the 1^st and 2^nd Defendant made promises that he would be granted a promotion and increment in salary he stated the truth of what happened. He averred that 2^nd Defendant recommended the termination of the Claimant’s employment to the 1^st Defendant without fair hearing. He averred that he is entitled to all his benefits and gratuities having worked jointly with both the 1^st and 2^nd Defendants.

 

EVIDENCE OF THE CASE AT TRIAL

1. Exhibit J1: Letter of Contract of Employment dated May 12, 2012.
2. Exhibit J2: Letter of Termination of Employment dated November 28, 2023.
3. Exhibit J3: Statement of Account of the Claimant’s Retirement Savings Account with Access Pensions
   9. The Claimant’s Witness was cross-examined. Under cross examination, 1^st Defendant through CW1 tendered a document which Counsel to the Claimant reserved his objection to final address. The Court admitted the document tendered as Exhibit JG5. 2^nd Defendant did not cross examine CW1, with that CW1 was discharged and was not re-examined. Claimant closed his case. On the same date, 2^nd Defendant open its case and entered its defence. 2^nd Defendant called its sole witness one Mr. Buddy Alete-Omoni the Regional Security manager of the 2^nd Defendant who testified as DW1. DW1 adopted his Witness Statement on Oath deposed to on the 22^nd of January 2024 as his oral evidence-in-chief at the trial. DW1 did not tender any document in support of his testimony. DW1 was cross-examined by Claimant Counsel and 1^st Defendant’s Counsel. With that, DW1 was discharged and was not re-examined. 2^nd defendant closed its case. 
   10. On the 14^th of June 2024, 1^st Defendant opened it case and entered its defence. 1^st Defendant called its first witness one Mr. Tijani Raheem, the Human Resource Business Partner (North) of the 1^st Defendant who testified as DW2. DW2 adopted his Witness Statement on Oath deposed to on the 23^rd of February 2024 as his oral evidence-in-chief at the trial. DW2 also sought to tender the documents he pleaded as exhibit during the trial. Claimant and 2^nd defendant did not object to the admission of the Document. The Court admitted the following documents tendered as exhibit;
   11. Exhibit Raheem 1 - Claimant’s Pre-deployment/Employment Agreement AND Deployment Contract Letter. 
   12. Exhibit Raheem 2 - 1^st Defendant’s Security Officer’s Handbook and Code of Conduct.
   13. Exhibit Raheem 3 – Claimant’s Query letter dated 23/10/2023, Answer to query dated 23^rd October 2023, Recommendation for Summary Dismissal signed 27^th and 28^th November 2023 and Letter of Summary Dismissal dated 28/11/2023.
   14. Exhibit Raheem 4 – Mr. Joseph Ugo’s Query letter dated 23/10/2023, Answer to query dated 24^th October 2023, Recommendation for Summary Dismissal signed 27^th and 28^th November 2023 and Letter of Summary Dismissal dated 28/11/2023
   15. Exhibit Raheem 5 - Mr. Beka Efejedia’s Query letter dated 23/10/2023, Answer to query dated 23^rd October 2023, Recommendation for Summary Dismissal signed 27^th and 28^th November 2023 and Letter of Summary Dismissal dated 28/11/2023.
   16. Exhibit Raheem 6 - Mr. Austin Ejiro’s Query letter dated 23/10/2023, Answer to query dated 24^th October 2023, Recommendation for Summary Dismissal signed 27^th and 28^th November 2023 and Letter of Summary Dismissal dated 28/11/2023.
   17. Exhibit Raheem 7 - Mr. Tijani Ugbede Query letter dated 23/10/2023, Answer to query dated 23^rd October 2023, Recommendation for Summary Dismissal signed 27^th and 28^th November 2023 and Letter of Summary Dismissal dated 28/11/2023.
   18. Exhibit Raheem 8 - The investigation report of the disciplinary/investigation team led by Echezona O. Mogbo Esq. (Investigation Executive of the 1^st Defendant)
   19. Exhibit Raheem 9 - The 1^st Defendant Solicitor’s Invoice dated 2^nd February 2024.
   20. Exhibit Raheem 10 – Certificate of compliance with Section 84 of Evidence Act with attached email conversations.
   21. DW2 was cross-examined by 2^nd Defendant’s Counsel and Claimant Counsel. Having been cross-examined DW2 was discharged and was not re-examined. 1^st Defendant called its second witness, one Mr. Nehemiah Adaja the Zonal Manager of the 1^st Defendant who testified as DW3. DW3 adopted his Witness Statement on Oath deposed to on the 23^rd of February 2024 as his oral evidence-in-chief at the trial. DW3 did not tender any document in support of his testimony. DW3 was cross-examined by 2^nd Defendant’s Counsel and Claimant Counsel, with that DW1 was discharged and was not re-examined. The 1^st Defendant then applied for adjournment to call its remaining witness. The Court granted the adjournment. On the next adjourned date the 12^th of July 2024, the 1^st Defendant unilaterally decided to apply to close his case. His application was granted. At the close of the 1^st Defendant case, the suit was then adjourned to the 30^th September, 2024 for adoption of final written addresses.
   22. In line with the provisions of Order 45 of the NICN (Civil Procedure) Rules, 2017, the 2^nd Defendant initially filed its Final Written Address out of time on the 22^nd August 2024. However, by a motion for extension of time dated and filed on the 22^nd August 2024, the Court granted an order deeming their Final Written Address as properly filed and served. The 1^st Defendant/Counterclaimant filed its Final Written Address on the 23^rd August, 2024 while the Claimant filed his Final Written Address on the 20^th September 2024. The 1^st Defendant/Counterclaimant filed its Reply on Points of Law to the Claimant’s Written Address on the 4^th of October 2024. While the 2^nd Defendant filed his Reply on Points of Law on the 15^th October 2024.

 

2^nd DEFENDANT’S FINAL SUBMISSIONS

 

1. Whether having regard to the facts and circumstances of this case, there existed any privity of contract between the Claimant and the 2^nd Defendant?
2. Whether the Claimant has proved his case and established a reasonable cause of action against the 2^nd Defendant to entitle him to the reliefs sought against the 2^nd Defendant before this Honourable Court? 

 

14.  On Issue One, Learned Counsel submitted that the employment, deployment and subsequent termination of the employment of the Claimant by the 1st Defendant is exclusively regulated and determined by the 1st Defendant’s contract of employment with the Claimant, to which the 2nd Defendant was not a party. As the 2^nd Defendant was a stranger to the contract of employment between the 1^st Defendant and the Claimant. Counsel relied heavily on the case of REBOLD INDUSTRIES LTD v. MAGREOLA & ORS (2015) LPELR-24612(SC) to buttress his argument. Counsel submitted that not only has the Claimant failed to establish any contractual relationship between himself and the 2^ndDefendant, the Claimant has also failed to show proof to the Honourable Court that there exists a privity of contract between him and the 2^nd Defendant. It is an age-long common law principle that only parties to a contract can enforce same. He referred the Court to the cases of LSDPC & ANOR V. NIGERIAN LAND & SEA FOODS LTD (1992) LPELR-24855(SC) DUNLOP PNEUMATICS TYRE CO. LTD. V. SELFRIDGE & CO LTD (1915) AC 847; IKPEAZU V. AFRICAN CONTINENTAL BANK LIMITED (1965) NMLR 374/379. Counsel further submitted that privity of contract is a condition for sustaining an action in contract, in other words where there exists no privity of contract or where the party fails to show that there was a relationship between both parties at any material time, the action must fail. He added that the Claimant has labored in vain to show that there was privity of contract between him and the 2^nd defendant. He referred the Court to the case of REICHIE v. NIGERIA BANK FOR COMMERCE AND INDUSTRY (2016) LPELR-40051(SC); J.E OSHEVIRE LTD v. TRIPOLI MOTORS (1997) LPELR-1584 (SC). Counsel further added that the Court has made numerous pronouncements on the enforceability of an agency relationship, to the effect that such relationship must have been established before a 3^rd party can sue or enforce same. He argued that there was no agency relationship between the Claimant and the 2^nd Defendant and none was proved before the court. It is the 1^st Defendant who has the power to hire and fire the Claimant because there is an already established relationship between the 1^st Defendant and the Claimant. He relied on the case of  ASSET MANAGEMENT NOMINEES LTD & ANOR v. FORTE OIL PLC & ORS (2023) LPELR-60186(SC) and submitted that there is no privity of contract whatsoever between the Claimant and the 2^nd Defendant in the circumstances of this case. There may be a privity of contract between the Claimant and the 1^st Defendant but there is no such privity between the Claimant and the 2^nd Defendant.
15. On Issue Two, Learned Counsel submitted that submit that no reasonable cause of action has been disclosed against the 2nd Defendant in the circumstances of this case. Counsel posted that it is trite that a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or tribunal against a party. He referred the Court to the case of UWAZURUONYE v. GOVERNOR OF IMO STATE & ORS (2012) LPELR-20604(SC). Counsel argued that from the facts of the case, the Claimant has established no clear nexus between himself and the 2nd Defendant upon which he can bring the 2nd Defendant as a party to this suit and/or claim any relief thereof against the 2nd Defendant. He then submitted that the ripple effect of such failure to have any cause of action is that the name of the 2nd Defendant will be struck out and the action dismissed against the 2nd Defendant. He referred the Court to the cases of OGUNSANYA V. DADA (1990) 6 NWLR (Pt. 156) 347 CA; OGBIMI v. OLOLO & ORS (1993) LPELR-2280(SC). Counsel again submitted that the circumstances of the Claimant’s case particularly, relief one is a non-starter as the employment, deployment and subsequent termination of the Claimant’s employment is under the exclusive preserve of the 1^st Defendant. Thus, all other reliefs being ancillary to relief one of the Claimants case must fail and fall like a pack of cards.  He argued that the Claimant never tendered any evidence or document before this Honourable court to show that there was a recommendation from the 2^nd Defendant which led to the termination of his employment. As it was shown that it is the 1^st Defendant who carried out the investigation of the diesel theft and upon conclusion of same, issued a query and subsequently a letter of termination to the Claimant. Learned Counsel submitted that the Claimant’s case against the 2^nd Defendant ought to suffer the fate of outright dismissal on the ground of non-disclosure of a reasonable cause of action against the 2^nd defendant. He urged the Court to dismiss the reliefs sought by the Claimant because the law does not permit our Courts to decide cases on speculations and conjectures. He referred the Court to the case of AGIP (NIG) LTD V. AGIP PETROLI INTERNATIONAL (2010) 5 NWLR (PT.1187) 348 AT 413 PARAS. B – D.  Counsel finally submitted that submit that the case of the Claimant does not support the said reliefs against the 2^nd Defendant, as evident in Exhibit RAHIM 1 and Exhibit RAHIM 3.

 

1^st DEFENDANT/COUNTERCLAIMANT’S FINAL SUBMISSIONS

 

 

 

 

 

 

17. On Issue One, Learned Counsel submitted that it trite that where an employer intends or decides to summarily dismiss an employee, the major factor in the disengagement letter that distinguishes the employees dismissal from an ordinary termination, is simply the specific giving of clear reasons for the dismissal in the letter of disengagement to the Employee by the Employer. He defined a letter of dismissal to be a formal or written document that a company or an employer delivers to an employee to officially communicate that their employment relationship has been terminated. In the letter, the employee explains the causes or reasons that led to the decision to terminate the employment contract. Learned Counsel submitted that where an employer has clearly given the reasons for the termination of an appointment in the disengagement letter and the reasons relates to the misconduct of the employee which attracts a summary dismissal pursuant to the terms and conditions of the employment and employees handbook (as in this case), it is clear, as crystal from the surface of the letter, what the intentions of the employee is; because the employee is not under any legal obligation to give any reasons (whether good or bad) where it simply intends to terminate the employment of its staff. Counsel relied on the cases of LAYADE V. PANALPINA WORLD TRANS. NIG. LTD (1996) 6 NWLR (Pt. 456) 544 @ 558; CHIEF IDONIBOYE-OBU V. NNPC (2003) LPELR-1426(SC) P. 22 PARAS E-F, GABRIEL ATIVIE V. KABELMETAL NIG LIMITED (2008) LPELR-591 (SC) P. 21, PARA A. AND ISHENO V. JULIUS BERGER (2008) 6 NWLR (PT. 1048) 582. Counsel further submitted that in a master/servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. He referred the Court to the case of AZENABOR V. BAYERO UNIVERSITY, KANO (2009) 17 NWLR (PT.1169) 96 CA. He added that the words termination and dismissal (whether in general sense or by the Claimant’s terms of employment and handbook) do not have the same meaning and they are used to intend two different situations.  The Black’s Law Dictionary 7^th Edition at Page 1482 defined termination of employment to mean “the complete severance of an employee relationship.” While at page 482, it defined dismissal as “a release or discharge from employment”. Counsel submitted that unlike termination, in cases of dismissal, the employer is required to give reason for the action. He referred the Court to the cases of UNION BANK OF NIGERIA PLC V. SOARES (2012) 11 NWLR (PT. 3112) 550; GEORGE ABOMELI V. NIGERIAN RAILWAY CORPORATION (1995) 1 NWLR (PT. 372) 451. Counsel submitted that the content of Exhibit J1, no doubt sufficiently satisfied the legal requirements of a valid summary dismissal letter because it clearly stated the reason for the termination which is due to a serious misconduct of involvement in theft of employer’s diesel. Counsel urged the Court to hold that nothing else needed to be added to make Exhibit J1 a letter of summary dismissal and further hold that Exhibit J1 clearly satisfied the legal requirements or conditions of a letter of summary dismissal. 
18. On Issue Two, Learned Counsel submitted that from the totality of evidence before this Court, it is uncontestably true and very obvious that the Claimant in this suit was given a fair hearing and sufficient time/opportunity to defend himself upon the allegation of diesel theft in the 2^nd Defendant’s Durumi branch premises, before the Claimant was summarily dismissed by the Defendant/Counterclaimant on the 28^th day of November, 2023. Counsel submitted that the requirement or essence of fair hearing can never be over emphasized in the summary dismissal of an employee. He relied on the cases of OSUMAH VS EDO STATE BROADCASTING SERVICE (2005) ALL FWLR (PT. 253)773; NDUKAUBA V. KOLOMO (2005) 4 NWLR (PART 915) 415 Ratio 3. He argued that the Claimant in this suit was never dismissed from the service of the 1^st Defendant/Counterclaimant on 28^th November 2023 without being given an opportunity to defend himself or a fair hearing. He pointed that from evidence of all parties in this suit through their respective witnesses (CW1, DW1, DW2 and DW3) that the Claimant was issued/served with query letter dated 23^rd October 2023 (Exhibit H1) and to which he replied on the same day in Exhibit 1 where he explained his side of the story and stated that although he knew nothing about the crime, he clearly admitted in his pleadings and testimony to be aware of the alleged diesel theft in the location of the theft. Counsel relied on the cases of LAWRENCE JIRGBAGH V. UNION BANK OF NIGERIA PLC (2000) 17 WRN; ATADI V. UNION BANK OF NIGERIAN PLC (2006) ALL FWLR (PT. 285) 517; ARINZE VS FIRST BANK PLC (2004) ALL FWLR (PT. 217) 668 and submitted that in deciding this issue of fair hearing, the issue to be determined is not whether or not the Claimant’s conduct amounted to misconduct warranting dismissal from service, but whether due process was followed before decision to terminate his appointment was reached. He equally added that the duty of the Court in this issue is not to find whether or not there is justification for dismissal of the Claimant, rather this court is only concerned with whether the procedure laid down in the pre-deployment/employment agreement (Exhibit 1) and employee handbook rules (Exhibit 1) has been followed or not strictly complied with. Counsel submitted that that an administrative tribunal is not bound to follow the procedure and practice of the court of law; never the less it is bound to observe and comply with the principles of natural justice, that a person who may be adversely affected by its decision is entitled to be given adequate opportunity not only to know the case against him/her but also to answer it. It is submitted that the Claimant’s contention that he was not accorded his fundamental rights to fair hearing guaranteed under Section 36(1) of the 1999 Constitution (As amended) is highly misconceived. Counsel relied heavily on the cases of U.B.A PLC V. ORANUBA (2014) 2 NWLR (PT. 1390) Page 1 @ 21; YUSUF V. U.B.N. (1996) 6 NWLR (PT. 457) Page 41-42, PARAS. H-B; SOGBESAN V. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 35; IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR 9 (PT. 1262) 624 @ 640. Counsel finally submitted that on the issue of fair hearing in labour cases similar to this suit, it is clear as crystal that the Claimant in this suit was afforded the best opportunity and adequate time to defend himself in total and satisfactory compliance with the rules of fair hearing and in respect for his constitutional right to fair hearing before he was summarily dismissed by the 1^st Defendant/Counterclaimant on the 28^th November 2023. 
19. On Issue Three, Counsel submitted that the 1^st Defendant/Counterclaimant acted within the scope or terms/conditions of the Claimant’s Pre-deployment/Employment Agreement (Exhibit 1) and the express provisions of its Employee Handbook and code of conduct (Exhibit 2) in summarily dismissing the Claimant on the 28^th November 2023. He added that it is not under any form of debate, whether the Claimants employment is that of a master/servant relationship or not as the parties very clear and in an agreement as well, pursuant to the employment agreement that the relationship between the Claimant and the 1^st Defendant/Counterclaimant, before the Claimant was summarily dismissed was clearly that of a master/servant relationship. Counsel submitted that submitted that where an employer did not breach any provision or clause in an employment agreement or its employee handbook in the process of the dismissal or termination of an employee’s employment (as is in this case), the court is duty-bound to uphold such dismissal as legal and valid because the action was duly taken by following due process as agreed by the parties in their contract (employment agreement). Learned Counsel further submitted that it is a well settled principle of law that, where a Claimant alleges an unlawful dismissal or termination, the onus is strictly on him to prove which term of his employment agreement was breached and how same was breached by the employer (Defendant). He submitted that the Claimant in this suit, failed woefully in the trial of this suit to even present to the court any clause of his employment agreement that was purportedly breached by the 1^st Defendant/Counterclaimant, talk less of even proving how such term or condition was or could have been breached by the 1^st Defendant/Counterclaimant. He referred the Court to the case of MINTING PLC V. OLALEYE (2020) LPELR-50409 (CA). Counsel submitted that it is not part of the judicial responsibilities of this Honourable court to begin to shop for any possible clause or provision in the Claimant’s employment agreement and employee handbook that may or could have been breached by the 1^st Defendant/Counterclaimant when the Claimant never presented any. He relied heavily on the authorities of AJI V. CHAD BASIN DEV AUTHORITY & ANOR (2015) 3-4 SC (PT. 2) 1 @ 29; WEJIN V. ASHAKA CEMENT CO LTD (1991) 8 NWLR (PT. 211) 608; EDET V CHIEF OF ARMY STAFF (1994) 2 NWLR (PT.324) 4. Learned Counsel again submitted that where the condition of service exists between an employer and employee, the provisions contained therein is binding on them. As the state of the law as it relates to termination of Contract or appointment is that the Court will not only look at the terms of the Contract or Appointment but must limit itself to the said terms. He referred the Court to the case of LAYADE V PANALPINA WORLD TRANS. NIG. LTD (1996) 6 NWLR (Pt. 456) 544 @ 558, para B. Counsel submitted that the fundamental documents for this court to evaluate to successfully determine whether or not the 1^st Defendant/Counterclaimant breached or acted ultra vires the terms and conditions of the Claimant’s employment are simply the employment agreement (Exhibit 1) and employee handbook (Exhibit 2). He added that the 1^st Defendant/Counterclaimant has no obligation to prove that it followed due process or that it did not breach any term or condition of service of the Claimant in this case, because the Claimant failed woefully to present or prove any term or condition of his employment agreement that was purportedly breached by the 1^st Defendant/Counterclaimant. Relying on the case of EKEAGWU V. THE NIGERIAN ARMY (2010) LPELR-1076 (SC); [2010] 16 NWLR 419, Counsel submitted that it is only when the Claimant has established that he was wrongfully dismissed, would the Defendant be called upon to justify the dismissal.
20. On Issue Four, Learned Counsel submitted that the Claimant have failed woefully to discharge the onus of proof put on him by law to entitle him to the reliefs Claimed herein in this suit. Learned Counsel equally submitted that it is trite that claims for salaries, pension deductions and gratuities are claims for special damages, in which the party making the claim has a burden of proving his claim strictly by cogent, compelling and credible evidence. As the law is very clear that claims are circumscribed by reliefs claimed; and the duty of a Claimant, therefore, is to plead such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He referred the Court to the case of GABRIEL ATIVIE V. KABLEMETAL (NIG.) LTD (2008) LPELR-591(SC).  Counsel again submitted that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim as supported by the combined effect of Sections 131, 132, 133 and 136 of the Evidence Act, a person who asserts a fact has a duty to prove the existence of that fact. He relied on the case of GBADAMOSI V TAIWO (2004) 43 WRN 51 at 56 Ratio 2; U.B.A. PLC V. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A.; EKEAGWU V. THE NIGERIAN ARMY (2010) LPELR-1076 (SC); [2010] 16 NWLR 419 to buttress his point. Counsel equally submitted that an employee who complains of wrongful termination of his employment must place before the Court the terms of the contract of employment and then prove how the terms were breached by the employer. As the Claimant in this case failed woefully to satisfy these requirements by any convincing evidence or exhibit in the trial of this case. He referred the Court to the case of KATTO V. CBN [1999] 6 NWLR (PT. 607) 390 SC. Counsel amongst other things argued that the Claimant failed to clearly show and prove during trial, the actual sum of his purported unremitted pensions (if any). As the 1st Defendant/Counterclaimant stated in its defence that all the Claimant’s pensions for the period he worked for the 1st Defendant were duly remitted to the Claimant’s Pension Fund Administrator (PFA) which made her to confront the Claimant’s PFA upon being served with the originating processes of this suit, but the said Claimant’s PFA informed the 1st Defendant that the Claimant’s pension have all been duly remitted. Counsel submitted that the claims of the Claimant for damages and cost of this suit is unsubstantiated as there is no evidence before this court to show that the Claimant paid their counsel in this suit and neither did the Claimant establish in anyway before this court what damages he suffered as a result of the 1^st Defendant/Counterclaimant’s lawful acts. Counsel added that it is a trite law that the court will not order payment of salaries for services not rendered. He referred the court to the cases of OLATUNBOSUN V. NISER (1988) 3 NWLR (PT. 80) 25 @ 55; SPRING BANK PLC V. BABATUNDE (2011) JELR 46737 (CA). Counsel posited that  a party cannot profit from his own wrong acts and errors as in the case of the Claimant who breached the terms of his employment agreement and handbook which documents are the fundamental rules guiding his relationship with the 1^st Defendant/Counterclaimant. He relied on the cases of VINZ INTERNATIONAL NIG. LTD V. MOROHUNDIYA (2009) 11 NWLR (PT. 1153) 562, NEW NIGERIA BANK PLC V EGUN (Supra) 22 at 34 Ratio. Counsel submitted further that in evaluating the evidence with a view to verifying which side is weightier in probative terms, regard should be to the quality and not the quantity of the evidence adduced by both parties. He referred the Court to the case of GBADAMOSI V TAIWO (supra) at p. 58. Counsel finally submitted that it is trite that where it is found that, an employee was lawfully dismissed by the employer (as is in this case), the case must fail and all the claims for damages, cost or salary in lieu of notice by the Claimant must also fail. MACFOY V. UNITED AFRICA COMPANY (1962) AC 152 @ 160.
21.  On Issue Five, Counsel submitted that that the 1st Defendant/Counterclaimant has sufficiently and satisfactorily discharged the onus of proof put on her to be entitled to the grant of all the reliefs claimed in its counter-claim herein. As it is trite that he who alleges the existence of a fact must prove same. Sections 131, 132, 133 and 136 of the Evidence Act. He submitted that all the evidence were not successfully controverted by the Claimant. He urged the Court to rely on the 1^st Defendant/Counterclaimant evidence in this case which is not in any slightest way successfully controverted by the Claimant at all, because it is trite that the proof of civil case is on the preponderance of evidence. He referred the Court to the case of ARABAMBI V. A.B.I LTD (2006) MJSC 61 @ 77. Counsel finally submitted that it is submitted that the 1^st Defendant/Counterclaimant fulfilled every legal requirements in the summary dismissal of the Claimant as settled in the case of ALHAJI LASISI YUSUF V. UNION BANK (1996) 6 NWLR (PT. 457) 632 SC.

CLAIMANT’S FINAL SUBMISSIONS

22. The Claimant’s Final Written Address was franked by Learned Counsel Adeyemi Pitan Esq., of Karis Attorneys. Counsel to Claimant  in his Final Written Address formulated four (4) issues for determination to wit;
    1. Whether from the facts and circumstances of this case, the Claimant’s right to fair hearing was not breached when the Defendants relied on the report of the panel of investigation (Exhibit Rahim 8) to dismiss the Claimant even when the Claimant was not invited to appear before the said panel? 
    2. Whether from the facts and circumstances of this case, the termination/dismissal of the Claimant’s employment was not wrongful.
    3. Whether the Claimant is not entitled to damages for unlawful termination of his employment.
    4. Whether the 2^nd Defendant is not privy to the Contract of employment between the Claimant and the 1^st Defendant

 

23.  On Issue One, Learned Counsel submitted that submit that the right to fair hearing of the Claimant was breached when the Defendant relied on the report of the panel of investigation set up by the 1^st Defendant to dismiss the claimant without affording him the opportunity to appear before the aforesaid panel. It is submitted that the allegation of diesel theft which the Defendants stated as the reason for the termination/dismissal of the Claimant’s employment borders on serious allegation of crime for which the Defendants ought to give the Claimant, adequate time and opportunity to defend himself by knowing the evidence presented against him and having the opportunity to defend same. He relied heavily on the case of AROBIEKE .V. N. E.L.M.C (2018) 5 NWLR pg. 385 pt.1613.  Counsel further added that it is trite that where an employer wants to dismiss its employee on ground of misconduct and or crime, he ought to set up a panel to investigate the allegation bestowed on the employee and give him an opportunity to defend himself or tell his own part of the story. He submitted that to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of formal charge. It is sufficient if the complaint, as formulated, conveys to him the nature of accusation against him. In cases of criminality, all that is required of an employer before summarily dismissing an employee, is to give him fair hearing by confronting him with the accusation made against him and requiring to defend himself. He referred the Court to the cases of ONWUSUKWU.V. CIVIL SERVICE COMMISSION (2020) 10 NWLR PT 1731; U.B.A PLC.V. ORANUBA (2014) NWLR PG1 PT. 1390. He equally submitted that that the rules of fair hearing are not procedural but fundamental, the Claimant was not given adequate time and opportunity to defend himself. Counsel argued that the case of IMONIKHE V UNITY BANK PLC (2011) 12 NWLR (1262) 624 AT 640 relied on by the Defendant is not relevant and does not apply to the instant case. He argued that a calm and dispassionate perusal of the investigation report (Exhibit Raheem 8) shows that the committee invited verbal testimony from a so called driver who testified before them. The Claimant was never invited before the committee to cross examine the said Access bank driver. He submitted it was a gross violation of the rule of fair hearing. He referred the Court to the case of NTEWO V UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR (2013) LPELR- 20332. 
24.  On Issue Two, Counsel submitted that the rules of engagement in any master Servant employment is the contract of employment which more often include the employee staff handbook as what essentially governs the relationship between the employer and the employee is the employment contract. It is usually expected that any step that would be taken by both parties must essentially be regulated by the said contract. He relied on the case of DANGOTE CEMENT PLC V AGER & ANOR 2024 LPELR 61800 (SC). Counsel submitted that Exhibit Rahim 2 which is the Employee handbook stipulates the required notice that should be given before the employment of any staff could be terminated. As such the Claimant having spent 12 years in the employment of the defendants was entitled to one month notice of termination or where notice is not given, one month salary in lieu of notice. Rely on the authority of DANGOTE CEMENT PLC V AGER & ANOR (SUPRA) Counsel submitted that the 1^st Defendant was wrong to have terminated the Claimant’s employment contract without regard to the employment contract which makes the employment wrongful. Counsel further submitted that the Defendant cannot validate its wrongful act hiding under the provision of the employment contract. He submitted that the reliance by the 1^st Defendant on Exhibit Rahim 1 which is Clause 18 on page 2 of the Pre-deployment/Employment agreement. The said clause makes the commission of a crime or misconduct by an individual an imputation of crime or misconduct on other members of the team. Counsel submitted that the said clause is an unfair clause which is not in tandem with international best practice in industrial and labour relations. As this court is empowered under Section 7(6) of the National Industrial Court Act to assume jurisdiction and have regard to good and international best practice in industrial and labour relations. Counsel relied on the case of SAHARA ENERGY RESOURCES LIMITED V OYEBOLA (2020) LPELR- 51806(CA). Counsel submitted that submit with the greatest respect that the collective punishment highlighted above contained in the Claimant’s contract  is not in any way in tandem with international labour practice all over the world notwithstanding that the Claimant signed the contract. He urged the Court to declare null and void the clause on collective punishment as same is in violation of international best practice.  
25. On Issue Three, Counsel submitted that having established that there was unlawful termination of the   Claimant’s employment; the Claimant is entitled to damages. He added that the 1^st defendant failed refused and or neglected to give the Claimant the required one month notice as stipulated in Clause 12.0 of  Exhibit Rahim 2 which is the fulcrum of the Master/Servant relationship between the Claimant and the 1^st Defendant. The failure of the 1^st Defendant to give one month notice in lieu gives this court power to make an order for the payment of one month salary in lieu of notice. Counsel further submitted that by virtue of   provision of Section 19(d) of the National Industrial court Act which  empowers this court to make an award of compensation or damages in any circumstances contemplated under the act or any other act of national assembly dealing with any matter that the National Industrial Court  has jurisdiction to hear, this court can award damages and compensation against the  Defendants for the brazen disregard for the terms of the employment contract on an alleged commission of the offence of diesel theft. He referred the Court to the cases of SAHARA ENERGY RESOURCES LIMITED V OYEBOLA (2020) LPELR- 51806(CA); BRITISH AIRWAYS V MAKANJUOLA, (1993) 8 NWLR (PT 311) 276 AT 288. In further support of his argument, Counsel referred to the cases of ONAH V NLC (2013 33 NLLR(PT 94) suit number NIC/ABJ/47/2011, where this court awarded 2 years salaries in favour of the claimant on the basis that his feelings have been affected negatively by the actions of the defendants and  AKINWALE V UBA PLC  Unreported judgment NIC/LA/210/2011, where the bank paid the employee one month’s salary in lieu of notice but the court held that it was not enough to redress the effect of unlawful termination and awarded 6 months   gross pay to the Claimant as compensation for the wrongful loss of employment.
26. On Issue Four, Learned Counsel submitted that the 2^nd Defendant is privy to the contract of employment which was entered in to by the Claimant and the 1^st Defendant. He agreed that the rule of privity of contract is sacrosanct in contract which is to the effect that only parties to a contract are allowed by law to enforce the terms of the contract. He referred the court to the case of SHUWA V CHAD BASIN AUTHORITY (1991) 7 NWLR (PT 205) at Page 250. Counsel submitted that one of the exceptions to the doctrine of privity of contract is the Agency relationship. If an agent enters in to a contract with a third party in his capacity as an agent of his principal although not a party to the contract can sue and therefore enforce such contract. The 3rd party can also sue the disclosed principal to enforce performance of any obligation under the contract. Counsel argued that the 2^nd Defendant is a Principal of the 1st Defendant as a Principal Agency relationship exists between them. The 2nd Defendant hired the services of the 1st Defendant to recruit and hire security guards on its behalf. He then submitted that the principal is bound by the acts of the agent any person who is affected by the acts of the agent and can sue to enforce the performance of the contract which binds the principal. He relied on the case of STANBIC IBTC BANK V LONG TERM GLOBAL CAPITAL LTD & ORS to buttress his point. Counsel finally submitted that the 2^nd Defendant cannot extricate itself from the unlawful acts of the 1^st Defendant who without recourse to any due process terminated the Claimant’s employment. The 2^nd Defendant being the principal of the 1^st Defendant is duly bound by the acts of the 1^st Defendant.

 

DECISION

27. I have summarized the facts, evidence and reviewed the positions of learned Counsels on both sides. I have also studied judiciously and read in-between lines all the relevant processes together with the authorities cited by counsels. I have also meticulously listened to witnesses called by both parties and reviewed the arguments canvassed by both Counsels in their final written submissions. The issues to my mind for determination are; 
28. Whether having regard to the facts and circumstances of this case, there existed any privity of contract between the Claimant and the 2^nd Defendant? And if no, whether there is established against the 2^nd Defendant a reasonable cause of action. 
29. Whether or not the Claimant was given a fair hearing or the opportunity to defend himself, before he was summarily dismissed by the 1^st Defendant/Counterclaimant?
30. On Issue one, Learned Counsel to the 2^nd Defendant began his submissions by stating that the employment, deployment and subsequent termination of the employment of the Claimant by the 1st Defendant is exclusively regulated and determined by the 1st Defendant’s contract of employment with the Claimant, to which the 2nd Defendant was not a party. He submitted that not only has the Claimant failed to establish any contractual relationship between himself and the 2^ndDefendant, the Claimant has also failed to show proof to the Court that there exists a privity of contract between him and the 2^nd Defendant. Counsel to the Claimant on the other hand submitted that the 2^nd Defendant is privy to the contract of employment which was entered into by the Claimant and the 1^st Defendant. While he agreed that the rule of privity of contract is sacrosanct in contract which is to the effect that only parties to a contract are allowed by law to enforce the terms of the contract, counsel to the claimant however submitted that one of the exceptions to the doctrine of privity of contract is the Agency relationship. Counsel argued that the 2^nd Defendant is a Principal of the 1st Defendant, and as a Principal, Agency relationship exists between them. Replying to the Claimant, 2^nd Defendant submitted that the Claimant failed woefully to show that the 1^st Defendant was indeed an agent of the 2^nd Defendant concerning the employer-employee relationship between him and the 1^st Defendant.
31.  Let me begin by saying that, ordinarily, an employment relationship involves only two parties i.e. the employer and the employee. However, in contemporary times, the International Labour Organization of which Nigeria is a member has acknowledged that there are situations in which three individuals or entities can be involved in employment relationship, in what might be termed a “triangular employment relationship”. Now, a triangular employment relationship occurs when employees of an enterprise (the “provider”) perform work for a third party (the “user enterprise”) to whom their employer provides labour or services. See - ILO The Scope of Employment Relationship (ILO report V) International Labour Conference 91^st Session Geneva 2003.
32. This form of employment can come in different forms especially where the user of the employee’s services is not the primary employer. Triangular employment usually involves three relationships; 
    1. the commercial relationship between the outsourcing agency and the end-user; 
    2. the employment relationship between the outsourcing agency and the employee; 
    3. and the secondment of the employee from the outsourcing agency to the end-user. 

 

The position of the law before the arrival of the concept of triangular employment is that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. Thus, in the event of any dispute arising from triangular employment relationship, the employee can only maintain an action against the employment agency and not the end-user. This position is largely based on the principle of privity of contract. The very recent case of LUCK GUARD LTD V. ADARIKU & ORS; CA/ABJ/1061/2020 delivered on the 20^th of December 2022, where the Court of Appeal Per Adah had this to say and held thus; 

 

“As a general rule, the doctrine of privity of contract is that a contract cannot confer or impose obligations arising under it on any person except the parties to it. In other words, only parties to a contract can sue or be sued on the contract, and a stranger to a contract cannot sue or be sued on the contract. The doctrine of privity of contract is all about the sanctity of contracts between parties to it. It does not extend to others from outside. The doctrine will not apply to a non-party to the contract who may have unwittingly been dragged into the contract with the view to becoming a shield or scapegoat against the non-performance by one of the parties. See FEBSON FITNESS CENTRE V. CAPPA HOLDING HOLDINGS LTD (2014) LPELR-24055 (CA)AND UBA PLC & ANOR V. JARGABA (2007) NWLR (PT. 1045) 257.” 

1. Did the end user actively participate in the recruitment of the employee; 
2. Does the end user, give directives to the employee also including prescribing the employee’s remuneration, benefits and job type; 
3. Does the end user carry out disciplinary action without recourse to the outsourcing agency and; 
4. Is the end user absolutely responsible for the termination of the employee’s employment. 

The National Industrial Court in determining the issue of triangular employment in the case of PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION V MOBIL PRODUCING NIGERIA UNLIMITED. NINC/LA/47/2010 delivered on the 21^st March 2012 held that the determination of the existence of an employment relationship will be guided by the facts of what was actually agreed and performed by the parties, and not by the name the parties have given the contract. As the question will be decided on the basis of the facts, irrespective of how the parties describe the relationship. See also STEPHEN AYAOGO & ORS V. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR (2013) 30 NLLR (pt. 85) 121 NIC.  

In the instant case, the Claimant in paragraph 4-6 of his Statement of Facts stated that he was employed by the 1^st Defendant in 2012, and that upon his employment, he was seconded to the NASDRA branch of the 2^nd Defendant where he worked between June 1, 2012 and October 1, 2014 when he was again deployed to the Wuse Market branch of the 2^nd Defendant between October 1, 2014 and October 1, 2016. He was subsequently deployed to the 2^nd Defendant Durumi Branch in 2019, where he worked until his employment was terminated. The Claimant under cross-examination, stated as follows; 

“1st defendant employed me and posted me to the 2^nd Defendant branch at Obasanjo Space Centre. I was also posted in October 2014 to Wuse Market Branch, in October 2016 to Jos Street branch. I could have been posted to any organization outside the 2^nd Defendant. 2^nd Defendant did not employ me, and they have no role to play in my engagement, posting and redeployment.” 

 

Also, the Claimant again under cross-examination stated as follows; ‘I am not on the payroll of the 2^nd Defendant. My pension is deducted from my salary. It is the 1^st Defendant that ought to remit into my pension account.’ The Claimant again in paragraphs 15 -18 of his Statement of facts stated that after he was released from the police station, he was allowed to go home and not to go back to resume duty at the 2^nd Defendant’s branch. He stated that he was told by the Regional Manager of the 1^st Defendant to stay off work without any justification nor payment of his salaries. He stated that he kept going to the office of the 1^st Defendant to make enquiries about his case, until his employment was terminated by the 1^st Defendant on the 28^th of November 2023. In response to this, 2^nd Defendant in paragraph 12 and 13 of its statement of defence stated that following the discovery of the theft, and the involvement of the security personnel, the 1^st Defendant was called in as the parent company responsible for the Claimant and other security personnel. It stated that the 1^st Defendant initiated an investigation into the matter and forthwith withdrew the security personnel including the Claimant. Under cross examination, the Claimant again stated that; “1^st Defendant terminated my employment and not 2^nd Defendant”. A cursory look at Exhibits J1 (Halogen Security Company Limited Pre- Deployment Employment Agreement), J2 (Claimant’s Letter from Halogen Security Company with Heading “Service no Longer Required) and J3 (Access Pensions Statement of Account, Mr. Jonathan Garashi Goje, Employer: Halogen Security Limited) shows that not only was the Claimant employed by the 1^st Defendant, but his contributory pension was deducted from his salary with the 1^st Defendant, and his employment was subsequently terminated by the 1^st Defendant. 

From all the analysis listed above, while it is true that the principle of privity of contract would necessarily not apply, especially when it is a triangular employment, however, recourse must be made to the facts and evidence presented before the court can decide whether the employment relationship is not triangular in nature. To this end, I find and hold that requirements to establish a nexus between the Claimant and the 2^nd Defendant in terms of an existing employment relationship is missing. Thus, I agree with the 2^nd Defendant, that there is no privity of contract between the Claimant and the Defendant. With that answered, it is trite law that where there is no privity of contact between parties to a suit, then there exists no reasonable cause of action against such Defendant as well. See the cases of EZEAFULUKWE V. JOHN HOLT LTD. (1996) (1996) 2 NWLR (PT. 432) 511; BASINCO MOTORS LTD V. WOERMANN - LINE (2009) 13 (PT. 1157)149; REBOLD IND. LTD. V. MAGREOLA (2015) 8 NWLR (PT. 1461) 210; REICHIE V. NIGERIA BANK FOR COMMERCE& INDUSTRY (2016) LPELR 24612; OSOH V. UNITY BANK PLC (2013) 9 NWLR (PT. 1358) 1. I find and hold that there is no reasonable cause of action against the 2^nd Defendant.  

 

On the second issue, the main contention of the Claimant is that he was not afforded an opportunity to face and defend the allegations against him before the 1^st Defendant’s Investigation and Disciplinary Committee, which amount to a breach of his right to fair hearing.  The starting point is: what was the nature of the Claimant’s employment with the 1^st Defendant? Generally, employments fall into three categories namely: (a) Master and servant; (b) A servant holds office at pleasure, and (c) Employment that is governed by statute. See FMC IDO-EKITI & ORS v. ALABI (2011) LPELR-10931(CA); OVIVIE & ORS V. DELTA STEEL CO. LTD (2023) 14 NWLR (PT. 1904) AT 203(SC).   From the pleadings and the evidence led at the trial, the present case neither fall within the second nor the third class. But the employment of the Claimant and 1^st Defendant is one of master and servant relationship. The Claimant and the 1^st Defendant are very much in agreement on this fact. The law regarding master and servant is well settled that where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated. In this instant case, the Claimant and 1^st Defendant are bound by Exhibit J1 (Halogen Security Company Limited Pre- Deployment Employment Agreement), and Exhibit Rahim 2 (Halogen Security Company Limited Security Officer’s Handbook and Code of Conduct). Generally, under a master/ servant relationship such as in the instant case, the master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. While the 1^st Defendant counsel strenuosly submitted that where an employer intends or decides to summarily dismiss an employee, the major factor in the disengagement letter that distinguishes the employee’s dismissal from an ordinary termination, is simply the specific giving of clear reasons for the dismissal in the letter of disengagement to the Employee by the Employer. However, the Claimant submission is that the right to fair hearing of the Claimant was breached when the 1^st Defendant relied on the report of the panel of investigation set up by the 1^st Defendant to dismiss the claimant without affording him the opportunity to appear before the aforesaid panel. And that the allegation of diesel theft which the Defendants stated as the reason for the termination/dismissal of the Claimant’s employment borders on serious allegation of crime for which the Defendants ought to give the Claimant, adequate time and opportunity to defend himself by knowing the evidence presented against him and having the opportunity to defend same.

In the well-known case of ARINZE v F.B.N. LTD (2004) LPELR- 551(SC) the Apex Court had this to say on the issue of Summary dismissal; 

 

"It is not necessary, nor it a requirement under Section 33 of the 1979 Constitution (Section 36 of the 1999 Constitution) that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is gross misconduct involving dishonesty bordering on criminality.....”. 

 

At common law, in a master and servant relationship devoid of statutory flavour, an employer has the right to summarily dismiss an employee on grounds of misconduct or willful disobedience. However, where conditions of service exist between the employer and the employee, the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. Therefore, an employee who complains that his employment was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. See U.T.C NIG. PLC V. PETERS (2022) 18 NWLR (PT. 1862) AT 297(SC). It is obvious from the letter ending the Claimant’s employment (Exhibit J1) that the reason for his dismissal is based on the repeated involvement in the theft of diesel at Access Bank Durumi Branch. This is further implied upon the perusal of Exhibit Rahim 7 (Disciplinary and Investigation Committee Report) which reads as follows; 

“The Committee deliberated the facts elicited from respondents interviewed and arrived at the conclusion that Beka Efejedia, Austin Ejiro Joseph, Joseph Ugo, James Ekale, Tijjani Ugbede, and Jonathan Goje Garashi had colluded among themselves and the Dieselsupplier9Tanker) Drivers to steal diesel belonging to Access Bank and utilized the Driver Mr Mike as conduit for the sale and sharing of illegal proceeds from the diesel sale. The Committee considered the provisions of Clause 18 of the Accused Guards deployment and employment agreement and Halogen’s Security Officer’s Handbook and Code of Conduct, Serial Number 8 & 9 and Clause 32 on Stealing of the Company’s or Clients property which provides the for collective punishment for offences committed in a location without exposure by Guards in the location and punishment of Summary Dismissal and prosecution accordingly.”. 

 

It is based on this Deliberation and Recommendation that the Claimant’s Employment was summarily dismissed. 

 

However, the Claimant’s grouse remains that he was not afforded a right and opportunity to defend himself against the allegation before the Disciplinary and Investigation Committee. Keeping in mind that it is trite law that parties are bound by the terms of their contract and the duty of the Court is to interpret the terms of the contract to reflect the intention of the parties and give effect to the same. The constitutional guarantee for the right to fair hearing in Section 36 (1) of the 1999 Constitution, (as amended) has its origins in the common law principles of natural justice, essentially meaning that both sides should be heard, so that no man is condemned unheard. What this means is that a person must be given equal opportunity to present his case to the Court/administrative Tribunal and no party should be given more opportunity or advantage in the presentation of his case, in preference to the other. See INAKOJU V. ADELEKE (2007) 4 NWLR (PT.1025) 425 @ 618 E – F; UMAR v. SUN MICRO SYSTEM LTD & ORS (2020) LPELR-51097(CA).

While this is generally the rule of fair hearing, it is important to state that in an employment relationship such as in this instant case, to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defence. 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. See YUSUF V. UNION BANK (1996) 6 NWLR (PT. 457) 632; AVRE V. NIPOST (2014) LPELR-22629(CA).  The effect of this is that, before an Employer can end the services of his Employee, all he has to do is afford the Employee an opportunity to be heard before exercising his power of summary dismissal. This is so even where the allegation against the Employee involves an accusation of crime. In the instant case, the Claimant in his pleadings stated that after he was exonerated by the police on the allegation of theft of Diesel at the 2^nd Defendant’s Durumi Branch, the 1^st Defendant told him to stay off work, only to be later told to receive a letter which ended his employment. He claimed that the allegation of theft of the said diesel was not proven before any panel set up by the 1^st Defendant, neither was it proven before a competent court of law. The 1^st Defendant in its pleadings stated that upon being informed by the 2^nd Defendant of the alleged theft of diesel involving the Claimant and other guards, it carried out its own investigation. The Police investigation further revealed and confirmed that the diesel was being stolen by the 1^st Defendant’s Guards in connivance with the diesel supplier (Tanker Driver) and Mr. Mike the driver of the 2^nd Defendant’s Durumi Branch Manager. 1^st Defendant further stated that upon this discovery, queries were issued to the Claimant and other guards involved in the diesel theft, and most of the guards admitted to participating in the alleged theft thereby corroborating the fact that the Claimant was involved in the alleged theft. Claimant in his reply stated that the police did not find him culpable with respect to the offence of the stolen diesel, and that there is no evidence from either the 1^st and 2^nd Defendants or police that shows the Claimant’s involvement in the alleged diesel theft.  The Claimant in his pleadings never admitted to responding to any query, which shifts on the 1^st Defendant, the burden of proving that the Claimant indeed responded to the query. It is trite law that where a Claimant has discharged the burden of proof placed on him, the burden of proof shifts to the defendant who then would want the court to believe his defence version. See ABAYOMI V. SAAP-TECH (NIG) LTD (2020) 1 NWLR (PT. 1706)453. And it is also settled law, that parties are bound by their pleadings. 1^st Defendant tendered Exhibit Rahim 3, query letter dated 23^rd October 2023, addressed to the Claimant. I have gone through the said Exhibit Rahim 3 I did not find Claimant’s reply to the 1^st Defendant’s query. 

Claimant while being cross examined by counsel to 2^nd Defendant however stated thus: “My Supervisor issued me a query to explain what took place and I answered that I don’t know anything about the incident.” Not only this Dw2 who was part of the Disciplinary and Investigation Committee was categorical when he said “Claimant was invited.” Again, a look at the processes before me, the court’s record shows that the 1^st Defendant pleaded and frontloaded the response of the Claimant to the said query. It is the position of law that the court can look at any document in the file to resolve any issue before it. See AMOBI V. OGIDI UNION NIGERIA (2023) 1 NWLR (PT. 1864) 153. However the worrying part here is the attitude of the Claimant who denied ever being served with a query but later under cross-examination to so admit and even testified that he responded to the query. It is a trite law that a party cannot approbate and reprobate or blow hot and cold at the same time. The law frowns at a person natural or artificial, changing like shifting shadows or like the shadow of a weather vane as the Claimant did in the instant case. See Folksynthesis Ltd. v. Gapuma (UK) Ltd (2017) 8 NWLR (Pt. 1566) 150 @ 165; Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638.  

 

 The thing about fair hearing is that it is a principle which is based on facts and must be based on the facts of the case before the Court. Only facts of the case can influence and determine the application or applicability of the principle. Thus, the principle of fair hearing is helpless, or completely dead outsides the facts of the case. On this I find and hold, that by the query letter (Exhibit Rahim3); his evidence under cross examination and the evidence of Dw2 conclusively prove that Claimant was given sufficient time and space to respond to the allegation made against him. Again, I have perused the contents of Exhibit Rahim 2, one of the offences listed is stealing of the Company’s or Clients Property, which attracts a penalty of summary dismissal and prosecution. I have said it somewhere in this judgement that where an employee, is to be summarily dismissed from his employment with is employer, all that is required is that such employee be first given the opportunity and resources to defend himself before being summarily dismissed. Where the misconduct even bothers on a serious allegation involving the commission of a crime, the Employer need not necessarily try the employee before any court, he can simple exercise his right to bring to an end the employment relationship so long as what he does is within the ambit of their mutually agreed bond. I find that the argument of Claimant counsel in paragraph 3.04, 3.05, 3.10 of his Written Address to be misconceived. 

At this juncture, the pertinent question is whether the query issued by the 1^st Defendant (Exhibit Rahim 3) is sufficient enough to have given the Claimant fair hearing given the fact that the Claimant did not appear before the Disciplinary and Investigative Panel to Defend himself against the allegation of stolen diesel at the 2^nd Defendant’s Durumi Branch. In the case of IMONIKHE V. UNITY BANK PLC [2011] LPELR-1503(SC); [2011] 12 NWLR (PT. 1262) 624 SC, the Appellant while in the service of the Respondent was issued with a query where he was accused of fraud to which he responded, he was subsequently issued with another query to which he also responded, the matter was referred to the disciplinary committee of the respondent which found the replies of the Appellant unsatisfactory. The Appellant was found guilty of the relative offence as charged and dismissed from the service of the Respondent. The Supreme Court, Per Justice Rhodes-Vivour, JSC, held that accusing an employee of misconduct, etc. by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. Per Onnoghen CJN (as he then was) in the same appeal held thus 

“when an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirements of fair hearing because he answered the respondent’s queries before he was dismissed from his employment”. 

 

I have read through the content of Exhibit J1 and Rahim 2, I did not find any specific matter or procedure required to be taken before an employee can be summarily dismissed. And it is a common law principle of fair hearing to give an opportunity to the accused person to defend himself. Where there is no specific procedure or requirement, as in this instant case, it is sufficient that the Claimant was afforded the opportunity to face his allegations and defend himself in his response to the query issued to him by the 1^st Defendant. I find no other reasons than to agree with the submissions of Counsel to the 1^st Defendant and hold that the Claimant was given sufficient fair hearing via his response to query Exhibit H2, and based on that response, his employment was summarily dismissed. Now that this has been resolved I must also state that where an employee is guilty of gross misconduct, he could be lawfully dismissed summarily without notice and without wages. See NJC & ORS v. SENLONG & ORS (2010) LPELR-4582(CA).

 

On Claimant relief one, it is trite law that where a party seeks declaratory reliefs, he must succeed on the strength of his own case, and not on the weakness of the defence, if any. See: DUMEZ NIG. LTD. VS NWAKHOBA (2008) 18 NWLR (PT.1119) 361; BELLO VS EWEKA (1981) 1 SC (REPRINT) 63; EMENIKE VS P.D.P. (2012) 12 NWLR (PT.1315) 556; ILORI VS ISHOLA (2018) LPELR-44063 (SC). I find that the Claimant has failed to place before this court evidence to show that Claimant’s contract of employment vide letter dated November 28, 2023 by the 1st Defendant purportedly on the recommendation and advice of the 2nd Defendant without any establishment of guilt is illegal, unlawful, null and void and of no effect. 

 

On relief two, I find that the letter of dismissal issued by the Defendant did not violate the rules of fair hearing.

 

On relief three, I find that the Claimant being summarily dismissed is not entitled to any remuneration or benefit whatsoever. As he can be dismissed without pay. See NJC & ORS v. SENLONG & ORS (SUPRA).

 

On relief four, the Claimant pleaded that the 1^st defendant has not remitted his monthly pensions from 2013 to 2015, the 1^st Defendant in response pleaded that it regularly remitted the Claimant’s pension to his pension administrator and there was never an omission until the Claimant was summarily dismissed. A careful perusal of Exhibit J3 (Access Pensions Statement of Account) shows that the remittance on Exhibit J 3 starts from 09/05/2017 to 26^th February 2024. Claimant fail to bring prove that the several outstanding pensions including that of December 2013 to December 2015 was not remitted. To this end, I am satisfied and I find and hold that this head of claim must fail. I so hold. 

 

On Issue five and six, I find and hold, that the Claimant is not entitled to any benefit or privilege including gratuities given that he was summarily dismissed from his employment. Also, the Claimant will not be entitled to any damages, given that termination of his contract of employment is not in any way unlawful. 

On Issue seven, I make no order as to cost.

 

Now the 1^st Defendant’s Counter claim, the 1^st Defendant/Counterclaimant claims against the Claimant/Defendant the following;  

1. A declaration that the claims against the 1st Defendant in this suit are null, void, gold digging and unsubstantiated.
2. A declaration that the Claimant has no valid cause of action against the 1st Defendant in this suit.
3. A declaration that the Claimant was lawfully dismissed summarily by the 1st Defendant and the 1st Defendant’s letter to the Claimant dated 28th November 2023 amounts to summary dismissal.
4. A declaration that the Claimant having been summarily dismissed is not entitled to any gratuity or retirement benefits of any kind.
5. An order dismissing the suit of the Claimant in its entirety for lacking in merit, being incompetent, gold digging, misconceived and frivolous.
6. An order of special/specific damages in the sum of N1, 750, 000 (One Million Seven Hundred and Fifty Thousand Naira) only to be paid to the 1st Defendant by the Claimant being the cost of engaging a Counsel by the 1st Defendant to represent her in this suit.
7. General Damages in the sum of N100, 000, 000 (One Hundred Million Naira) only against the Claimant for the embarrassment, harassment, injury, reputational dent and incidental cost occasioned by the suit and the Claimant’s misconduct while in the employment of the 1st Defendant. 

 

On relief one, the 1^st Defendant/Counterclaimant pleaded that the Claimant filed this suit to simply blackmail her to pay money never owed. Claimant in response pleaded that the investigation conducted was sham and in violation of the Claimant’s right to fair hearing. On this I find and hold, the Claimant filed this suit in the exercise of his right to approach a court in the event or when he perceived that there is a violation of his fundamental right. The 1^st Defendant/Counterclaimant has also failed to establish on the preponderance of evidence that the Claimant’s claims amount to gold-digging. To this end, the 1^st Defendant/Counterclaimant relief succeeds to the extent Claimant/Defendant only approaches this court in the exercise of his right of access to court. I so hold.

 

On relief two, three, and four, by reasons given and the review of the evidence presented before me, it is hereby declared that;

1. The Claimant has no valid cause of action against the 1st Defendant in this suit.
2. The Claimant was lawfully dismissed summarily by the 1st Defendant and the 1^st Defendant’s letter to the Claimant dated 28th November 2023 amounts to summary dismissal. 
3. The Claimant having been summarily dismissed is not entitled to any gratuities or retirement benefits of any kind.

 

On relief five, it is hereby ordered that the suit of the Claimant be and is hereby dismissed in its entirety for lacking in merit.

 

On relief six, the counterclaimant is claiming the sum of ?1, 750, 000. 00 as special damages being the cost of engaging a counsel to defend and prosecute this case. Counsel pleaded a letter to the Managing Director of 1^st Defendant requesting for advance/part payment of his professional fees dated 2/02/2024 and tendered as Exhibit Rahim 9 and also gave evidence to that effect. The principle of law is that a successful party is entitled to be indemnified for costs of litigation which includes charges incurred by the parties in the prosecution of their cases. It is akin to a claim for special damages. Once the solicitor's fee is pleaded the amount is not unreasonable and it is provable, usually by receipts, such a claim can be maintainable in favor of the claimant. In the case of AJIBOLA v. ANISERE & ANOR (2019) LPELR-48204(CA) my noble law lord PATRICIA AJUMA MAHMOUD, JCA (Pp 29 - 30 Paras C - C) held thus:

"Finally, the plaintiff/appellant claimed N2,000,000 as solicitor's fees for the prosecution of this case… It is progressive to note that our law has moved from GUINNESS (NIG) PLC V NWOKE (2000) 15 NWLR, PT 689, 135 when such a claim was said to be unknown to law to the more dynamic posture of our Courts in the more recent cases of LONESTAR DRILLING NIG LTD V NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR - 4437 (CA) and NAUDE & ORS V SIMON (2013) LPELR - 20491 (CA) where such claims are granted if properly pleaded and proved.” 

In the instant case, what the counterclaimant presented is just an invoice and not a receipt evidencing payment of the part payment of the professional fees. I find it difficult to fill the vacuum for the counterclaimant to consider the request as the receipt evidencing payment. This goes to show that counterclaimant fall short of proving this head of claim. Accordingly, relief 6 hereby fails. I so hold.

 

On relief 7 the counterclaimant is claiming for general damages in the sum of ?100, 000, 000. 00. The counterclaimant is claiming for general damages against the defendant for the embarrassment, harassment, injury, reputational dent, and incidental cost. The defendant to the counterclaim however describes the claim as gold digging and abuse. The concept of general damages in legal parlance connotes such damages as the court may award where it cannot point at any measure to assess the loss caused by the wrong complained of except the opinion and judgment of a reasonable man. It is usual in cases such as this case where it was not shown that any loss was suffered as a result of the legal action instituted to award nominal damages. See S.I.H. Ltd. v. NITEL Trustees Ltd. (2015) 16 NWLR (Pt. 1486) 454; Artra Industries (Nig.) Ltd v. N.B.C.I. (1998) 4 NWLR (Pt.546) 357; Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370. Looking at the time frame within which this case was heard and disposed of and the position of the Counterclaimant vis a viz that of the Defendant, I am of the view that it will be inequitable to award any sum in favour of the Counterclaimant simply because the Claimant/Defendant decided to exercise his right to approach this court. Therefore, the claim for general damages fails. This I so hold.

 

On the whole, and for all the reasons given, I find and hold that the Claimant’s case has no merit whatsoever. It fails and is hereby dismissed.

 

On the other hand, the Counterclaimant succeeds with respect to claims Numbers 1, 2, 3, 4, and 5 only. The Counterclaimant fails in respect of reliefs numbers 6 and 7.

 

Judgment is entered accordingly. I make no order as to cost.

 

……………………………………………………………

Hon. Justice Emmanuel Danjuma Subilim.

                                                                               JUDGE