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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP: HON. JUSTICE S. H. DANJIDDA

 

DATE: 7th July, 2026 

SUIT NO: NICN/UY/45/2022

 

BETWEEN:

MISS LUCY IBIBOM     -        -        -        -        -        -        Claimant 

 

AND:

IBOM ICON HOSPITALITY LIMITED     -        -        -        Defendant

 

REPRESENTATION:

Unwana Okon for the Claimant 

Miebi Owonaro for the Defendant 

 

 

JUDGMENT

 

The Claimant filed this suit by a General Form of Complaint and other accompanying processes dated and filed on 22/11/2022, seeking for the following reliefs as set out in her Statement of facts:

 

“1.       A Declaration that the insensitive termination and incongruous dismissal of the Claimant’s appointment by the Defendant is intemperate, vexatious, barbaric, cruel, inglorious, monstrous, grossly inconsistent with equity and good conscience and not in tandem with the terms and conditions contained in the renewal of contract of employment document dated 26th April, 2021, the contract of employment between the Claimant and the Defendant is for employment for a fixed term.

 

2.         A Declaration that the termination of the Claimant's employment by the Defendant before the agreed duration of the contract of employment document dated 26th April, 2021 is a breach of the said contract of employment.

 

3.         A Declaration that the insensitive termination and incongruous dismissal of the Claimant’s appointment/employment by the Defendant, is illegal, unlawful, injurious, oppressive, reprehensible, a volatile infraction and a violent violation of the Claimant's fundamental legal right to human dignity, as enshrined in section 34(1) of the Constitution of the Federal Republic of Nigeria as amended therefore, null and void and of no effect whatsoever. 

 

4.        An Order of Court setting aside the decision of the disciplinary committee for want of hearing as enshrined in section 36 of the Constitution of the Federal Republic of Nigeria as amended. 

 

5.         An Order mandating the Defendant to immediately re-instate the Claimant to her office and former position in its employment with all her entitlements. 

 

6.        An Order mandating the Defendant to pay the Claimant all salaries and financial entitlement due to her from January 2022, at the rate of ?332,550.48 (Three Hundred and Thirty Two Thousand, Five Hundred and Fifty Naira, Forty Eight Kobo) only per month, to the day of her reinstatement and interest therein at the rate of 20% per annum.

 

7.         An Order mandating the Defendant to pay the Claimant the total sum of ?3,390,605.76 (Three Million, Three Hundred and Ninety Thousand, Six Hundred and Five Naira, Seventy Six Kobo) only being the Claimant's annual salary for the year 2022.

 

8.        An Order awarding the sum of ?10,000,000.00 (Ten Million Naira) only, as general damages for the humiliation and the embarrassment suffered by the Claimant as a result of the unjust and indiscreet termination of her employment. 

 

9.        An Order for the payment of ?800,000.00 (Eight Hundred Thousand Naira) only as cost of litigation.”

 

Upon service of the Originating processes, the Defendant via leave of court filed its Statement of defence on 3/3/2023, meanwhile the Claimant via leave of court too, filed her reply to the Statement of defence on 6/7/2023. 

 

FACTS OF THE CASE 

It is the Claimant's case that she worked for the Defendant at Ibom Icon Hotel & Golf Resort, located at Nwaniba Road in Uyo, Akwa Ibom State. That the Defendant is a limited liability company engaged in hospitality and hotel management, with its registered office at Plot 1, Nwaniba Road, Uyo.

 

Claimant further states that the Defendant was previously known as Ibom Icon & Golf Resort but is now called Ibom Hospitality Limited. That through a contract renewal letter dated April 26, 2021, she was employed as a contract staff with a monthly salary of ?332,550.48 (Three Hundred and Thirty-Two Thousand, Five Hundred and Fifty Naira, Forty-Eight Kobo) only. Before her termination, she served as both Purchasing Manager for Local Purchase Orders and Laundry Manager.

 

On December 17, 2021, Claimant received a query accusing her of fraudulent practices related to the purchase of rice for staff in 2020. Specifically, she was alleged to have fraudulently renegotiated with a supplier, Mr. Moses Wester, to supply smaller 20kg bags of rice instead of 25kg bags while maintaining the same price.

 

Claimant responded to the query, denying all allegations. However, on January 4, 2022, she was called before a disciplinary committee, where a phone recording was played that allegedly contained her voice discussing plans to distribute smaller rice quantities to staff. The claimant maintains that the voice was not hers. She asserts that the committee did not allow her to defend herself or give her a fair hearing. Instead, she was instructed to hand over all hotel property in her possession to the Secretary and was told she would be contacted later - but she never heard from the Defendant again.

 

The Claimant argues that at the time of her wrongful dismissal, her employment contract was still subsisting, and she was denied the opportunity to defend herself during the disciplinary process.

 

However, the Defendant's own version of the case is that in December 2021, the Hotel management arranged to buy and distribute rice to staff as Christmas gifts. However, many employees became upset, claiming that in previous years, they had received quantities smaller than what was indicated on the rice bags.

 

To investigate these complaints, the Hotel management spoke with the supplier, who confirmed that, at the Claimant's request, his company had supplied 20kg of rice packaged in bags labeled as 25kg. This conversation with the supplier was recorded on the Hotel's mobile phone.

 

The Defendant maintains that the Claimant was issued a query, which she responded to, and was later summoned before a Disciplinary Committee. During that hearing, the recording of the supplier's conversation was played. According to the Defendant, the Claimant did not dispute that the voice in the recording was hers, nor was she able to offer any defense against the allegations. The Committee subsequently recommended her dismissal, and the Hotel Management accepted that recommendation.

 

 

 

 

TRIAL 

At the trial, Claimant testified as CW1 on the 6th of April, 2024 and adopted her two witness statements on Oath made on 22/12/2022 and 6/7/2023 as her evidence in chief. Exhibits LUC1a-d, LUC2, LUC3a & b, LUC4-j, LUC5, LUC6a-f, LUC7a-d and LUC8 were tendered through CW1 and admitted and marked in evidence as Exhibits. CW1 was cross examined and discharged.

 

Two witnesses testified on behalf of the Defendant as DW1 and DW2. They adopted their witness statements dated 14/5/2024 and 20/3/2023 respectively. Meanwhile Exhibits ICON1a-g, ICON2 and ICON3 were tendered and admitted in evidence through DW1. Defendant's witnesses were cross-examinedand discharged. The matter was then adjourned for adoption of final written addresses.

 

DEFENDANT’S FINAL WRITTEN ADDRESS 

Defendant's Final Written Address was filed on 30/1/2025 wherein counsel to the Defendant formulated three issues for determination to wit;

 

“1.       Is the Claimant’s dismissal effectual?

 

2.         Was the Claimant’s dismissal proper?

 

3.         Is the Claimant entitled to any of her claims in this suit?” 

 

Before addressing the substantive issues, Defendant's counsel began with a preliminary matter contending that the Defendant is not and was never the employer of the Claimant.That Exhibit LUC7 clearly shows that the Claimant's erstwhile employer was Ibom Resorts & Hotels Limited. Counsel cited the cases of Transmission Company of Nigeria P.H.C.N. V. Adamawa State Board of Internal Revenue (2021)1 NWLR (Pt.1757) 207 AT 225; Tasha V. Union Bank of Nigeria Plc (2002) 3 NWLR (PT.753) 99 at 108 paras C-E.

 

Counsel further states that the fact that the Defendant was incorporated to manage the Ibom Hotel does not make it the owner of the Hotel, nor does it make the Claimant its employee. That Ibom Resorts & Hotels Ltd, incidentally was incorporated as far back as 5th March 2002 while the defendant on record was only incorporated as far back as 3rd June 2020. 

 

In addressing the First Issue, counsel argues that while the Claimant denies receiving a formal dismissal letter, she has admitted to being summoned to collect it. Although she declined to sign for it, she did read the document and take a photograph of it. Counsel maintains that her refusal to sign does not negate the fact that the letter was duly issued to her. Consequently, the dismissal took effect upon issuance, and the Claimant was fully aware of its existence and validity.

It was also argued that once the employer has taken the decision to dismiss or terminate an employee and has effectuated it, then the employee’s only relief, if the termination or dismissal was wrongful, lies in damages, except where the employment has statutory flavour. That in the instant case, the employment of the Claimant was of ordinary master-servant specie, and in such case, reinstatement is out place. Counsel cited the case of Ekunola V. Central Bank of Nigeria (2013) 15 NWLR (Pt. 1377) 224 at 269 parasE-F; Osisanya V. Afribank (Nig) Plc (2007) 6 NWLR (Pt. 1031) 565 at 581 paras C-D.

 

On Issue Two, counsel submits that the law is that an employer has a right to dismiss an employee for gross misconduct summarily. Citing Co-operative & Commercial Bank (Nig) Ltd V. Nwankwo (1993) 4 NWLR (Pt. 286) 159 at 172 paras C-D. That in the instant case, the Claimant was not dismissed summarily, but the Hotel still went through a disciplinary process and gave the Claimant a chance to defend herself and present her case.

 

Counsel continues that the Claimant had admitted under cross-examination that she was a senior staff of the Hotel during her employment that she was given a query and faced Disciplinary Committee as stipulated in Exhibit ICON3.

 

Counsel further contends that the law is that parties are bound by their agreements and the courts must treat the terms of such agreements as sacrosanct. Counsel cited the case of BFI Group Corporation V. Bureau of Public Enterprises (2012) 18 NWLR (Pt. 1332) 209 AT 238-239 paras H-B. AK.

 

It was submitted that even when the contract of employment is silent as to termination and dismissal of employees, it still cannot prevent an employer from exercising his right to terminate or summarily dismiss his employee. Citing Ansambe V. Bank of the North Ltd (2005) 8 NWLR (Pt. 928) 650 @ 672 paras C-D.

 

On Issue Three, counsel maintains that the Claimant was properly dismissed. That it goes without saying that she is not entitled to any of her claims in this suit. Counsel reiterates that for an employment not backed with statutory flavour, the only remedy available to a Claimant for wrongful termination or dismissal is damages and not reinstatement. Counsel cited the case of Olarewaju V. Afribank Nig. Plc (2001)13 NWLR Pt. 731) 691 @ 705 paras D-E.

 

Furthermore, counsel submits that the Claimant was dismissed for gross misconduct and that the position of the law is that a dismissed employee is not entitled to any benefits. Counsel cited the case of Olatunbosun V. Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR (Pt.80) 25 at 50, para G.

 

That the Claimant is not entitled to the claim for general damages since her dismissal was proper. Citing Ansambe V. Bank of the North Ltd (supra).

 

In conclusion, counsel urged the Court to dismiss the Claimant's suit with substantial cost. 

 

CLAIMANT'S WRITTEN ADDRESS 

Claimant's final written address was filed on 7/5/2025 wherein counsel for the Claimant formulated three issues for determination to wit;

 

“1.       Whether the Claimant was the staff of the Defendant. 

 

2.         Whether the Claimant has been wrongfully dismissed having regards to the evidence before this Honourable Court. 

 

3.         Whether the Defendant is not liable to the claims of the Claimant in this suit.”

 

In arguing Issue One, counsel to the Claimant submits that the protest of the Defendant denying her name should be overruled, that the Defendant entered unqualified and unconditional appearance, thereby unreservedly submitting to the jurisdiction of this Honourable Court as sued. That if the Defendant had wished to object to the jurisdiction of the court, she ought to have entered a conditional appearance or appearance under protest indicative of her intention or objection to the jurisdiction of Court. Counsel cited the cases of Enterprise Bank limited V. Deaconess Florence Bose Aroso (2014) 3 NWLR Pt. 1394) 256 @ 295 paras F-H.; Compagne General De Geophysique (Nig.) Ltd  V. John C. Eronini (2019) 14 NWLR Pt. 1692) 219 AT p. 232 paras C-D.

 

Counsel continues that, assuming that the Defendant's name on record contains an error, such error amounts to no more than a mere misnomer, in as much as the Defendant is indisputably the Claimant's employer. Accordingly, the claimant having instituted proceedings against the Defendant in an incorrect name does not constitute a fundamental defect, nor is it so prejudicial as to vitiate the claim or warrant the striking out of the suit. Counsel cited the case of Obasi V. Molson Eat. Ind. Ltd (2016) 16 NWLR PT. 1539) 335 @ p. 385, paras D-G.

 

Counsel submits that parties are in agreement, based on their pleadings, that the Claimant was an employee of the Defendant. This is further supported by the Defendant's own cross-examination of the Claimant regarding the services she rendered.

 

That the Defendant has neither appeared in Court to deny the employment relationship nor argued that it is not the proper party to the suit. Having presented itself before the Court in the capacity of the employer who allegedly dismissed the Claimant under the circumstances she described, the Defendant cannot now rely on a change in its preferred name to defeat the claim. Any such argument is immaterial to the substantive issues, as the Court should be guided by the principles of substantial justice. Citing Idanre Local Government Area V. Deji of Akure Land (2025) 4 NWLR PT. 1982) 213 @ pp.247-248 paras H-A.

 

Counsel reiterates that the identity of the Defendant is known to both parties in this action, and the Defendant was not misled and it knew exactly what she has been sued for by the Claimant and produced witnesses and documents in defence of herself against the Claim of the Claimant. 

 

On Issue Two, counsel contends that the   Claimant clearly testified that during the disciplinary hearing, a voice note was played to her, accusing her of owning the alleged voice in the recording, without having her own up to the voice note or giving any evidence in rebuttal of the said allegation in her defence. That the Claimant was asked to leave the room where the disciplinary hearing was going on.

 

Counsel submits that the report of the Disciplinary Committee dated 12/1/2022 confirms the entire body of the proceedings of the said disciplinary report in respect of the Claimant. That beyond the collation of statements allegedly taken from the diverse person, there is nothing to show the Claimant being confronted with any accuser.

 

Counsel continues that rule of fair hearing as enshrined in the Nigerian constitution as provided for in section 36(1) is so undeniably fundamental to every citizen of Nigeria in a plethora of cases. That the courts have upheld its applicability not only in Courts but also in domestic or administrative tribunals and committees. Counsel cited the cases of Skye Bank Plc V. Adedokun Olusegun Adegun (2024) 15 NWLR PT. 1960 at pp. 36-37; National Electric Power Authority V. Joseph Ango (2001) 15 NWLR Pt. 737) 627 @ p.654 paras A-C.

 

It is counsel's further contention that the testimonies of DW1 and DW2 on what they were allegedly informed by Mr Moses and Mr Nwaji, the rice suppliers that the Claimant renegotiated for a lesser quantity of rice instead of the 25kg in the LPOs are hearsay. That no explanation whatsoever was given why they, who purportedly saw or heard were not called as witnesses before the honourable Court. Counsel cited the cases of Zenith Bank Plc & Anor V. Chief Dennis Ekereuwem & Anor (2012) 4 NWLR PT. 1290) 207 AT pp. 232-233, paras G-C; Okolo V. FRN (2018) LPELR 45431 (CA) at pp. 12-13 paras A-E. That hearsay evidence is not admissible to prove a fact or matter.

 

Counsel submits that the Defendant conducted interview with the said Mr.Wester and Mr. Nwaji and subsequently with Mr Akwaowo Bassey without measuring the bags of rice in question in the presence of the Claimant to determine the veracity or otherwise of the allegations made against the Claimant, the alleged sample measuring of a few bags by DW2 behind the back of the Claimant notwithstanding, and Mr Wester and Mr Nwaji were not made to be confronted by the Claimant either at the disciplinary committee or this Honourable Court.

 

That in furtherance of withholding from this Honourable Court material evidence, the Defendant made allegations of availability of the voice record alleged to contain the voice of the Claimant renegotiating for a lesser quantity of rice and the voice recordings of the Defendant’s interview with the suppliers of the rice in dispute but ended up withholding from the Court as they were not tendered throughout the trial. Counsel referred to the case of Hani Akar Enterprises Ltd V. Indo Nigeria Merchant Bank Ltd. (2011) 1 NWLR (Pt. 1228) 302 at p.329 para A. 

 

Counsel continues that in any event, the disciplinary committee of the Defendant is not such a competent body with jurisdiction to consider and adjudge the alleged culpability of the Claimant in the heinous allegation of fraud against her.That the courts have held in a plethora of cases of employment, that allegations of crime can only be taken and heard by a competent Court of Law, and not a private panel. Counsel cited the cases of Central Bank of Nigeria V. Uchenna Godswill Dinneh (2021) 15 NWLR (Pt. 1798) 91 at p. 128 paras B-D; Federal University of Technology Yola V. Nkire (2014) LPELR-24202 (CA) at pp.39-46.

 

On Issue Three, counsel argued that contrary to the position of the Defendant, this Honourable Court is vested with the power to grant declaratory reliefs, where the Claimant has proved his case. Citing Alechenu Ad'obe Obe V. MAN Nigeria Communications Ltd (2021) 18 NWLR (PT. 1809) 415 AT 447 paras A-F. That the Claimant is entitled to the declaratory reliefs as the Claimant has proved before this Court that she was wrongfully dismissed by the Defendant and did not commit any fraud to attract the summary dismissal.

 

Counsel concludes that the Claimant is entitled to all the reliefs sought, and urged the court to set aside the decision of the disciplinary committee and resolve the issues raised in favour of the Claimant.

 

DEFENDANT’S REPLY ON POINTS OF LAW

Defendant filed it's reply on points of law on 24/11/2025 in reaction to the Claimant's Final Written. On the issue that the Defendant has voluntarily submitted to the jurisdiction of this Court and cannot raise the issue of jurisdiction at this time. Counsel submits that the law is that jurisdiction being a threshold issue can be raised at any stage of the proceeding and by any mode or means.That it can even be raised before the Supreme Court for the first time, and without leave. Counsel cited the case of Aje Printing Nig. Ltd V. Ekiti Local Government Area (2021) 13 NWLR (Pt. 1794) 498 AT 541-542 paras H-A.

 

On the issue of misnomer, Counsel however submits that, there are two different companies in the instant case and the Claimant has elected to sue the one that has never been her employer. As such the Claimant sued a wrong party, thereby robbing this court of jurisdiction to entertain it.

 

Again, it is not the law that the correctness of the decision reached by the disciplinary committee is to be demonstrated or justified before this court. This Court does not also sit on appeal from the decision of the disciplinary committee. The Defendant is only obliged to show that it followed its own rules in dealing with the matter, and it has clearly done so.

 

In conclusion, counsel reiterates that this suit is not properly constituted, the Claimant having brought the wrong Defendant to Court. That without prejudice to that submission, counsel further submits that Claimant was properly dismissed and and such is not entitled to any of her claims in this suit.

 

DECISION OF THE COURT 

I have studied the pleadings of the parties and the evidence adduced. I have also read the submissions of the learned counsel for the parties and the issue for determination I will address is; Whether the Claimant is entitled to the reliefs sought?

 

On the preliminary level, the Defendant seems to heavily contend that there is no contractual relationship between her and the Claimant that the Claimant was hired by Ibom Icon Hotel & Golf Resorts by Exhibits LUC1a-d and has no employment relationship with the Claimant. However, the Claimant claims that the Defendant is indisputably her employer.

 

The Court of Appeal in Coast Oil V. Tuboscope Vetco International & Anor (2019) LPELR-46450 (CA) reaffirmed the principle of privity of contract, which states that, only parties to a contract can enforce its terms or be bound by its obligations. A non-party (stranger) cannot claim rights or liabilities under such a contract. This doctrine is well-established in our law as seen in Vital Inv. V. CAP Plc (2022) 4 NWLR ( Pt. 1820) 205. However, exceptions exist, including covenants concerning land, agency relationships, and assignment. See Mbata V. Amanze (2018) 15 NWLR Pt. 1643) 570.

 

This Court under Section 254C(1) (f) (h) and (2) of the 1999 Constitution, is empowered to apply international conventions and best practices in labour disputes.This aligns with the International Labour Organisations (ILO) stance on adapting labour standards to evolving workplace dynamics, particularly where employers use subcontracting or outsourcing to circumvent labour protections.

 

Even before the Third Alteration Act, Nigerian Courts recognised exceptions to privity in employment contexts. In Onumalobi V. NNPC & Warri Refining and Petrochemical Co. (2004) 1 NLLR (Pt. 2) 304, the Court of Appeal upheld the concept of co-employers status, rejecting strict privity rule where a parent and subsidiary company jointly controlled an employee. This was reinforced by Shena Security Co. Ltd V. Afropak Nig. Ltd & Ors (2008) LPELR-3052 (SC).

 

The ILO Convention on Private Employment Agencies (No. 181 of 1997), formally acknowledges the three-way relationship among recruitment agencies, workers, and host employers, while its accompanying Recommendation (R188) further underpins the value of tripartite collaboration in labour regulation.

 

Section 91 of the Labour Act anticipates such arrangements by defining an employer broadly to include those who engage workers for their own service or another's. This statutory recognition validates co-employment, though its existence depends on factual circumstances. See Diamond Bank Plc V. Nubifie & Ors (unreported, SUIT NO. NICN/ABJ/130/2013; Stephen Anyaogu V. Mobil Producing Unlimited & Anor (unreported SUIT NO. NICN/LA/38/2010; and English cases like James V. London Borough of Greenwich and Cable & Wireless V. Muscat (2006) IRLR 355 (CA) have similarly emphasised factual over formal relationships.

 

It is evident that the Claimant's Contract renewal letter in the instant case was issued on the 26th April, 2021 with the Letter head of Ibom Icon Hotel & Golf Resort. Meanwhile Paragragh 3A of Exhibit LUC6a-f which is the Memorandum of Association of the Defendant states as follows:

 

“3.       The objects for which the company is established are:

 

A.        To manage and operate The Ibom Icon Hotel & Golf Resorts (“The Hotel”) located in Uyo, Akwa Ibom State including Restaurants, Cafe, Bakeries, Holiday Camps, Resorts Centres, Caravan Sites, Motels and Other Hospitality facilities owned by the Hotel”

 

It is clear from Exhibit LUC6a-f that Ibom Icon Hotel & Golf Resorts is subject to the management and control of the Defendant. In other words, it is the Defendant that manages and operates Ibom Icon Hotel & Golf Resorts.

 

The above facts present an appropriate scenario where the Court will adopt the principle of primacy of facts as against the principle of privity of contract. It is now settled that in determining the nature of relationship between parties in employment dispute that presents this type of relationship, this court is to apply the primacy of facts which simply implies that it is the facts that determine whether a person is in a contract of employment or not and not only the presentation of a contract document. Thus the practice of triangular employment and co-employers status had been welcomed and adopted by this Court in deserving cases to find for an employee. See Pengassan V. Mobil Producing Unlimited, in Suit. No. NICN/LA/38/2010, Judgment delivered on 21st of March, 2012 per B. B. Kanyip (then) and Obaseki, J. J. 

 

Accordingly, where a company is deeply integrated into and controlled by another, the Court will recognize co-employment relationship and hold both companies accountable for employment obligations. Here, Ibom Icon Hotel & Golf Resorts serves only as a vehicle for the Defendant, since it is the Defendant that exercises all employer functions and duties in relation to the Claimant.

 

Accordingly, I am of the opinion that both the Defendant and Ibom Icon Hotel & Golf Resorts are co-employers of the Claimant, and I so hold. I therefore over rule the objection of the Defendant that she is not the employer of the Claimant. 

 

Having found that the Defendant is the Claimant's co-employer with Ibom Icon Hotel & Golf Resorts, was the disciplinary action carried out in line with the terms of parties' contract.

 

It is trite that the burden and standard of proof in civil cases is on the party who asserts to prove his case on the balance of probability and preponderance of evidence. See Sections 131 to 134 of the Evidence Act  and the cases of Amos V. Photo Palace Ltd. (2014) All FWLR PT. 744) 166 paras D-E and UBA Plc V. Samba Petroleum Co. Ltd (2003) FWLR (Pt. 137) 1199 at 1205 paras B-C.

 

The principle of law as well established in Nigerian jurisprudence is that to succeed in a claim for wrongful termination or dismissal, the Claimant bears the burden of proof to establish by credible evidence the terms and conditions of contract of employment and must demonstrate how the Defendant breached those terms and conditions. See Nitel Plc V. Akwa (2006) 2 NWLR Pt. 964) 391 at 532 paras C-E.

 

By placing the onus on the Claimant to prove his case, the Court ensures that the Claimant provides sufficient evidence to support his allegation of wrongful termination or dismissal.

 

It must be clearly stated that an employer possesses inherent authority to discipline an employee in accordance with the employment contract when the employee's conduct amounts to misconduct. However, where that misconduct also constitutes a crime, the employer cannot impose punishment in the manner of a court of law. In Zenabor V. Bayero University Kano (2009) 17 NWLR (Pt. 1169) 96, the Court held that the general rule - which is subject to exceptions - is that where dismissal is predicated on a criminal allegation, that allegation must first be proven before the dismissal can be upheld. Nevertheless, the exception to this rule is that it is not mandatory in every case for the employee to be arraigned before a Court before disciplinary measures are taken. Once the offence committed falls within the employer's domestic jurisdiction, disciplinary action may proceed without recourse to criminal prosecution. Under Article 8 of the Defendant's Senior Staff Conditions of Service (Exhibit ICON3), corruption and dishonesty, among others, constitute misconduct falling within the Defendant's Disciplinary Purview. See Uzoho V. Task Force on Hospital Management (2004) 5 NWLR (pt. 867), Arinze V. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78, and Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457) 632 SC. See also the unreported cases of Folami V. Union Bank of Nigeria, Stephen Izonebi V. Federal Civil Service Commission, Suit No. NICN/ABJ/240/2013 delivered on 11th February 2013, and Samson Kehinde Akindoyin V. Union Bank of Nigeria Plc., Suit No. NICN/LA/308/2013 delivered on April 15th 2015.

 

In Arinze V. First Bank of Nigeria Ltd. (2000) NWLR (pt. 639) 78 at 97-98, the Supreme Court held that in both statutory and private employment, an employer may dismiss an employee for gross misconduct bordering on crime, and it is not a prerequisite that the employee be first tried in a court of law. The Court further held that in such cases, all that is required of the employer before effecting summary dismissal is to afford the employee a fair hearing by confronting him with the allegations and giving him an opportunity to defend himself.

 

In view of the foregoing appellate court decisions, it is incontrovertible that the Defendant in this case need not await the Claimant's trial and conviction by a court before commencing disciplinary proceedings on the allegations against her. Consequently, the Claimant's contention that the Defendant cannot discipline her for fraudulent practices is rejected and is hereby dismissed.

 

On the issue of fair hearing, the Supreme Court in the case of Skye Bank Plc V. Adedokun Olusegun Adegun (2024) LPELR 62219 (SC), has laid down the requirements of fair hearing in the dismissal of an employee when it held that:

 

“Despite the fact that an employer has a right to dismiss an employee, the dismissal should not be wrongful. The motor questions which the Court will consider in determining whether a dismissal is proper or wrongful will be,  a) was the dismissal carried out in line with the procedure laid down in the Employees Handbook or any document governing the employment relationship,  b) was the issuer of the letter of dismissal competent to do so? Or was the dismissal process carried out by a competent authority. Was the employee afforded fair hearing during the dismissal process. The employer has the duty to ensure that it does not enigmatically raise 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. It has been held that employers and public bodies are required by law at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances, the law does 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 entitling the employee to damages. Having said that the employer has the duty to ensure that the internal inquiry process (or investigative panel hearing process) which was set up to hear and determine the allegations against an employee and based on which the employee was recommended for dismissal was done within the dictates of the law. The dictates of the law as regards fair hearing is predicated on two main points. Simply put they are that, the employee must be given an opportunity to respond to the allegations against him/her and must have the opportunity to face his/her accusers. Where these have not been observed, it cannot be said that the employee was afforded fair hearing before dismissal therefore rendering the dismissal wrongful. It should also be pointed out that an employee can be given an opportunity to present a case in defence of the allegations against him/her orally or in writing”.

 

In Aminetu Omolola Salami V. Union Bank On Nig. Plc (2010) LPELR-8975(CA), it was held that though the law requires employers to give a fair hearing before dismissing someone for gross misconduct. However, that hearing does not need not attain the standard or form obtainable in a court before it can be said to be fair. It just needs to be genuinely fair.

 

It needs to be emphasised that the importance of fairness and due process in disciplinary hearings and the key points that need to be highlighted are; that the employee must be informed of the nature of the charge against him to prepare for his defence; the employee should be given the opportunity to state his case, regardless of the circumstances and while the employee's physical presence throughout the hearing is not mandatory, he must still be given a fair chance to present his case. See the case of Ntewo V. UCTH (2013) LPELR 20332(CA).

 

It is clearly seen and conceded from the evidence of the parties before the court and the exhibits presented that the Claimant was issued a query which he answered. See Exhibits LUC2 and LUC3 a & b.

Similarly, it was stated by the Claimant under cross-examination as follows:

 

“I was invited by a Disciplinary Committee where they played a voice recorder which I don’t know anything about.

 

“After I was heard by the committee, I was asked to step out and the Secretary to the Human Resources and one security personnel came and asked me to surrender my ID card and official phone”.

 

DW2 also said under cross-examination as follows:-

 

“Goods received by the Defendant are being received through LPO. 

 

When we received the goods, we had the LPO. 

 

The LPO we received from the Claimant was for 25kg of rice. 

 

I was not told by the supplier that the Claimant negotiated for 20kg of rice instead of 25kg but I confirmed it myself because I weighed some bags and saw that, it was 20kg. I then told the supplier that I would not receive the rice because it was not 25kg, but the supplier told me that, that was his agreement with the Claimant. 

 

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It was not the Claimant who entered the supply of 20kg of rice instead of 20kg of rice. 

 

The Claimant asked me to enter the rice as 25kg instead of 20kg but I refused. And by the end of the month, I was asked to submit my report into the system, but I still refused because I only received 20kg but not 20kg.

 

The cost controller (Uduakobong) entered the rice into the system as 25kg and insisted that I should sign, but as my Boss, I signed with a reason that I only saw 20kg.”

 

According to the Disciplinary Committee report (Exhibits ICON1a-g), DW1 testified that upon being informed of staff Rice’s arrival, he noticed the 25kg bags appeared underfilled. He then carried two bags to the receiving scale, where they weighed 20kg each - not the 25kg stated on the LPO. That he declined to accept the delivery and reported the issue to the Claimant and others. Although the Claimant was made aware of the discrepancy, she directed DW1 to store the 20kg rice anyway. DW1 refused, however, and did not enter the items into the computer system.

 

The Disciplinary Committee also found that, despite the Claimant's denial of being informed by DW1 about the quantity shortfalls, witness statements confirmed she was fully aware of the discrepancies. Additionally, the Committee established that the Claimant served as the primary contact for negotiating the 2020 staff rice supply. And when the audio recordings were played during the proceedings, they revealed her active participation in the renegotiation process - yet she failed to provide a credible defense against the allegations.

 

It is clear from the query given to the Claimant (Exhibit LUC2), her answer given in Exhibit LUC3, and the Report of the Disciplinary Committee (Exhibit ICON a-g), that the Claimant was given a hearing and was confronted with the allegations raised against her.

 

It is clear also from the testimony of DW1 and the Committee's report that the Claimant was rightly found to have committed infraction that led to her dismissal. The evidence of DW1 before this Court and at the Committee's proceedings is very compelling against the Claimant. The evidence of the Claimant that she is not aware of the discrepancy of the bags of the rice is quite telling.

 

The law is that where an employer dismissed or terminated the appointment of an employee on grounds of infraction, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any. See UNICAL V. Essien (1996) 10 NWLR Pt. 477 page 225; Udoh V. CSC Akwa Ibom State (2013) LPELR 21849(CA).

 

It was held in Joseph V. First Inland Bank Nig. Plc (2009) LPELR-885 that an employee who was confronted with allegation of misconduct before his employment was terminated cannot complain about lack of fair hearing. See also Udoh V. CSC Akwa Ibom State (supra).

 

On whether the dismissal of the Claimant was effective. In WAEC V. Oshionebo (2006) 12 NWLR PT 994) 258 CA, it was held that a Notice of Resignation is effective not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent.

 

In Taduggoronno V. Gotom (2002) 4 NWLR (PT. 757) 453 CA, the Court specifically held that t is not open to the employer for whatsoever reason to refuse to accept the resignation of the employee, for the employee has an absolute power to resign and the employer has no discretion to refuse to accept the resignation.

 

It can be deduced from the above that the Claimant's refusal to accept her dismissal letter does not invalidate it. The termination took effect once she either received the letter or became aware of its contents, regardless of her refusal. I so find and hold.

 

It is a settled principle of law that where a party seeks declaratory reliefs as in the instant case, he must succeed on the strength of his own case and not on the weakness of the defence, if any. In essence, a declaratory relief must be proved to the satisfaction of the Court notwithstanding the default of defence or any admission in the Defendant’s pleadings. As stated earlier, the onus therefore is on the Claimant to establish her case on the preponderance of evidence. See Olayiwola V. Minister, FCT & Ors (2021) LPELR-53044 (CA); Glo V. Fatmax Global Ventures Ltd (2020) LPELR-50500 (CA).

 

In the light of the above therefore, I dismiss the contention of the Claimant that her dismissal by the Defendant is wrongful for lack of fair hearing. I see nothing wrong in the act of the Defendant dismissing the Claimant on account of the Claimant's misconduct.

 

All said, I am of the opinion that the Claimant has not been able to prove her case.The case ought to fail and it is accordingly dismissed.

 

Judgment is entered accordingly with no order as to cost. 

 

 

 

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HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)