IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP: HON. JUSTICE J. D. PETERS

 

DATE: 27^TH APRIL 2023                                        SUIT NO. NICN/IB/28/2021

 

BETWEEN:                                                                                      

Mr. Olalekan Babatunde Oloyede            …         …            …                  …         Claimant

 

AND

Ibadan Electricity Distribution Company Plc   ..          …         …         …         Defendant

REPRESENTATION

I. E. Ogunwale with Daniel O. Ola & Emmanuel Aluko for the Claimant

A. M. Pade-Aderibigbe with Ademola Jasanya for the Defendant

 

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant filed his General Form of Complaint along with Statement of Facts, written statement on oath, list of witnesses, verifying affidavit as well as list and copies of the documents to rely on at trial on 30/3/21. He sought the following reliefs against the Defendant –

 

1.         A declaration that the termination of the Claimant’s employment with the Defendant by letter dated 9/2/21 is ostensibly based on trumped up allegation of misconduct not established on the evidence and not in compliance with the provisions of the Defendant’s Conditions of Service is unlawful, null and void with no effect.

2.         Declaration that the failure of the Defendant’s Disciplinary Panel to promptly inform the Claimant of the outcomes of the investigations and consequences amounts to denial of Claimant’s right to fair hearing contrary to section 36 of the Constitution of Nigeria, 1999 as amended and contrary to Clause 5.4.9 of the Defendant’s Conditions of Service.

3.         An Order of this Honourable Court mandating the Defendant to pay the Claimant’s Monthly Net Salary of Three Hundred and Eighty Three Thousand, Sixty Naira Four Kobo (=N=383,062.04) commencing from March 2021 till his termination is properly done in accordance with the Defendant’s condition of service.

4.         An Order of this Honourable Court mandating the Defendant to remit the National Housing Fund contribution deductible from the Claimant’s Monthly salary commencing from March 2021 till his termination is properly done in accordance with the Defendant’s condition of service.

5.         An Order of this Honourable Court mandating the Defendant to remit Taxes deductible from the Claimant’s salary in accordance with prevalent provisions of the Personal Income Tax Act commencing from March 2021 till his termination is properly done in accordance with the Defendant’s conditions of service.

6.         An Order of this Honourable Court mandating the Defendant to remit the Claimant’s Pension Funds in accordance with the prevalent provisions of the Nigerian Pension Reform Act commencing from March 2021 till his termination is properly done in accordance with the Defendant’s conditions of service.

7.         An Order for general damages in the sum of Twenty-Five Million Naira (=N=25,000,000.00) against the Defendant for wrongful termination of the Claimant’s employment by the Defendant coupled with victimization and deprivation of fair hearing and unfounded claims of breach of trust by the Defendant, detrimental to the Claimant’s career as an Information Security Analyst.

8.         An Order awarding the sum of Nine Hundred Thousand Naira (=N=900,000.00) only to the Claimant against the Defendant being the financial cost incurred by the Claimant in engaging legal services to prosecute this case.

 

2.         The Defendant entered an appearance to this suit on 2/9/21. It filed its statement of defence together with its witness deposition, list of witness as well as list and copies of documents to rely on at the hearing of the suit. The Claimant filed a Reply to the Statement of Defence on 9/11/21.

 

2.         Case of the Claimant

3.         On 9/2/22 the Claimant opened his case and testified as CW1. Claimant adopted his witness depositions of 30/3/21 and 9/11/21 and tendered 13 documents as exhibits. The documents were so admitted in evidence and marked as Exh. BO1 – Exh. BO13 respectively.

 

4.         The case of the Claimant in brief is that he was employed by the Defendant and his employment confirmed; that due to his exceptional performance he was promoted and his salary increased; that surprisingly his new Line Manager one Mr. Martins Uwoghiren the Chief Information Officer began to raise trumped allegations against him for just no cause; that he was queried for allegedly having unapproved software installed on the Defendant’s official laptop but that the termination of his employment was in respect of breach of trust obligation allegedly expected from him by the Defendant which the Defendant alleged is in compliance with international convention though not in the Defendant’s Handbook; that at the Disciplinary Committee set up by the Defendant he was not permitted to confront the witnesses whose testimonies were purportedly relied on and neither was he permitted to cross examine them with the purpose of refuting their allegations; that his employment was eventually terminated on 9/2/21 and that the Defendant did not comply with its Conditions of Service in terminating his employment.

 

5.         Under cross examination on 4/7/22 the Claimant testified that he copied all movies on his laptop inadvertently; that they were not copied for personal development but for English language development; that he copied legitimate transfer from his personal laptop to the IBEDC official laptop; that while copying official documents some personal documents were inadvertently copied into the official laptop; that when he realized the error, he started deleting his personal files from the IBEDC official laptop; that the duration of the incident and when he appeared before the Panel was not up to one year. Claimant added that he used to conduct trainings for staff of the Defendant on how to protect their files; that he had listened to the recordings of the Disciplinary Panel; that while he was with the Defendant he was doing volunteering work for some external organizations pro bono; that Mr. Olalekan Osoba his Line Manager gave him verbal authority to resort to the use of Oracle VM for the monitoring of the Defendant’s internal security system vulnerability; that he is not aware that there was salary increase carried out by the Defendant for its staff generally in 2020; that Oracle VM is a licensed and authorized software. According to the Claimant he was invited to the Committee for possessing movies on Oracle VM and he explained to the Committee; that he is familiar with the conditions of service of the Defendant; that he has not heard of International Best Practices before; that he used Oracle VM in his official laptop; that he worked for the Defendant for a period of 2 years and that he knows he has right to appeal the finding of the Committee to the Managing Director of the Defendant.

 

3.         Case of the Defendant

6.         The Defendant opened its case on 19/10/22. Its lone witness adopted his witness statement of 2/9/21 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence and marked as Exh. JE1 – Exh. JE5.

 

7.         The case of the Defendant, in brief, as revealed from the pleadings and evidence led is that the Claimant was found to have committed a misconduct consequent upon which he faced a Disciplinary Panel; that there was a Report/Audio Recording of the Panel; that the crux of the hearing of the Disciplinary Panel was the presence of a software called Oracle VM on the official laptop of the Claimant which is against the policy of the Defendant vis-à-vis the sensitive position of the Claimant as an Information Security Officer in the Defendant; that after the Panel hearing in which the Claimant was involved, the Panel recommended to the Management that the Claimant’s employment should be terminated for breach of trust and confidence; that by letter dated 9/2/21 the employment of the Claimant was terminated and that the Claimant was paid one-month salary in lieu of one month notice.

 

8.         Under cross examination the witness stated that no employee of the Defendant is to install or use software on official laptop without approval; that it is wrong to say that at the Defendant no one has the responsibility to install or approve installation of software on official laptops; that it is wrong to say that anybody in IT Support or above the level of Principal Manager can install or approve installation of software on official laptops; that it is the responsibility of the Chief Information Officer to approve installation of software on official laptops; that officers in the IT Support have the responsibility for installation of software on official laptops; that to the best of his knowledge an uninstalled software can be used on a laptop; that he has usable knowledge of IT; that the software he referred to in paragraph 10(i) of his oath is Oracle VM.

 

8.         According to the witness, the Claimant was not a service management employee when his employment was terminated; that he was a member of the Disciplinary Panel set up for the Claimant; that he is aware that the Claimant told the Panel that his Line Manager one Mr. Lekan Osoba gave him permission to use Oracle VM software to execute official assignment on his personal laptop; that Mr. Lekan Osoba was not called to the Panel; that somebody operated Oracle VM on the Claimant’s laptop during the Panel sitting; that the Claimant operated Oracle VM on his official laptop at the Panel sitting; that the Panel asked the Claimant to show how the Oracle VM works; that Mr. Martins the CIO was invited to the Panel sitting; that the Committee found in its report that the Claimant had pirated Microsoft Office 2016 on his official laptop; that this information is from the Reply to Query issued to the Claimant that he has a pirated software on his official laptop; that the Claimant had used Defendant’s information without approval in the past; that the Claimant connived with some people based on his privileged access to information to vend from the Company’s system and divert company’s revenue to himself; that the Claimant was not queried on this allegation and that it was not the basis for the termination of his employment.   

 

4.         Final Written Addresses

9.         At the close of trial and pursuant to the direction of the Court, the parties filed their final written addresses in accordance with the Rules of Court.

 

10.       The 21-page final written address of the Claimant was filed on 8/12/22. In it, the Claimant set down 3 issues for determination as follows –

 

1.         Whether in the circumstances of this case, the Claimant was denied fair hearing by the Ad-hoc Disciplinary Committee and the Committee’s proceedings of 5^th November, 2020 against the Claimant is a nullity.

2.         Whether in the circumstances of this case and evidence led, the Claimant’s employment was wrongfully terminated by the Defendant.

3.         Whether in the circumstances of this case, the Claimant is entitled to be granted the reliefs sought.

 

11.       On issue 1 learned Counsel submitted that the Claimant was denied fair hearing by the Ad-hoc Disciplinary Committee set up by the Defendant to investigate the Claimant; that the Claimant was not called to be present when his accuser, Mr. Martin Uwoghren, was giving evidence at the proceedings before the Committee to avail him the opportunity to cross examine the accuser; that the Claimant was not eventually availed an opportunity to cross examine his accuser and that the Committee failed to invite Mr. Lekan Osoba to confirm or refute the clam of the Claimant that the said Mr. Lekan Osoba granted him permission to make use of the software to carry out official duties. Counsel submitted that all these constitute a breach of fair hearing principles against the Claimant citing Ukachukwu v. PDP & 3Ors (2014) SC 589/13, Onah v. Okom (2012)8 NWLR (Pt. 1301) 169 at 189 & U.C.H.B.M v. Morakinyo (2014)16 NWLR (Pt. 1434) 589 at 619-620. Accordingly, learned Counsel urged the Court to resolve this issue in favor of the Claimant and make consequential order that the ensuing termination of Claimant’s employment is void and one cannot place something on nothing citing MacFoy v. UAC (1962)A.C 152 & Oketade v. Adewunmi (2010)8 NWLR (Pt. 1195) 63 at 74 – 75.

 

12.       On issue 2, learned Counsel submitted that apart from the fact that the Claimant was denied fair hearing, the failure of the Committee to adhere strickly with the provisions of the Defendant’s extant Condition of Service (Exh. BO9) in disciplining the Claimant for the alleged offence further makes the termination wrongful; that the allegations against the Claimant as contained in Exh. BO7 are  not contained in the Conditions of Service of the Defendant to which the Claimant subscribed; that the Committee could not have conclusively found that the Claimant was using the software allegedly found on the official laptop in contravention of the conditions of service of the Defendant; that the Committee failed to invite Mr. Lekan Osoba whom the Claimant claimed gave him permission to be using Oracle VM on his laptop for official duties; that there is no penalty or punishment in the Defendant’s condition of service for the installation of and usage of software on Company’s system without approval and that the penalty meted out by the Committee in this regards was concocted, fabricated and not contemplated by the Conditions of Service; that the query issued to the Claimant, the Report of the Committee and the letter terminating the employment of the Claimant all contained different offences from the one averred by the Defendant at paragraph 28 of its statement of defence and stated at ITEM D (2) of paragraph 5.3 of the Defendant’s Conditions of Service being Unauthorized use of Company Information. Learned Counsel submitted that breach of trust and confidence was neither an offence within the Conditions of Service of the Defendant nor the phrase international best practice also in the same and that international best practices do not apply to modify the rights of parties conferred by their voluntary agreement citing Adeokin Records v. MSCN (Ltd Gte) (2018)15 NWLR (Pt. 1643) 550 at 568. Counsel prayed the Court to resolve this issue in favor of the Claimant.

 

13.       With respect to issue 3, learned Counsel submitted that by the circumstances of this case the Claimant is entitled to the reliefs sought. Counsel accordingly prayed the Court to grant same in the interest of justice.

 

14.       The Defendant filed a 25-page final written address dated 9/12/22 on 13/12/22. Counsel set down a lone issue for determination thus –

 

            Whether the employment of the Claimant was properly terminated

 

15.       In arguing this issue, learned Counsel submitted that the misconduct of the Claimant is being an Information Security Officer having and using unapproved software on the Company’s laptop (Oracle VM) opened the Defendant to enormous risk as well as leaving room for the Claimant to make financial gains for himself through the privileged information he had at his disposal and to the economic detriment of the Defendant. Counsel submitted that upon discovery of the use of unauthorized software by the Claimant, Claimant was issued queries and a disciplinary committee looked into the replies of the Claimant; that in Exh. JE3 the Claimant admitted that he did not have authority to transfer personal files to IBEDC laptop; that he had unapproved software on his official laptop and that he was given necessary opportunity before the Panel to explain himself; that the law remains that an employer can disengage an employee at any time when the employer feels that the employee’s services are no longer required save for employments with statutory flavor; that an employee seeking declaration that his employment was wrongfully determined must prove that he is an employee of the Defendant, the terms and conditions of his employment and the way and manner and by whom his employment could be determined citing Nigerian Gas Co. Limited v. Dudusola (2005) LPELR-5958(CA).

16.       Counsel submitted that by the terms and conditions binding the parties, the way and manner the Defendant could terminate the employment of the Claimant is by giving the Claimant the required notice or payment in lieu of same; that what would constitute wrongful termination in the circumstances is if the Notice given or payment in lieu is inadequate but that that is not the contention of the Claimant in this case; the moment the Defendant paid a month salary in lieu of notice that automatically brought the relationship to an end and exculpated the Defendant from any liability citing Dudusola’s case and that the Claimant has not denied that he was paid and he collected a month salary in lieu of notice of termination. According to the learned Counsel, even if the termination were to be wrongful the fact remains that the Defendant having lost trust and confidence in the Claimant is not bound to continue to retain him in its services; that the Court cannot force a willing employee on an unwilling employer; that in the peculiar circumstances of this case coupled with the position of the Claimant as Information Security Officer, the Defendant could not be reasonably expected to retain the Claimant in its employ the latter having been in fundamental breach of trust and confidence by which he is expected not to act in a way to undermine the employment relationship between them citing Cadbury Nigeria Plc v. Oni (2012) LPELR-19821(CA), Lam Siu Wai v. Equal Opportunities Commission (2021)HKCFI 3092 (Hong Kong) & Bhasin v. Hrynew (2014) SCC 71 (Canada).

 

17.       Finally, learned Counsel urged the Court to resolve the lone issue in favor of the Defendant and hold that the employment of the Claimant was properly terminated by the Defendant.

 

5.         Decision

18.       The facts of this case which are not contested by both sides are that Mr. Olalekan Babatunde Oloyede, the Claimant, was employed by the Defendant as its Information Security Officer. According to the Defendant the office of the Claimant was central and critical to its business. There was a policy of the Defendant that no employee should install any unauthorized software on the official laptops given to the employees for the discharge of their duties. At some point in time, the Claimant was alleged to have unauthorized software, Oracle VM, on his official laptop. Claimant was queried on this infraction and he answered accordingly. It was said to be the third such incident against the Claimant within six months. The Defendant not being satisfied set up an Ad-hoc Disciplinary Committee to look into the allegation against the Claimant and his response. Claimant was invited to and did appear before the Committee and made representation. Pursuant to the Report of the Committee (Exh. JE3), the Defendant by Exh. JE4 terminated the employment of the Claimant with immediate effect, paid him a month salary in lieu of notice and also paid him a prorated salary for the month of February, 2021. It is the position of the Claimant that he remains in the employment of the Defendant and that he should continue to be paid his salaries from the month of March, 2021 till his employment is properly determined in accordance with the rules of engagement. Both sides agree that Exh. JE5 (Exh. BO9) is the foundation of the relationship between them. It is on the basis of the above abridged facts that the Claimant approached this Court seeking 8 reliefs. The first 2 reliefs are declaratory in nature while the last 6 are for various orders of Court.

 

19.       I have read and clearly understood all the processes filed by learned Counsel on either side. I heard the oral testimonies of the witnesses called at trial and equally watched their demeanor. I carefully and patiently reviewed all the exhibits tendered and admitted and in addition heard the oral argument of the learned Counsel at the point of adopting their final written addresses. Having done all this, I set down the following issues for the just determination of this case –

 

1.         Whether in the circumstances of this case the employment of the Claimant was properly terminated in accordance with the terms and conditions applicable.

2.         Whether considering the whole gamut of this case and the evidence led, the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought against the Defendant. 

 

20.       The major grouse of the Claimant against the Defendant is that the severance of his employment with it by a letter dated 9/2/21was not in compliance with the Defendant’s condition of service and hence unlawful, null, void and with no legal effect. This makes the first issue set down for determination apposite and imperative. The law is trite that where as in the instant case an employee complains of wrongful or unlawful termination of his employment he has certain burden to discharge. The employee quite apart from establishing the existence of employment relation between him and his employer, he must also prove to the Court who has power to terminate his employment, the mode or manner which must be followed in doing so as well as bring to the fore how the steps taken by his employer were not in compliance with the expected mode of termination. All these ordinarily will be contained in the contract of employment or terms and conditions of engagement which both sides subscribed to. Both sides also placed reliance on Exh. JE5 (tendered as Exh. BO9 by the Defendant). That exhibit IBEDC Conditions of Service, 2017. Clause 5.1 deals with Disciplinary Actions. In Clause 5.1.1 it states inter alia that disciplinary action will be taken against employees who demonstrates unsatisfactory conduct inconsistent with his/her responsibilities or position and is therefore disruptive to the smooth working of the department or organizational unit and that the Company reserves the right to mete implement appropriate sanctions in line with policy. The disciplinary procedures to be adopted are stated in Clause 5.1.2 as follows –

            a.         Official query from the supervisor with a copy to HR Department;

            b.         The employee’s reply;

            c.         Immediate disciplinary action if reply is unsatisfactory;

d.         A disciplinary committee’s evaluation (in event of severe cases); and

e.         Implementation of the verdict i. e administration of disciplinary actions or acquittal of employee

            f.          Disciplinary proceedings will be recorded in employee’s file.

 

21.       Now what were the steps taken by the Defendant before terminating the employment of the Claimant? I find in Exh. BO7 a query was issued to the Claimant in which 3 allegations were leveled against him thus –

 

“ A review of the contents of the former laptop allocated to you revealed the following

1.         You had an unlicensed Microsoft Office 2016 application file stored (and probably downloaded) on the company laptop.

2.        You had pirated movies probably downloaded from an illegal site into the company laptop.

              3.       You had unapproved software on the company laptop.

 

As a member of the Information Technology Division and the officer responsible for Information Security in the company, you are aware that this is totally unacceptable due to the grievous impact this can have on the security of our IT infrastructure, and the potential exposure and/or reputational damages to the company.

 

You are to explain why you should not be sanctioned for what appears to          be a consistent flagrant conduct.

1.         Breach of company policy.

2.         Breach of trust considering that by your job role, you are the officer primarily responsible for ensuring that the security of the company’s IT infrastructure is not compromised”.

 

22.       I found the response of the Claimant on page 3 of Exh. BO7 in which he, among other things, apologized “… for any inconvenience these acts might have you and the business at large”.

 

23.       Aside from the query issued and the response to same by the Claimant, the Defendant being not satisfied with the response set up an ad-hoc Committee as directed by Clause 5.1.2(d) of Exh. JE5. The Report of that Committee was tendered and admitted as Exh. JE3. I find that the Claimant appeared before this Committee and made representations. In paragraph 4.0 which contained the Committee’s Deliberations and Findings, the Committee found inter alia

 

“ix.      Mr. Olalekan Oloyede breached the trust obligation he held towards IBEDC in discharging his duties as Information Security Officer of the company. He contravened company policy by having a pirated software on his official laptop as well as installing an unauthorized application on same. This has made his supervisor (the CIO) to completely lose trust in him and trust his loyalty. This is further strengthened by Mr. Olalekan Oloyede’s assertion that on weekends he did ‘charitable’ work with organizations and these included his former employer – a conflict of interest concern.

“x.        Mr. Olalekan Oloyede’s submissions in the course of the sitting (his contradictory statements and his evasive answers to questions), have given all the Committee members sufficient grounds to uphold that he was not very truthful and cannot be trusted to hold the very sensitive job role of Information Security Officer”.

 

24.       Following from these findings, the Committee recommended that the Claimant’s “appointment with the company should be terminated forthwith as his continued stay raises major security concerns for the company’s IT infrastructure” and that a double check should be carried out on all applications and IT infrastructure he has access to for signs of compromise of any sort.

 

25.       In implementing the recommendations of the Committee, and pursuant to Clause 5.1.2(e) of Exh. JE5, the employment of the Claimant was terminated with immediate effect by Exh. JE4. Termination of employment is one of the modes of exit from the Defendant as recognized by Clause 5.19.8 of Exh. JE5. Under Clause 5.19.10.8 of Exh. JE5 the appointment of an employee whose appointment has been confirmed may be terminated by giving one month notice or payment of one month salary in lieu of notice. The reason for the termination of the Claimant’s employment as stated in Exh. JE4 was “… as a result of your breach of the trust obligation expected from you towards the Company in the discharge of your duties as the Information Security Officer”. Exh. JE4 also stated that the Claimant would be paid one month salary in lieu of notice as well as his prorated salary for the month of February, 2021. The Claimant did not contest the fact of payment to him of a month’s salary in lieu of notice and neither did he argue that he was not paid the prorated salary for the month of February, 2021. Gerawa Oil Mills Ltd v. Babura (2018) LPELR-44720(CA) following Julius Berger (Nig.) Plc v. Nwaliwu (2006) 12 (Pt.1995) 518 decided that where an employee receives his terminal benefits after his contract of employment has been brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. This is because the receipt of payment by the employee renders the termination mutual.

 

26.       I have taken enough time in evaluating the available documentary evidence in this case as seen above. The question then is: was the termination of the employment of the Claimant unlawful and or wrongful for failure of the Defendant to comply with the rules of engagement as contained in Exh. JE5? I dare say that the answer to this critical question must definitely be that the Defendant did all that was expected of it within the confines of Exh. JE5 in terminating the employment of the Claimant. The law is trite that once an employer complies with the applicable rules, it brings the employment relationship to an abrupt end.

 

27.       It is my finding that the Claimant was issued a query; that he responded to the query; that the Defendant being not satisfied with the reply to the query set up an ad-hoc disciplinary Committee to further investigate the allegation against the Claimant; that the Claimant appeared before the ad-hoc Committee and made representations; that the Committee recommended disengagement of the Claimant; that Claimant’s employment was accordingly terminated; that the Claimant was paid a month salary in lieu of notice and prorated salary for the month of February, 2021 and that the Claimant did not deny being so paid or receipt of said money paid to him by the Defendant. It is also a trite position of the law that once an employee is paid and he accepted payment of a month salary in lieu of notice he could not be heard to subsequently complain of wrongful or unlawful termination of his employment. See Gerawa Oil Mills Ltd v. Babura (2018) LPELR-44720(CA) & Julius Berger (Nig.) Plc v. Nwaliwu (2006) 12 (Pt.1995) 518

 

28.       Learned Counsel to the Claimant had argued that breach of trust and confidence for which the employment of the Claimant was terminated was not an offence within the meaning of the Conditions of Service of the Defendant and that being an hybrid of international best practices does not apply to modify the rights of parties conferred on them by their voluntary agreement citing Adeokin Records v. MSCN (LtdGte) (2018)15 NWLR (Pt. 1643) 550 at 568. The duty of trust and confidence is an evolution of Common Law. The essence of the duty which is implied is that neither employer nor employee will act so as to breach the duty of mutual trust and confidence that exists between them without good reason. By this duty there is an implied obligation on both employer and employee not to act in any way that is calculated to, or likely to, breach trust and confidence.

 

29.       It must be accepted generally by now that parties in a contract of employment are subject to a duty not to conduct themselves in such manner that will likely destroy or damage the existing duty of trust and confidence between them. This is an implied term which developed from the duty of cooperation and has since assumed a central role in the contract of employment. There have been many arguments on the origin of the mutual trust and confidence. However most courts and employment tribunals have adopted the principle in Woods v W.M. Car Services (Peterborough) Ltd  ([1981] ICR 666) where Browne-Wilkinson J stated that “….employers will not without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” See generally, OGU-JUDE, Munachiso; “The Impact of Case Law on the Duty of Trust and Confidence in the English Legal System” (April 14, 2020). English & Commonwealth Law eJournal Vol 15, Issue 45, June 16, 2020, Available at SSRN: https://ssrn.com/abstract=3575500 or http://dx.doi.org/10.2139/ssrn.3575500 visited 16/2/23

 

30.       The Common Law duty of trust and confidence covers a wide range of acts and conduct. The mere fact of employment relationship necessarily implies that either party has a reasonable expectation of the trust and confidence of the other among others not to act in a way to adversely affect that relationship. Virtually a wide range of acts and conducts will fit in properly under this duty. The position of the Claimant as the Information Security Officer of the Defendant and the diverse allegations against him which culminated in his disengagement properly fit in to a breach of the duty of trust and confidence by him. No employer would reasonably be expected to continue to retain the Claimant in its employ and in that sensitive position considering the findings of the Ad-Hoc Committee against him. Once the mutual trust and confidence is absent an employment relationship cannot continue. The Supreme Court said as much in Chukwuma v. Shell Petroleum (1993)4 NWLR (Pt. 289) 512 at 560 and the Court of Appeal reiterated same in Cadbury Nigeria Plc v. Oni (2012) LPELR-19821

 

31.       Accordingly, I resolve issue 1 in favor of the Defendant and against the Claimant. The first 2 declaratory reliefs sought are therefore refused and dismissed for lack of proof.

 

32.       The second issue for determination is whether considering the whole gamut of this case and the evidence led, the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought against the Defendant. Reliefs 3 – 6 are for Orders of Court mandating the Defendant to pay some sums of money to the Claimant effective from March, 2021. Claimant’s employment was terminated on 9/2/21 by Exh. JE4. In the resolution of issue 1, this Court has found that the employment of the Claimant was properly terminated by the Defendant by Exh. JE4. Reliefs 3-6 are predicated on the success of the declaratory reliefs sought. Having so resolved issue 1 therefore there is no hanger upon which reliefs 3 to 6 are to rest. They fail and I dismiss them for lack of proof. Relief 7 is for payment of =N=25,000,000.00 as general damages. General damages are ordinarily awarded for the loss suffered by a Claimant resulting from the acts or conduct of another. Thus far in this Judgment, this Court has not found any fault on the side of the Defendant or any injury caused the Claimant by the Defendant.

 

33.       There is therefore no basis upon which to award any damages in favor of the Claimant. Accordingly, this head of claim is refused and dismissed for lack of proof. The final relief sought by the Claimant is for an Order awarding the sum of Nine Hundred Thousand Naira (=N=900,000.00) only to the Claimant against the Defendant being the financial cost incurred by the Claimant in engaging legal services to prosecute this case. This case ought not to have been instituted in the first place at least not by the Claimant. The whole exercise by the Claimant is akin to chasing the shadow. It is an exercise in futility. Out of the 7 reliefs already considered, none has been granted to the Claimant. The same fate must certainly befall this last relief. There being no basis to grant same, I have no hesitation in refusing and dismissing this head of claim.

 

34.       Before I draw a curtain on this Judgment, I am constrained to place on record conduct of Counsel before me in this case. The learned Counsel to the Defendant, A. M. Pade-Aderibigbe Esq. on pages 18 to 19 of his final written address drew my attention to some fairly recent appellate judicial authorities which ordinarily would be against his case. In my over a decade as a trial Judge, this is the first time a learned Counsel would do such before me. But then that is the way it should be. That is the way advocacy should be practiced. Adjudication is not and must be seen as a game of hide and seek. This is a positive development and a departure from the usual experience of the Bench where a Counsel would not only hide such binding judicial authorities from a trial Judge but some would even go as far as misrepresenting the tenor of an appellate decision. In some jurisdictions such a conduct would attract heavy sanction by the Law Society. In the Court, a Temple of Justice, while the Judge is the Priest, Counsel are Ministers in it. It is the duty of learned Counsel to guide and assist the Judex in arriving at the justice of a matter in that Temple and not to mislead the Court. I cannot but commend A. M. Pade-Aderibigbe of Counsel to the Defendant.

6.         Conclusion

35.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I dismiss the case of the Claimant in its entirety.

36.       The Claimant shall pay to the Defendant the cost of this action assessed at Two Hundred Thousand Naira (=N=200,000.00) only.

 

37.       Judgment is entered accordingly.

 

 

__________________________

Hon. Justice J. D. Peters

Presiding