IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HON. JUSTICE JOYCE A. O. DAMACHI

 

DATE       12^th September 2014                                      

Suit NO: NICN/LA/478/2022

 

BETWEEN

 

CROWN FLOUR MILLS LIMITED                        -                       CLAIMANT

 

AND

 

GBENGA AKINYEMI                                              -                       DEFENDANT

 

The Claimant claims against the Defendant as follows:

 

       I.            DECLARATION that the Defendant, by the roles he played in the Condonation Scheme, breached his contract of employment, Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption.

 

ii          A DECLARATION that the reversal of the credit notes already posted by the OGBS team to some specific dealers' accounts, through the connivance of the Defendant and some other ex-employees of the Claimant, is wrongful, illegal and unlawful.

 

   iii.    AN      ORDER          directing the             Defendant to             refund            the      sum     of  NGN 20,OOO,OOO(Twenty Million Naira) which is the total sum received by the Defendant under the condonation scheme.

 

Iv GENERAL DAMAGES for the sum of NGN 30,000,000 (Thirty Million Naira only) in restitution to the Claimant following the loss suffered by the business in view of the  current exchange rate.

 

v.   Cost of action of the suit.

 

Claimants case

1.      That CROWN FLOUR MILLS LIMITED is a subsidiary of Olam International it manufactures differenth agricultural -products, including but not limited to poultry feeds. GBENGA AKINYEMI an ex-employee, was the Head Sales Administrative for Crown Flour Mills Limited employed May 16, 2017 and was bound by the terms of employment contained in his employment letter, Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption.

2.      Two Years after his employment, in 2019, Crown flour mills approved a "Condonation Scheme" to boost the sales volume of the poultry feeds. It was initiated by 2 officers in their capacities as  National Sales Manager and Business Head of Poultry Feed  (Matthew Asuelimen &  Umesh Kain). It was a monthly rebate program on the prices of Poultry Feeds aimed at encouraging customers to buy more quantities, encouraged by a discount.

 

3.      That a number of dealers were selected by OGBS team of Crown Flour Mills, but in other to defraud the company, GBENGA AKINYEMI,  Matthew Asuelimen, Umesh Kain, and their cohorts decided to focus on two dealers (Savees Livestock Services Limited and Oti's Beaute International Limited).

 

4.      For several months, GBENGA AKINYEMI was instructed by Matthew Asuelimen and another officer the Trade Receivables Officer (Franklin Odejinmah) to keep reversing the credit notes initially posted by the OGBS team for the benefit of the company nominated dealers to the accounts of 2 specific dealers.

 

5.      The converted funds were transferred from the 2 dealers accounts to Umesh Kain through multiple accounts as well as bitcoins accounts. Two of the beneficiaries were Ragini Kain (Umesh's Wife) and Harish Sharma. 

 

6.      In the third quarter of 2021, an insider became aware of the fraud   and started blackmailing Matthew Asuelimen and Umesh Kain through an internationally generated number via WhatsApp.

 

7.      Matthew Asuelimen and Umesh Kain paid  N200  Million Naira using the bitcoin USSD wallet provided by the Blackmailer, later he was on a monthly pay N2 Million Naira. That on the side, Umesh Kain increased the amount being converted significantly between August to November 2021, before his resignation and he ensured he deleted the rebate related mails by Matthew Asuelimen.  

 

8.      Crown Flour Mills discovered the fraud on July 29, 2022, the police were invited to investigate the condonation scheme and Gbenga Akinyemi   was suspended without pay on August 22, 2022.  

 

9.      That A Panel of Enquiry set up on September 5, 2022 found he    benefitted some monies under the condonation scheme. His employment was   terminated on October 25, 2022.  In November 8, 2022 he was asked to refund the monies unlawfully received under the condonation scheme. 

 

10. The fraud is estimated between NGN2, l00,000,000 (Two Billion and One Hundred Million Naira) to NGN3,500,000,000 (Three Billion and Five Million Naira only) and he is alleged to have  benefited over NGN20,000,000(Twenty Million Naira).

11. The claimant submits that Gbenga Akinyemi  breached his contract of employment, Olam code of conduct 2020 and Olam's policy on Anti­-bribery and corruption.

 

PARTICULARS OF BREACH

a.      He breached the provisions of his letter of employment 

1.       By being  guilty of misconduct, breach of trust or any act which is likely to damage the Company's interest and reputation.

2.        By failing to be transparent, honest and culpable of resisting temptation that might arise in the course of his duty

3.        By not complying with the provisions of Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption Which had 

ü  zero tolerance to bribery and corruption 

ü  and expected a high level of accuracy in accounting and records in transactions entered into on behalf of the Claimant.

He therefore contravened the provisions his contract of employment, Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption.

 

                                  Defendant’s case

12.The Defendant agrees that he was an employee of  Crown Flour Mills and worked as a Sales Executive from 2017 to 2022, he had an impeccable employment record of upward salary review, promotion, award, and general commendation.

13. That he was not bound by Olam Code of Conduct 2020 and Olam's Policy on Anti-Bribery and Corruption, because they never formed part of his terms of employment, he avers that  there was indeed a  training held between 2020 and 2021 in preparation for the introduction of the Code of Conduct but no such document was ever given to him till his dismissal in October 2022.

 

14. He said that his employer commenced a Condonation scheme around June and September 2017  for Fish and Poultry feed respectively. His job description was to generated sales report which were used after the commencement of the condonation scheme. In late 2020 he  was directed by his supervisor- the National Sales Manager (Matthew Asuelimen) to be in charge of the computation of the amount due to each distributor and  prepare the reversal files under the scheme      

15.  The actual login to actualize the reversal was done by the Trade Receivable Officer (TRO), Mr. Franklin Odejinmah, who worked at the Claimant's Lagos Office before he was transferred to the Abuja office.

16. He   never received any directive from any senior officer of the company  whether verbal or written, not to obey the directive of the National Sales Manager (Matthew Asuelimen), or that the National Sales Manager had no authority to direct him to prepare the credit reversal files for onward transmission to Mr. Franklin Odejinmah.

 

17. That on 4^th August 2022, his employer without any reasonable ground or justification, commenced a series of unlawful acts of trickery and deceit, Kemi Oni (Human Resource Officer in Lagos) and himself were instructed to leave Lagos to Abuja to carry out inspection of a property in Abuja. He paid for the flight ticket for both of them expecting to be reimbursed by the company when he returns to Lagos.

18.  Upon arrival in Abuja, he was confronted with an allegation of fraud which he denied being a part of. He was interviewed by the General Financial Controller and made to write statements. He stated specifically that he acted pursuant to the directive of his supervisor the National Sales Manager (Matthew Asuelimen) and that at a point, he became suspicious of the directive.

19. That they were handed over to the police and driven in a hired cab through the  Abuja - Kaduna road from about 5.30pm to about 9.30pm, at the time of this  illegal arrest on August 4^th 2022, this highway was one of the most dangerous highways in Nigeria, incidences of banditry, abduction and kidnapping was rampant by road and by rail from around  July 2020 until November 2022.  

 

20. The Defendant was kept in custody from 4^th  to 8^th August 2022 when he was charged to Court. He was further remanded till 17^th August 2022 when the Police informed the Court as follows “the outcome of our investigation necessitates the striking out of the names of the 2^nd (the Defendant/Counterclaimant herein) and 3^rd Defendants on the F.I.R who turn out to be witnesses in our investigation by reason of our findings”.  On that application, he was discharged and he returned to Lagos.  

 

21. He returned to his duty post in Lagos and was suspended on 19^th August 2022 “pending when investigation is over” The HR Manager, Oluwakemi Oni by email invited him to a "meeting" on September 6^th  2022 a Microsoft Teams Call and an interview. There was no invitation to answer any criminal allegation and no formal charge was sent detailing any criminal allegation against him before the scheduled “interview". The 4-man panel found him guilty notwithstanding the police report which had exonerated him. He made available to the company every suspicious information which came into his custody regarding the Condonation scheme but none of these two bodies could trace any kobo to him.

 

22.He was dismissed with effect from October 26^th 2022.  On 8^th November 2022 a letter of demand was sent to him   asking for a refund of #20,000,000 (twenty million naira).  His lawyer also wrote a letter of demand dated 14^th November 2022 to his employers.  It was upon receipt of that letter that this suit was instituted against him.

23. He contends that although his letter of employment gives his employer the right to transfer him out of Lagos, every action he took in connection with the Condonation scheme was done in Lagos not Abuja or Kaduna. His arrest was illegal because he was deceived to travel  to Abuja for investigation and thereafter charged which should have been done by the Lagos State Police Command.

24. He further contends that by telling a lie that he had "confessed" to committing a crime, the claimant (his employer)  procured his illegal arrest and detention for 14(fourteen) days on a spurious charge for which there was no prior investigation but which was at the instigation of his employer. He underwent a needless prosecution upon false information to the Police that he had confessed to the commission of criminal offences and subjected to a   wrong jurisdiction of a court   for offence purportedly committed in Lagos State. His employer provided the opportunity and venue of arrest. The officers from the Kaduna State Police Command provided no written authority to arrest him, and he was bundled into a private vehicle and driven to Kaduna at night.

 

25. His case is that his employers failed in their duty to protect his life even when accused of the commission of an offence, by not sending him to Kaduna  by air from Abuja which was a safer alternative means of transportation.   

 

26. He was maliciously prosecution in Kaduna State on a groundless prosecution which could not secure any conviction or sentence, there was no  investigation in Lagos state where he worked. Even after being investigated and exonerated  by the illegal process,  his employers carried out  discreet investigation of his bank accounts, mobile telephones & several interviews. 

27.  The purported Panel of Enquiry (consisting of members of staff   and his employers lawyers) which alleged he received between   N400 thousand to N500 thousand naira monthly for the reversal could not   prove receipt of any money by him.

28. That the Code of Conduct or Anti-Bribery Policy documents were never given to him. As a result of his unlawful dismissal at age 42 he is unable to take care of himself and his family, even as a trained I.T. Specialist he has not secured another employment due to the stigma of dismissal. 

29. that he is compelled to counter-claim in order to take the stigma of dismissal away from his employment record after serving for more than five years and he is claiming salary due for the months of August, September and October  and gratuity for period he worked and also the time this suit is in Court up till the date this suit is decided and if he is successful the purported dismissal set aside.

30.    During trial, claimant presented 2 witnesses.

CW1 tendered 3 exhibits EXH C1 – EXH C3; CW2 tendered 9 documents marked as exhibits C4 to Exh C13. The Claimant’s counsel informed the Court that Exhibit C1 and Exhibit C3 were same document and would be relying  on Exhibit C3 only.

a)    A computer-generated copy of the analysis of the accounting records of the company during the said period– Exhibit C1

b)    Snapshots of the transfer of funds-Exhibit C2

c)     A computer-generated copy of the excel sheet detailing estimated fraud -Exhibit C3

d)    The Defendant’s letter of Appointment – Exhibit C5

e)    The Claimant’s letter of suspension dated 22^nd August 2022 -Exhibit C6

f)      The Claimant’s letter dismissing the Defendant’s appointment -Exhibit C7

g)    The Claimant’s letter of demand dated 8^th November 2022- Exhibit C8

h)    Confession letter from Mathew Asuelimen – Exhibit C9

i)      The Claimant’s investigation report– Exhibit C10

j)      The Claimant’s panel of enquiry committee report dated 29^th September 2022- Exhibit C11

k)    Olam’s code of conduct – Exhibit C12

l)      Police interim report dated September 9, 2022 - Exhibit C13

31.        The Defendant tendered 14 documents marked as Exhibits D1 to D14  

a)     Claimant’s upward review of salary letter dated 27^th October 2017 -Exhibit D1

b)    Claimant’s confirmation of appointment letter of 12^th December 2017- Exhibit D2

c)     Claimant’s letter of 12^th April 2018- Exhibit D3

d)    Claimant’s salary review letter of 21^st January 2021- Exhibit D4

e)     Defendant’s curriculum vitae – Exhibit D5

f)      Claimant’s offer of appointment to the Defendant dated 16^th May 2017 – Exhibit D6

g)     Record of proceeding of the Kaduna Magistrate Court in suit no: KMD/98X/22 held 8^th August 2022- Exhibit D7

h)    Letter of suspension dated 19^th August 2022 – Exhibit D8

i)      Defendant’s solicitor’s letter to the Claimant dated 14^th November 2022 – Exhibit D9

j)      Claimant’s letter of dismissal dated 25^th October 2022- Exhibit D10

k)    Defendant’s solicitor’s bill of charges dated 12^th November 2022 – Exhibit D11.

l)      Flight ticket reservation details for Oluwakemi Oni and the Defendant- Exhibit D12.

m)  Claimant’s letter of demand dated 8^th November 2022- Exhibit D13.

n)    Certificate of commendation dated April 20, 2018 – Exhibit D14.

 

                    DEFENDANTS FINAL ADRESS & ISSUES FOR DETERMINATION

32.  ISSUE 1 Whether the Claimant can suspend the Defendant without pay and purportedly dismiss the Defendant from its employment pursuant to the ‘investigation of scam’ carried out by the Claimant’s panel.

  CW1 testified under cross examination that he was not familiar with the condonation scheme  he was employed  in October 2019 towards the end of the condonation scheme and  he did not prepare Exhibit C3, (the computer-generated copy of the excel sheet detailing estimated fraud) and was not aware if the report was submitted to the Police for investigation. CW2 the HRM of the Claimant in Kaduna branch on the other hand testified that she was not very familiar with the Defendant’s employment records. And When   asked to tell the Court (from all the documents tendered) something that indicates the Defendant embezzled ?20,000,000 or any amount at all”, she referred the court to Exh C 11 (the report of the panel of enquiry)  paragraph 5.1.8  and could not present any of the documents the said panel relied on in reaching their conclusion.

33.    DC agreed that a Company can set up a panel to investigate infractions of the terms of employment but not for the purpose of investigating an allegation of a criminal nature as spelt out by Section 335(1)(a) of the Criminal Law of Lagos-he relied on CBN V DINNEH (2021) 15 NWLR (PART 1798) 91 that allegations of fraud and forgery have to be pronounced upon by the courts of law. He further submitted that the panel   was set up on 29^th September 2022  after the Police report Exhibit C13 of 9^th September 2022 (page 9-10) had exonerated the Defendant and his name had been struck off the FIR because he  doesn’t deal directly with customers and was not involved on how the rebates came about.” 

34.  Paragraph 5.1.8 of Exhibit C11 (panel of enquiry report) dated 29^th September 2022 stated that “Gbenga (the Defendant) and Franklin claimed not to have benefitted from the scheme and Matthew Asuelimen reiterated this. However, from a careful analysis of the exhibits before the Panel we found that Gbenga received between #400,000 to #500,000 monthly for the work done while he was to settle Franklin within the same amount”.  Neither CW1 nor CW2 tendered any of the documents that were examined by the panel to the court before reaching this conclusion. Also, none of the members of the said committee of investigation gave evidence in Court and testified about the authenticity of this report.  

35.   DC concluded that the claim of ?20,000,000 (twenty million naira) was based on the unlawful investigation that was not proved against the Defendant. No bank statements or any document at all was presented before this Court.  He also submitted that Exhibit C11 does not prove any allegation of fraud against the Defendant it constitutes hearsay evidence under Section 38 of Evidence Act which is inadmissible and urged the court to expunge it & attach no weight to it even though it was admitted without objection. Having received an undesired verdict from the police, the Defendant took extra-legal efforts to set up a panel to investigate the same crime, after the Police report had exonerated him.

36.  Unlawful suspension    

The Black's Law Dictionary, 8th Edition, by Bryan A. Garner, Page 1487, defined "suspension" as the act of temporarily delaying, interrupting or terminating something. Defendant was suspended without pay Exhibit D8 from 19^th August 2022 to 25^th October 2022 after the Police had exonerated him on an allegation of breach of the Company’s code of conduct. In SAGAMU MICROFINANCE BANK PLC v. LAWAL (2022) LPELR-58767(CA) the court stated   that an employer cannot suspend without pay where there is no express or contractual right to do so. Peter Olasunkanmi Atoki vs. Ecobank Nigeria Plc, (2014) 47 N.L.L.R. (pt. 157) 33. Aloysius vs. Diamond Bank Plc (2015) 58 N.L.L.R. (pt. 199) 92 – 140. Therefore, his suspension is unlawful and entitled to the payment of his salary from 19^th August to 25^th October 2022.

 

37.  Wrongful dismissal

In  UBN Ltd. v. Ogboh (1995) 2 NWLR (Pt.380) 647 the court stated that the only remedy for wrongful dismissal is a claim for damages.   Exhibit D6 states the condition for termination after confirmation, either party could give one month notice in writing or in the event of serious misconduct, persistent unpunctuality, neglect of duty or breach of any rules or regulation made by the company, the company without notice or payment in lieu of notice can terminate the employment.

38.   DC submitted that the Claimant failed to prove defendant breached any of the terms of the employment in EXH D6. Rather the Defendant received commendation as seen in Exhibits D2, D3, D4 and D14.

He cited  INSTITUTE OF HEALTH ABU HOSPITAL MANAGEMENT BOARD    V. ANYIP (2011) LPELR-1517(SC) SC held that Where an employer gives any reason for firing his servant, he  is obliged to satisfactorily prove same   otherwise the termination/dismissal may constitute a wrongful dismissal without more”. And in ISHENO V JULIUS BERGER NIGERIA PLC (2008) 6 NWLR 582 S.C   appropriate measures of damages are awarded to the plaintif in such  instances. OFORISHE V NIGEIRAN GAS COMPANY LTD (2018) 2 NWLR 35 S.C

39.   DC has argued that the suspension and dismissal was wrongful. His  dismissal was not as a result of the breach of any of the terms of his employment, rather it was based on the allegation of breach of OCOC Exhibit C12. In his  WSOO defendant  stated that OCOC was never given to him during the course of his employment, neither  was there an acknowledgment and this evidence was never contradicted during trial according the DC. And on the said Workplace portal, there was no evidence  to show that the Defendant came in contact with the OCOC nor was it part of his terms of employment nor binding on him as an employee.

 

40.   ON ISSUE 2 Whether the Claimant is guilty of the tort of malicious prosecution and false imprisonment of the Defendant.

DC submitted that the Claimant was guilty of the tort of malicious prosecution and false imprisonment. To establish  malicious prosecution ALHAJI JIBREN GARBA V ALHAJI ISA TARIHU MAIGORO (1992) 5 NWLR PART 243 at 589  held that the plaintiff must prove that the defendant without reasonable cause commenced the action leading to a criminal charge; he was prosecuted maliciously and the prosecution terminated in his favour. On claimant’s invitation  to Abuja, defendant  was informed by Sahil Gupta (General Financial Controller) (GFC) about the fraud, he was questioned and handed over to the Police.  The Defendant was further deceived that he was being taken to the Kaduna office branch when he was indeed driven to Kaduna Police Command.

41.    To establish the meaning and nature of the tort of false imprisonment, the SC in OKONKWO v. OGBOGU & ANOR (1996) LPELR-2486(SC) stated that, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him.”  

After  GFC  questioned him, a public vehicle was procured for the police to whisk  him to Kaduna, he was detained in Gabasawa Police Cell from August 4 to August 8 before he was charged to Court. The First Information Report (FIR) stated that the Defendant was arrested based on a complaint lodge by Vinod Kumar- a Principal Staff of his employer. He  was falsely imprisoned in the cell till 17^th August when the matter came up again in Court. By Exhibit D7, the Police informed the Magistrate Court that based on their findings, the Defendant’s name should be struck off the charge sheet. It was after the court’s proceedings on 17^th August that the Defendant was released from detention.

42.   JIM-JAJA V. C.O.P. (2011) 2 NWLR (Pt. 1231) 375  stated that It is false imprisonment if the plaintiff was arrested and detained by the police in consequence of false and spiteful allegation of the complainant (third party).”  DC argued that Crown Flour Mills set the law in motion by lodging a complaint   leading to a criminal charge at the Kaduna Police Station. The Defendant was prosecuted and the criminal prosecution terminated in his favour by the Police requesting that the Defendant’s name be struck off the charge sheet.

Malicious prosecution.

43.   The DC argued that  the charge was maliciously instituted  by deceiving the Defendant twice- first to go to Abuja, secondly that he was being taken to the Kaduna branch. The Claimant acted without reasonable and probable cause, particularly because the Defendant only worked in the Lagos branch and could not have been involved in a crime that occurred within the jurisdiction of the Kaduna Court. He cited  CHRIS EHIKIOYA EIGBE V NIGERIAN UNION OF TEACHERS (2008) 5 NWLR 455 S.C. PART 1081.   In the instant case, the Defendant was not only maliciously prosecuted and falsely imprisoned, the Defendant was also denied any opportunity for fair hearing by the Claimant before he was arrested by the Police.

 

44.   ISSUE 3 Whether the Defendant is entitled to a grant of all the reliefs sought.

On relief (a) The DC submitted that the defendant was wrongly suspended without pay therefore the suspension is unlawful, null and void-Sagamu Microfinance Bank Plc v. Lawal (supra) and he is entitled to the payment of his salary from 19^th August 2022 to 25^th October 2022.

45.    On relief (b) the dismissal is unlawful, null and void- Institute of Health Abu Hospital Management Board v. Anyip (supra). Due to the stigma of dismissal he is unable to secure another employment therefore entitled to damages.

46.   On relief (c). The SC in OLANIYAN & ORS v. UNILAG & ANOR (1985) 2 NWLR 734 SC stated that When  termination is  in a manner not warranted by the particular contract under review, he must be  paid damages for breach.”  In considering issue 1, since he was wrongfully suspended and dismissed from employment according to DC in IFETA V. S.P.D.C. NIG. LTD (2006) LPELR-1436(SC) he is entitled to the sum of ?353,950.10 being full salaries and other entitlements from 1^st August 2022 till judgment is delivered.

47.   On reliefs (d), (e) and (f) sought in his counterclaim. Exhibits C13 and D7 shows that the Claimant endangered the life of the Defendant, falsely imprisoned and maliciously prosecuted the Defendant.

CHIEF CLEMENT O.C. OKAFOR V ANTHONY ABUMOFUANI (2016) 12 NWLR PART 1525 117 S.C- the liability for lodging a false report to the police leading to arrest and detention is   damages.

Also, in the case of ISHENO VS. JULIUS BERGER (NIG.) PLC (2008) 6 NWLR (pt. 1084) p. 582 the Court held that  it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment.   Once the right to free movement was unlawful, wrongful and unjustifiably breached and violated, he is generally entitled to the award of damages for the tort.”  Under cross-examination,  CW2  testified  about the  dangerous nature of the  Abuja-Kaduna Road,  the Defendant was driven  in a public vehicle at  night, he was falsely imprisoned and maliciously prosecuted therefore entitled to damages sought in reliefs (d), (e) and (f) of the   counterclaim.

48.   On relief (g) of his counterclaim the Defendant is entitled to a full refund of the cost of legal action-NAUDE V. SIMON (2014) ALL FWLR (PT 753) 1878 and UNION BANK OF NIGERIA PLC V. MR. N.M. OKPARA CHIMAEZE (2014) 9 NWLR (PT 1411) 166   where it held that solicitor's fees incurred by a party in litigation can be validly claimed from the opponent.

49.   On relief (h), Exhibit D12 is the  flight ticket  reservation to Abuja to carry out the “instruction” of the Company,  for himself and Oluwakemi Oni.  He incurred the sum of ?151,000. Defendant is entitled to a refund of  the said sum as special damages. The Supreme Court in ONYIORAH v. ONYIORAH & ANOR (2019) LPELR-49096(SC) stated that "Special damages are awarded for actual or exact losses suffered. 

DC submitted that unlawful dismissal cannot deprive an employee of his pension and gratuity, hence the Defendant should be entitled to relief (i)- NEPA V. ADEYEMI (2007) 3 NWLR (Pt. 1021) 315  dismissal can not  take  away entitlement to pension and gratuity as it is a vested right - IFETA V. S.P.D.C. NIG. LTD (supra) the Defendant is entitled to the calculation and payment of his gratuity and pension as shown in Exhibit D1 as same constitutes benefits which accrue to the Defendant in the course of his employment with the Claimant.

 

Claimants Final Address

50.  Issue 1: Whether the Defendant reversed credit notes posted by the OGBS team to some specific dealers’ accounts and thereby breached his contract of employment with the Defendant.

CC submitted that facts admitted need no further proof- Paulinus Chukwu & Ors v. Mathew Akpelu (2013) LPELR-21864. At  trial   Defendant admitted to paragraph 8 of the SOF, that he reversed credit notes initially posted by the OGBS team for the benefit of other dealers to 2 dealers.  From this admission he participated in the reversals on purported instructions of the National Sales Manager. 2 accounts were used for diversion of the Claimant’s funds in the Condonation Scheme. The Defendant therefore breached his contract of employment, he ought to have known that the reversals of the funds were unlawful, because (i) the instructions were coming from WhatsApp as against email, which was the generally acceptable mode of official communication in the Claimant’s office; and (ii) the reversal of the funds was not in consonance with the spirit and purpose of the Condonation Scheme. Besides, even when he became suspicious no report was made   to the management or anyone else. By Exhibit C5 (Defendant’s Letter of Appointment) he is required to be “…transparently honest and capable of resisting any temptation that might come across you in the course of your duty.  While in OCOC 2020 by Sections A2, Section A3, Section A4 he was required to uphold the law and the Code and also put integrity and fair play at the heart of all relationships; report any violation of the Code which he becomes aware of; determine what is right in line with the Code. The   zero-tolerance policy on bribery and corruption, giving of gifts are all embedded in the OCOC which binds the Defendant, inter alia, to maintain complete and accurate books and records of account. Though he claimed he never saw the Code before this Suit, he admitted in paragraphs 5 and 6 of the Statement of Defense  that there  was a meeting in preparation for the advent of the Code and  admitted  there exist in the company a platform called “Workplace” to which he had access, where company documents were made available. CC however doubts that the Defendant who was a manager was unaware of the OCOC. CC submitted that the reversal of the funds by the Defendant and his failure to raise alarm when he admittedly suspected it, was a breach of his contract of employment as contained in Exhibits C5 and C12.

 

51.  Issue 2 Whether the Claimant righty suspended and subsequently dismissed the Defendant from his employment.

The CC argued that the criminal nature of the allegations against the Defendant does not rob the Claimant of the vires to investigate, suspend and dismiss the Defendant. Following the Defendant’s breach of the terms and conditions in Exhibits C5 and C12, Claimant was empowered to suspend him without pay, pending the outcome of investigation of the cadre of misconduct alleged against the Claimant. The Court of Appeal in C.B.N. v. Archibong (2001) 10 NWLR (Pt.721) 492 (CA), (P. 507, paras. F-G), held that a written contract of service is binding on the parties thereto and it is outside the powers of the court to look elsewhere for terms with regard to termination of the contract other than in the written agreement. Elizabeth v. Ondo State Judicial Service Commission (2021) LPELR-55177 (CA) also stated that “An employer has the right to suspend an employee in the interest of the organization or establishment.”

By the terms of Exhibits C5 and C12 defendant ought to comply with the provisions or face disciplinary measures. Contracts of master and servant are governed by an employee handbook where the conditions of service are spelt out. The OCOC is akin to the staff handbook, which spells out the terms and conditions of the Defendant’s service-Oforishe V. N.G.C. Ltd (2018) 2 NWLR (pt. 1602) 35  In this case, documentary evidence (Exhibits C5 and C12) show that the Claimant lawfully suspended the Defendant pending conclusion of investigation.

An employee whose misconduct amounts to a crime may be dismissed notwithstanding the pendency or otherwise of a criminal action against him see Raymond Dongtoe v. C.S.C., Plateau State (2001) 9 NWLR (Pt. 717) 132 (P.672, paras. G-H. In UBA PLC V. Oranuba (2014) NWLR (pt.1390), 1 at 42  where an employee is  given fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence, whether he was first prosecuted  for the criminal offence arising from his acts of misconduct pales into insignificance once the court is satisfied that the employee was given fair hearing. The principle where the misconduct by an employee also amounts to a criminal offence, the criminal offence must first be prosecuted before employer can exercise his power of summary dismissal of the employee is not an immutable principle.”  

So, the contention of the Defendant that Criminal proceeding must be concluded before the Claimant can dismiss him is preposterous and amounts to making a specific rule to give way to a general rule. We contend therefore that the Claimant was lawfully dismissed in accordance with the spirits of Exhibits C5 and C12.

 

52.    Issue 3: Whether the Defendant diverted the sum of N20,000,000 (Twenty Million Naira) through the Condonation Scheme

CC urged the court to hold that the Defendant made personal gains from the Scheme and indeed not less than N20,000,000.00 (Twenty Million Naira) from the modest estimation via Exhibit C3.   During the inquiries the Defendant admitted receiving about N400,000.00 and N500,000 per month and a total sum of about N20,000,000.00 (Twenty Million Naira) from the Scheme.   By Exhibit C13 the police found that the National Sales Manager   sent money gifts   proceeds of the funds being syphoned to the Defendant. The were not rejected neither did he report it to anyone.  The National Sales Manager indeed confessed in Exhibit C9 that after Umesh Kain signed the Condonation files, he sought assistance from the defendant and Franklin to help reverse the postings and consolidate on  2 accounts   and  a percentage (between 5-10%) was shared amongst the sales team members.

In consideration of the facts and the oral evidence of the Defendant during the panel of inquiry the Claimant arrived at the sum of N20,000,000.00 (Twenty Million Naira) as what the Defendant gained from the Scheme.

 

53.    Issue 4  Whether the Claimant committed the tort of malicious prosecution and/or false imprisonment against the Defendant.

The Defendant argued in paragraph 8 that he was maliciously prosecuted by the Claimant.  He cited Alhaji Jibrin Garba v Alhaji Isa Tarihu Maigoro (1992) 5 NWLR (Pt.243) at 589. Obviously, the Defendant  quoted the ingredients of the tort of malicious prosecution to pull a wool over the eyes of the Court. In the lead judgment, Okezie JCA stated as follows in faulting the decision of the lower court to the effect that there was malicious prosecution: where he stated that the onus rests on the plaintiff to prove that the defendant instituted the proceedings maliciously.  It is incumbent on the complainant to have found the true facts before making the complaint. The plaintiff’s prosecutor (the police) was the person who set the criminal law in motion.

54.   Okezie JCA earlier stated that to succeed in an action for malicious prosecution, the plaintiff must show that the defendant was actively instrumental to his prosecution “he set the law in motion”, that the report against the plaintiff and his prosecution was without reasonable and probable cause. Just as was found in Garba v Maigoro (supra), he argues that the Claimant was not at all involved in the prosecution of the Defendant. The Court also found that in determining whether there was a reasonable and probable cause in case of malicious prosecution the test is laid down by the Supreme Court, to the effect that it is necessary first to find out what were the facts as known to the defendants at the time of making the charge and then decide whether these facts constitute reasonable and probable cause. The Court held in that case that there was reasonable and probable cause:  In that case, the Court held that the trial Judge was in error when he held that there was no reasonable and probable cause, as there was no direct evidence of malice in the case. In the present case, the fact known to the Claimant at the point of reporting to the police was that the Defendant was the person who actually reversed huge sums of money to certain selected customers in contradistinction with the purpose of the Scheme. That was enough ground, we opine, for reporting the matter to the police.

55.   To cap it all, during his evidence the Defendant testified that he was arrested on 4^th August 2022, charged on 8^th August, 2022, denied bail by the Court on the said 8^th August, 2022 and discharged on 17^th August, 2022. Therefore he was not tried at all, he was DISCHARGED NOT ACQUITTED. To establish a case of malicious prosecution, the plaintiff must show  he was tried, discharged and acquitted, the prosecution  was  without reasonable and probable cause and was out of  malice. Therefore, a mere discharge without trial does not amount to the case ending in favour of the plaintiff. See Belgore JSC in Balogun v Amubikahun (1989) 3 NWLR (Pt.107) 18 at 26, paragraphs A-D:

56.   CC submitted that failure to prove all four legs of the tort mars the case of the defendant.  The Defendant in trying to establish false imprisonment argued that he was lured to Abuja, questioned and taken to Kaduna in a public vehicle. The allegation that Sahil Gupta procured the vehicle that took him to Kaduna is an afterthought, which merely showed up in the Final Address. Accordingly, he urged the Court to disregard that piece of evidence given by counsel on behalf of the defendant. The argument of Counsel, no matter how brilliantly made, cannot substitute credible evidence-Okwejiminor v. Gbakeji (2008) 5 NWLR (pt.1079) 172 per Muhammad, JSC held at 222-223 paras H-D.

57.   The allegation of false imprisonment was not proven against the Claimant. Jim-Jaja v COP SUPRA defines false imprisonment as deprivation of liberty “…without lawful excuse.” In other words, the element of lawful excuse exonerates a defendant in a case of false imprisonment. In paragraph 9 of the Claimant’s Reply to the Statement of Defence, the Claimant stated that “…it only reported to the police fraud allegations but was not in control of how the police proceeded with the Defendant to Kaduna or any other Destination.”

58.   In determining liability for false imprisonment, the court must satisfy itself that there was no reasonable or probable cause for the arrest and detention of the plaintiff. In UAC (Nig.) Plc v. Sobodu (2007) 6 NWLR (Pt.1030) 368 at 394 paragraph G-H, Garba JCA held as follows:

To prove false imprisonment, a plaintiff has to show that the report made by a defendant is false, frivolous, without legal foundation and therefore actuated by malice. Where the defendant reported to the Police without more, false imprisonment action will not succeed

59.   CC argued that Claimant had reasonable or probable cause for reporting the Defendant to the police, in view of what transpired, with the Defendant at the middle of it all, it merely gave information or made a report which led the police, on their own initiative and in the course of investigations, to arrest the suspect.

60.   The Claimant did not participate in any activity between the police and the Defendant thereafter, paragraph 10 of the Reply to the Statement of Defense states that: “The Claimant denies paragraphs 16, 17, 18, 19, 20, of the Statement of Defense (which narrates the Defendant’s purported ordeal with the police) as the Claimant is not in a position to admit or deny the averments contained therein, and the Claimant puts the Defendant to the strictest proof thereof. The Defendant failed to rope the Claimant in on the basis of false imprisonment.

61.   In UAC (Nig.) Plc v. Sobodu (supra)  the Court held that the claim of false imprisonment was not substantiated and accordingly allowed the appeal and set aside the judgment of the trial High Court  for unlawful arrest and detention. CC submitted that the Defendant has not made out a case for false imprisonment, and accordingly the claim should fail.  

Fair Hearing

62.   The Defendant has argued that he was not given fair hearing before he was handed over to the police. How ever in paragraph 8.4 of his Final Written Address he stated he was questioned by Sahil Gupta before he was handed over to the police and in paragraphs 14, 15 and 16 of the Statement of Defence, he stated that he was interviewed by Sahil Gupta, the General Financial Controller. A party cannot approbate and reprobate at the same time. In Imasuen v University of Benin (2010) 3 NWLR (Pt.1182) 591 at 616 paragraphs A-B, the Court of Appeal held thus:  Fair Hearing  is real and must be considered in the light,  fact and circumstance of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic.

63.   The onus of proving denial of fair hearing lies with the party alleging denial thereof. If the Claimant afforded the Defendant an opportunity to be heard, Claimant has satisfied the requirement of fair hearing.  Attorney-General Kwara State v Abolaji (2009) 7 NWLR (Pt.1139) 199 at 219 paragraphs C-D, whether an opportunity of hearing was afforded to the parties entitled to be heard. J.C.C Inter Ltd v N.G.I Ltd (2002)4WRN 91, 104. In the general sense, the Defendant has no legal obligation to hear the Plaintiff before terminating her employment. So held Mohammed v Lake Chad Research Institute (2005) 11 NWLR (Pt 935) 1 at page 26.

 

64.        Issue 5  Whether the Defendant has discharged the evidential burden of proof to entitle him to any of the reliefs claimed in this Counterclaim.

Defendant’s Reliefs (a) and (b): The Defendant was lawfully suspended, pending the investigation of the case against it.  

Defendant’s Relief (c), (g) and (i): The Claimant’s dismissal affords him no right to “salaries and other entitlements Ansambe v. B.O.N. Ltd. (2005) 8 NWLR (Pt. 928) 650, P.514, paragraphs B-C. and Ex-captain Charles Ekeagwu V. The Nigerian Army (2006) 11 NWLR (Pt. 991) 382, (P.395, paras. E-F).” Dismissal terminates an employment and it is punitive without any terminal benefits. The  employee stands disgraced and held in ignominy.  For compulsory retirement terminal benefits  are paid.  The evidence before the Court shows clearly that Defendant indeed breached the contract and trust against the Claimant.

65.    Reliefs (c), (g) and (i) for payment of salaries, entitlements, and gratuity, plus legal fees of N15,000.000.00 (Fifteen Million Naira) have no basis in law. The trite position of law is that the Defendant will, even if he establishes that the Claimant had committed breach of terms of his contract in terminating his employment, be entitled to only the earning for the period of notice. In Ifeta v Shell Petroleum Development Company (Supra), Onnoghen JSC (as he then was)   intoned: where the court finds that the termination is wrongful, the proper measure of damages is what the employee would have earned within the period of notice required to properly bring the employment to an end and together with other benefits by way of overtime, rent subsidy etc in accordance with the terms of  employment.  

66.   What  the defendant  would be entitled to, as agreed by the parties in Exhibit C5, would have been one month basic salary. CC submits, that the Defendant’s reliefs (c), (g) and (i) are baseless, unfounded and insupportable. The Counterclaim, in view of Ifeta v Shell Petroleum Development Company (Supra), constitutes a clear abuse of Court process. Counsel knew that at most, the Defendant would be entitled to claim only salary for one month and still went ahead to file claims on behalf of the Defendant. The Defendant did not present any documentary support of his claim of gratuity assuming but not conceding that his dismissal is held to be unlawful. For that reason also, the claim for gratuity (Relief i) also fails.  

67.  Defendant’s Relief (d), (e) and (f)

CC argued  on Issue 3 above  that following the failure of the Defendant to prove all the elements of the torts of malicious prosecution and false imprisonment, the Defendant is not entitled to any relief therefor. The Claimant acted with reasonable and probable cause and did not make a false report to the police. The Defendant was not tried and was not acquitted. The Defendant was also given fair hearing. Accordingly, there is no legal basis whatsoever for the grant of the reliefs sought in this respect at all. Chief Clement Okafor v Anthony Abumofuani (2016) 12 NWLR (Pt.1525) 117 and Isheno v JBN Plc (2008) 6 NWLR (Pt.1084) 582 are obviously inapposite for the scenario of this case as the basis of the dicta was false report to the police. In the present case, there was no false or baseless report to the police, considering  their  earlier arguments.  Beyond reporting the matter to the police, the Claimant took no further steps and was not involved in deciding how the police managed the defendant when he was in their custody and had nothing to do with the endangerment, if any, of the life of the Defendant.

68.  Defendant’s Relief (h)

           CC submitted that at trial, Defendant could not confirm he had instructions nor approval to pay for Oluwakemi Oni’s flight to Abuja. This is bound to fail as there was no approval, his invitation to Abuja was necessitated by his wrongs against the Claimant, he cannot claim the funds even if he incurred the expenses. He cannot benefit from his own wrong and he who comes to equity must come with clean hands- Alade v Alic (Nig.) Ltd (2010) 19 NWLR (Pt.1226) 111 at 131

 

69.  Issue 6  Whether the Claimant has discharged the evidential burden of proof to entitle it to any of the reliefs claimed in this Suit

       Claimant’s Reliefs i and ii are correlated and hinged  on the fact that the Defendant indeed actively diverted the Claimant’s funds by reversing credit notes posted by the OGBS team to some specific dealers’ accounts, in connivance with Mr. Mathew Asuelimen and some colleagues of his, contrary to the terms of Exhibits C5 and C12. LCC  urged the court to grant these two prayers, holding that the Defendant breached his contract of employment and that his action is unlawful and illegal.

Claimant’s Relief iii  The Defendant reversed  funds and benefited financially from the scam called Condonation Scheme. The defendant admitted he received NGN20,000,000 (Twenty Million Naira) under the Scheme and received money gifts from Mathew Asuelimen for his roles on the Scheme. Accordingly, the Defendant should pay at least N20,000,000 to the Claimant.

Claimant’s Reliefs iv and v The Defendant did not deny there were reversal of funds to the detriment of the Claimant. Indeed, he admitted and explained how the reversal of funds worked in fair details see paragraph 22 of the Statement of Fact.  

We maintain that following the confirmation of the scam by the Defendant himself, the Claimant is entitled to restitution of N30,000,000 (Thirty Million Naira only).

In the same vein, cost follows events and the Claimant has incurred so much costs in instituting and prosecuting the suit. This is aggravated by the fact that the Defendant filed a Counterclaim. For the filing and active prosecution of the Counterclaim by the Defendant, claimant is entitled to   punitive costs. In A.C.B. Plc v. Ndoma-Egba [2000] 10 NWLR 229 at 245, CA held there must be justification for punitive cost, an award of costs should not be punitive, arbitrary and unreasonable.

 

70.       Courts decision

I have gone through the processes filed and the argument of Counsel as well as the testimony of witnesses of both parties, I observed their demeanour during trial and I would like to firstly, correct the defendant counsel’s submission in his final Adress  that CW1 testified that  he did not prepare Exh C 1. The records of the court shows that he clearly stated at trial that he prepared Exh C3 and submitted it to his line manager.

71.    The Claimant was employed vide a letter dated 17^th May 2017, Exh C5   and was confirmed 16^th November 2017 Exh D2 . It is trite Law that an employer/employee relationship is governed by the contract of employment, in  Amodu vs. Amode (1990) 5 NWLR (Pt. 150) 356; Baba vs. NCATC (1991) 15 NWLR (Pt. 192) 383; Layade vs. Panalpina World Transport Nigeria Limited (1996) 6 NWLR (Pt. 456) 544.

 

72.   The claimant is seeking 2  DECLARATIONS   which will be taken jointly, that the Defendant, by the roles he played in the Condonation Scheme, breached his contract of employment, Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption.   And that the reversal of the credit notes already posted by the OGBS team to some specific dealers' accounts, through the connivance of the Defendant and some other ex-employees of the Claimant, is wrongful, illegal and unlawful.

73.   Although much of modern employment law is contained in statutes and statutory instruments, the legal basis of employment (by whatever means) remains the contract of employment between the employer and the employee.   Exh C5 is the letter of employment and the bedrock of his employment which may give rise to a common law action for its enforcement or for damages in a case of breach see Iyere v B.F.F.M. Ltd.(2008) 18 NWLR (Pt. 1119) 300. Exh C5  has embedded, a provision that  “as a staff of the company, you are expected to be transparent, honest and capable of resisting any temptation that might come across you in the course of your duty”.  Was Exh C5 binding on the parties?  The court in FEDPOLY  Idah Vs Egbeke(2023)1NWLR(Pt.1865)227 held that in determining disputes arising from the determination of a contract of employment, the court must confine itself to the plain words and meaning which can be derived from the terms of the contract of service between the parties which provides for their rights and obligations.

74.   The claimant in para 11 of its SOF and para 8 of CW1 WSOO alleged that for several months, on the instruction of Mattew Asuelimen, the defendant and one Fanklin Odejinmah were reversing the credit notes initially posted by the OGBS team meant for the benefit of other dealers to the account of 2 dealers. Defendant testified during cross examination  that he carried out these instructions hear him, “he sends the schedule via  whatsApp  for me to put on excel and send same for posting”  during trial he said WhatsApp was a formal  mode  of communication in the company but he could not tell the court which instrument authorized the use of watsapp for official communication. That which has been admitted needs no further proof.  He further testified that at some point he became suspicious of the reversal instructions but  did not report his suspicion to anybody because “ I have no proof of any wrong doing”.

75.   The words in ExH C5 are crystal clear, defendant was  expected to be transparent, honest and capable of resisting any temptation that might come across him in the course of his duty. In Imonike V Unity Bank (2011) 12 NWLR (Pt 1262) 624, the SC held that words used in a contract of employment are not read strictly in the technical legal context in which a legally trained mind understands, but are read in the ordinary day-to-day application of the words in the relationship between the parties.  Was Gbenga Akinyemi therefore transparent? Was he honest ? did he resist the  temptation to reverse credit notes initially posted by the OGBS team for the benefit of  2 dealers against the spirit of the condonation scheme?  To my mind, his conduct  were far apart from the provisions of his employment contact. He breached the terms as stated in that contract of employment, I so hold.  

76.   This  brings the court to the issue of The Olam Code of Conduct 2020 (OCOC) &  Olam's Policy On Anti-Bribery And Corruption. Was defendant bound by this documents, the SC  in Idoniboye-Obu v NNPC (2003) 2 NWLR (Pt. 805) 589 held that a court has no jurisdiction to interpret or construe contractual documents more favourable to a party outside the terms and conditions provided in the documents. Parties are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives rise to the contractual relationship. (P. 650, paras. C-D)18.

 

HOWEVER, the CA in P.T.E. V WPC Ltd(2007) 14 NWLR (Pt. 1055) 478 held that, a contract may be contained in more than one document. When that is the case, the court is expected to examine all the documents passing between the parties and reach a conclusion from them, or from the conduct of the parties, whether they have reached agreement on all material points. (P. 495, paras. G-H).  Documents relating to contracts of employment must be read as a whole so as to grasp their import-Chukwumah v SPDC of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512 referred to]. (P. 555, paras. G-H)

77.    In para 5 of the SOD, defendant stated that “the 2 documents never formed part of the defendant’s terms of employment and were never given to the defendant up till the time he was purportedly dismissed”.  He stated further in para 6 that indeed there was a training in preparation to introduce the OCOC  between 2020 - to 2021,  but no document was given to him despite repeated demands. Under cross examination, he agreed there was a platform called “workplace” in the context of the language of the company and he visited it in the course of his employment.  Defendant was however  elusive to confirm that employees could access company documents including regulatory  documents, and that the OCOC was in the “workplace”, even when he was reminded that he  was meant to be an outstanding manager who should have known where company regulatory documents were domiciled. From the foregoing, this court is convinced that the defendant was aware of the existence of the OCOC since 2021 from the training conducted in preparation for its introduction and  the fact that it was placed on the “platform”.  The fact that  he had made repeated demands but was not given one does not mean it was never in existence. I so hold.

78.    What was the content of the OCOC  EXH C12?  The defendant under cross examination read to the hearing of the court S.A(2) (3) & (4) which is on the key commitments within the OCOC expected from employees; S. B which clearly spell out zero tolerance culture for any form of bribery and corruption and basically speaks on integrity and fair play at the heart of all relationship; to act fairly without fear or favour; Sections C to E specifies the reporting channel/ whistle blowing policy  for employees.

79.    Having stated the above, was he bound by the OCOC? If for a moment the court does not thinks so, it cannot be unmindful of the fact that over the years, the courts have developed rules of law which are automatically implied in a contract of employment unless excluded by statue or express terms of the contract. The 3 broad duties are duty to obey orders; duty of fidelity; duty of care and skills. Chioma k. Agomo: Nigerian Employment and Labour Relations Law and Practise ( 1^st Edition Reprinted 2012) in pg 121  states that in every contract of employment a term is implied that the employee will serve the employer in good faith and honesty. He is therefore not supposed to put himself in a position where his personal interest will conflict with that of his employer (because he will cause a breach of trust between him and his employer).  Lord Esher M. R. said it is impossible to suppose that a master would have put a servant into a confidential position of this kind, unless he thought that the servant could be bound to use good faith towards him-ROBB V GREEN (1895) 2 QB 315. In Ajayi V TEXACO (NIG) LTD (1987) 3 NWLR 577, it was held that sabotage of the employer’s policy was a breach of duty of fidelity. In other words, there is a term to be implied into a contract of service that each employee will not in obeying his lawful instructions  seek to obey them in a wholly unreasonable way which has the effect of disrupting the system, the efficient running of which he is employed to ensure- Secretary of State V ASLEF (No 2) (1972) 2 AER 949 @980.

80.    In the instant case, Gbenga Akinyemi was employed and had received commendations Exh D14, upward review of salary EXHs D1 & D4; and was assigned financial roles to carry out on behalf of his employer in a condonation scheme that had received the approval of top management. Did he owe his employer a duty of fidelity?  Can the court imply he had a duty to serve his employer faithfully? This is a fundamental obligation and any conduct inconsistent with that obligation may amount to a breach of contract. Even when the employee undertakes to obey orders permitted by the terms of contract it is subject to 2 qualifications- not to perform an illegal act and not to perform an act which would put him in danger.

81.   Gbenga Akinyemi obeyed the instructions of his National Sales manager to reverse the credit notes already posted by the OGBS team to 2 specific dealers' accounts this by all standards constituted a breach of duty by performing an illegal act in the course of obeying a lawful order. In Morrish V Hanlys (Folkestone) (1973) 2 All ER the court held that if the order is unlawful, he need not obey it.

82.  All the court is saying is that a community reading of the OCOC does not depart from the common law rules of implied terms of a contract. However, having examined the conduct and role of the defendant he failed in his duty of care and also breached the OCOC.  The claimant has been able to prove that the Defendant, by the roles he played in the Condonation Scheme, breached his contract of employment, Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption. And that the reversal of the credit notes already posted by the OGBS team to some specific dealers' accounts, through the connivance of the Defendant   is wrongful, illegal and unlawful. I so hold. Relief I & 11 succeeds.

 

83.   The Claimant is seeking an Order directing the defendant to refund the sum of N20Million Naira which he received under the condonation scheme. Para 17, 18 &19 of the SOF alludes to the Panel of enquiry EXH C13 and Police Reports EXH 11 which found that the defendant was involved in the fraud by his conduct. The Defendant in his SOD vehemently denied he appeared before a panel of inquiry, he stated that the Microsoft team call did not invite him to answer any criminal allegation against him, and even before the police, he made available every suspicious information in his custody regarding the scheme and the two bodies could not trace any monies to him.

84.   CW1 in his WSOO said the claimant tried estimating the size and scale of fraud by putting together the promo, quarterly discount volume slabs and several other kinds of scheme run by Umesh Kain and Mattew  Asuelimen.  During trial he tendered EXHC3 a computer-generated copy of the excel sheet detailing the “estimated” fraud. The police report found that the defendant was not aware of the illegal additional special rebate scheme, but was only used to process and post the special rebates into the distributors accounts and were not at any occasion given any share of the proceeds. When asked  how and when EXH C3  was collated, CW1 said it was after the whistle blower informed the company in 2022 and with the available records in the office.  CW1 also could not confirm to the court if EXH C3 was submitted to the police in the course of its investigation.   CW2 in an attempt to establish the amount  the defendant benefited also referred the court to EXH C11 para 5.1.18 which found that the defendant received between  N400 thousand Naira & N500 thousand naira monthly. All that is before the court is; an estimated generated excel spread sheet collated after a dubious whistle blower (who had himself benefited millions of Naira though blackmail) had informed the company of the fraud. The left over data and unsatisfactory available information in the company was used to generate Exh C3 . The court is mindful of para 12 of  CW1 WSOO   where he deposed that Umesh Kain  Head of the condonation scheme & Vice President of the company before his resignation and disappearance had “made sure the relevant rebate related mails were deleted by Mattew Asuelimen”.

85.   This in itself is clearly speculative, going by the facts and testimonies before this court, I do not find any cogent, credible and reliable evidence in proof of this assertions to grant an Order directing the defendant to refund N20 Million Naira which is the total sum received by the defendant under the condonation scheme. This court cannot work with assumption and neither does the court deal with or dwell on claims based on speculations see JITTE V Okpulor (2016) 2 NWLR Pt 1497  & Ikenta Best (Nig.) Ltd v A.G., Rivers State (2008) LPELR-1476(SC) where it was held that “speculation has no place in our Courts…” Accordingly, relief ‘iii’ fails.

 

86.   The claimant’s  fourth relief is for 30,000,000 (Thirty Million Naira only) for GENERAL DAMAGES in restitution to the Claimant following the loss suffered by the business in view of the  current exchange rate.  In Royork Nigeria Limited v. Attorney General and Commissioner for Justice Sokoto State & Anor (2021) LPELR – 55023 (CA), the Court of Appeal held per Idris, JCA: that “The grant of general damages is purely discretionary. It is purely within the prerogative of trial Court Judge who after considering the entire facts of the case and evidence tendered in proof of same, can decide the sum of money that will be awarded as general damages. However, we all know that the exercise of discretion by every judge must be done judicially and judiciously. The wrong complained in this suit  is the  heavy financial loss suffered by the company  under the condonation scheme. The defendant one way or another   contributed to the loss suffered by the company. What the company lost by his conduct cannot be ascertained as stated earlier but there was a loss occasioned by his conduct. In consideration of the entire facts of this case, and in exercise of my  discretion I make an order as to award of N1 Million Naira as general damages in favour of the claimant.

87.   The defendant filed his counterclaim along with his SOD he sought for the following reliefs:

a.      A DECLARATION that the Counterclaimants suspension by letter dated August 19,  2022 is unlawful, null and void.

 

b.     A DECLARATION that the purported dismissal of the Counterclaimant by the Claimant by latter dated October 25, 2022 is unlawful, null and void.

 

c.      AN ORDER directing that the Claimant pay the full salaries and other entitlements of the Counterclaimant from August 1, 2022 until this suit is determined at the rate of N353,950.10 (THREE HUNDRED AND FIFTY THREE THOUSAND, NINE HUNDRED AND FIFTY NAIRA AND TEN KOBO) per month.

 

d.     N100, 000,000 (ONE HUNDRED MILLION NAIRA) AS DAMAGES for false imprisonment of the Counterclaimant by the Claimant at the Gabasawa Police Cell, Kaduna from August 4 till August 17, 2022.

 

e.      N100, 000,000 (ONE HUNDRED MILLION NAIRA) AS DAMAGES for the malicious prosecution of the Counterclaimant from August 8 till August 17, 2022 at the Kaduna Magistrate Court.

 

f.       N200,000,000 (TWO HUNDRED MILLION NAIRA) AS DAMAGES to the Defendant for the endangerment of the life of the Counterclaimant by the Claimant on August 4,  2022 when the Claimant procured the illegal arrest of the Defendant and made the Defendant to be taken along the Abuja-Kaduna highway at night arriving in Kaduna at 9.30pm.

 

g.      N15,000,000 (FIFTEEN MILLION NAIRA) being the legal cost of the Defence and counterclaim filed by the Defendant/ Counterclaimant in this suit

 

h.     N151,000 (ONE HUNDRED AND FIFTY ONE THO the provisions of the OCOC USAND NAIRA) being the ticket cost for the flight of the Counterclaimant and Oluwakemi Oni to Abuja on August 4, 2022.

 

i.        AN ORDER DIRECTING that the gratuity of the Counterclaimant be calculated at the conclusion of this suit and the sum due paid to the Defendant.

 

88.   On relief (a): The D/CC has argued that  he cannot be  suspended without pay pending investigation. The suspension was based on an allegation of breach of the OCOC after the police report had exonerated him, in Unreported Suit between Edwin Ezechukwu V OHHA Microfinnace Bank Suit No NICN/EN/02/2020 delivered on 21/JUNE/ 2024. Hon Justice O.O. Arowosegbe stated that the modern jurisprudence as ushered in by the Third Alteration Act  is that suspension without pay pending investigation is totally forbidden, even if there is ample provision for that in the terms and conditions of employment. The Learned Jurist went further to state that Chitty on Contracts is very explicit on this, there is no implied contractual right on the part of the employer to suspend without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract agreement of the parties. From the above, it is clear there is a presumption in the employee’s favour that he had a right to his salaries during suspension until it is shown that there was a term of the contract that provides otherwise. And proof in this respect must come from the defendant who claimed there is, by tendering the terms and conditions of service and showing where that right is. Right to salary is the most fundamental right in employment contract, as it is the consideration for which the employee enters into the contract and as such, could not be brushed aside whimsically. That is what the Court of Appeal underscored in NBC Plc v. Edward (2015) 2 NWLR (Pt. 1443) 201 at 235, F-G when it said: “An employee whose employment has not been terminated is entitled to his salary and emoluments…” It simply means, without anchor for it in the employment contract, the employer cannot unilaterally impose suspension without pay in the suspension letter.  In the instant case crown flour mills in its offer letter EXH D6 did not provide for disciplinary procedures however in EXH C12 OCOC in Sec A 3 “What is Expected of you? bullet point 5 reads “we expect you to: recognize that any employee found to be contravening the code will face disciplinary action and could lose their job”.

89.   Collins English Dictionary defines Disciplinary action as “punishment of some kind meted out to a member of a profession or organization who has committed a breach of a code of conduct etc. while the Cambridge Business English Dictionary defines it as a method for dealing with a worker who causes problems or does not obey company rules. It is clear that both documents which were tendered did not provide for suspension or disciplinary action without pay. To creatively brush aside the right of employee to his salaries by casually stating so in the suspension letter without any prior anchor in the employment contract is a fundamental breach of the contract. In view of the above this court is satisfied that the defendants suspension without pay was unlawful he is therefore entitled to his pay during the period of  suspension 19^th August 2022 to 0ctober 26 2022. I so hold.

90.  On relief (b): The D/CC had argued that his dismissal  by a letter dated October 25, 2022 is unlawful, null and void.

Due to the criminal nature of the allegation to which he had been exonerated the law is that once an employee is dismissed, the employer must justify the dismissal. The duty to justify the dismissal lies on the employer’s argument that the termination of the claimant’s employment was as a result of  the breach of  the OCOC. This explanation  of breach of  the provisions of the OCOC such as S. B 2.3 (Bribery and corruption) support the dismissal of the claimant as dismissal connotes gross misconduct, not poor performance. This court had earlier held that by the role the counterclaimant played in the condonation scheme the claimants ’s letter  of dismissal is lawful.

91.   In UNREPORTED Suit  NO NICN/ABJ/ 28/2020 between Mohammed Hamza V DANGOTE FLOUR MILLS  BEFORE HON. JUSTICE O.O. OYEWUMI (now JCA) delivered on 22/2/2022,  CBN v. Dinneh [2021]15NWLR (Pt 1798)91, was referred to  and I quote “the apex Court held that where there is an allegation of misconduct amounting to crime against an employee, before dismissal of such an employee, he should be tried and convicted by the Court as it is the Court that is vested with jurisdiction to try such criminal offences. As such, it is beyond the power of an administrative panel to try and convict such a person. In the instant case, the claimant was accused of stealing bags of wheat which is a criminal offence. Thus, he was rightly reported to the Police and subsequently tried in a Court of law. The defendants would have been wrong if they without criminal trial assumed jurisdiction over same. The pertinent question that should be asked in this case is what will happen in the event that an employee is discharged. Put differently, can the discharge of the claimant on a no case submission stop the defendants from terminating his employment? In other words, are the defendants obligated to reinstate the claimant after the discharge on a no case submission? I do not think so. In the case of Ojo v. Okitipupa Oil Palm Plc, (2001) 9 NWLR PT 719 696-697, Paras H-A, the Court held that a discharge of an accused employee on a no case submission may not necessarily stop an employer from terminating his appointment or dismissing the employee if the employer comes to the conclusion that there is more to the whole matter than the criminal prosecution and the subsequent discharge. This to me is in consonance with the principle that in a master servant employment as in this instant an employee even though willing cannot be foisted on an unwilling employer. Thus, an employer   may still terminate the employment of its employee even after the discharge on a no case submission where it comes to the conclusion that there was more to the whole case than the discharge.” This court is equally convinced that the dismissal of the D/CC was  lawful, by Exh D6 the offer letter tendered by the claimant has embedded in it the procedure for termination after confirmation. Part B(ii) “by the company without notice or payment in lieu of notice in the event of serious misconduct…”. The police report exonerated Ggenga Akinyemi of the criminal charges but his employer had a right to dismiss him from the employment. I so hold.

92.   On relief (c )  the court recalls that in relief a, it was resolved that  the Defendant is entitled to his pay during suspension this follows that he is to be paid his full salaries and other entitlements   from the date of his suspension  until the effective date of his dismissal. Relief C succeeds

93.   On reliefs (d) (e ) &(f)  for  N100, 000,000   AS DAMAGES for false imprisonment  August 4 till August 17, 2022;  N100, 000,000 AS DAMAGES for the malicious prosecution &  N200,000,000 AS DAMAGES   for  endangering his life on August 4,  2022   along the Abuja-Kaduna highway at night arriving in Kaduna at 9.30pm.   

94.   In Onyedinma v Nnite (1997) 3 NWLR (pt493)333 the CA held false imprisonment to mean imprisoning or restraining or detaining a person falsely or unlawfully or wrongfully. If the person doing or causing the imprisonment  has the right to do so then the imprisonment cannot be false or unlawful or wrongful. An action for false imprisonment does not lie only against a party who physically commits the tort. An action lies against a party who is directly or actively instrumental to the commission of the tort. Therefore, to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him. -Mandilas & Karaheris Ltd v. Apena (1969) NMLR 199 (P. 346, paras. D-E). In the instant case the arrest and subsequent detention of the defendant by the Nigerian Police in the cell in Kaduna are facts  not in dispute, the report by VINOD KUMAR as testified by CW2 set the law in motion against the defendant. The parties did not present to this court the reason why bail application was not granted after the first sitting on the 8^th August and matter was subsequently adjourned to the 18^th of which the defendant was discharged on the 17^th. The court cannot work on assumptions on why defendant was denied bail, it is not the judicial function of a judge to embark on an unguarded voyage of discovery for facts which are not placed before it Per TOBI, J.C.A.  Ajikawo V ANSALDO Nig Ltd   [1991] 2 NWLR. As held in Onyedinma v Nnite (supra) if the person doing or causing the imprisonment   has the right to do so then the imprisonment cannot be false or unlawful or wrongful. I so hold. Relief d fails

 

95.   Malicious prosecution is a civil wrong which enables a person who is the subject of groundless and unjustified Court prosecution proceedings, to seek a civil claim for damages against his prosecutor. The question to my mind is Was Olugbenga Akinyemi  maliciously prosecuted by his employers without reasonable and probable cause and was he given a fair hearing? In other words was there a reasonable ground for the complaint made against the Defendant? He asserted vide paragraphs of his pleadings that his employers set the law in motion against him which resulted in his eventual prosecution before a Magistrate Court but which proceedings ended in his favour.  Defendant in his WSOO stated that when informed of the fraud in Abuja he was asked to write a statement which he did and stated all he knew about the condonation scheme and how at some  point he got suspicious of the instruction from NSM  but did not report. CW2 under cross examination  testified that VINOD KUMAR the head of Kaduna Branch office lodged the complaint at the police station on 3^rd August 2022 following the fraud alert by the whistle blower, the court is mindful that  there were unchallenged facts that all the details of the  condonation scheme details had been deleted by Umesh Kain before his resignation and disappearance into thin air.  From a careful consideration of the facts and  evidence on record, there was an honest belief by the claimant which cannot constitute malice.   The claimant was left with no choice but to lay the complaint at the police station which is the only institution with the  mandate to investigate  such allegations.   The information about the fraud was reasonable grounds on the part of  the claimants to make a complaint before the police. The Claimant/Defendant (crown Flour Mills) on their part vide paragraphs 9 and 10 of their   statements of defence to CounterClaim and para  2 d said  the investigation and prosecution was entirely driven by the police.  Thus, upon the conclusion of investigation, the Police preferred a charge against the D/CC based on the independent investigation conducted by the Police. They Claimant/defendant could not be liable for the actions of the IPO and other officers of the Nigerian Police Force. Besides in Fawehinmi V Akilu (1987) 4 NWLR (Pt. 67) 797  the Supreme court held  that the law of Nigeria has given every person a right to prevent the commission of a criminal offence and where an offence is committed, to lay a criminal charge against any one who he sees committing the offence or who he reasonably suspects to have committed the offence in order to uproot crime from the Nigerian society.   

96.   In the case of John Holt Plc v. Allen [2014]17 NWLR (Pt 1437)443@471, Para F, the Court held that a reasonable and genuine complaint made bona fide, to the Police that a crime has been committed cannot ground an action for malicious prosecution. In the absence of malice and lack of reasonable cause on the part of the Claimant/Defendant to Counter Claim I am of the view that the case of the defendant/counterclaimant  on malicious prosecution cannot succeed without the proof of malice against the defendants. From the facts, exhibits tendered  and testimonies before this court the claimant /Defendant has been able to show that the company  (Crown Flour Mills) had reasonable and probable cause to make the complaint to the police. I so hold. Thus, relief E fails.

97.  Was the life of the D/Counterclaimant endangered on August 4,  2022   along the Abuja-Kaduna highway at night when he  arrived in Kaduna at 9.30pm. The testimony of CW2  that  she has travelled the Abuja -Kaduna road  severally and particularly in 2022 & it was notorious for banditry and kidnapping, and there was always police patrol on that road  is enough testimony about the notoriety of that route. The Claimant argued that they only laid a complaint to the police and the way and manner the police went about their investigation was not part of their instruction. The court is  not convince that they had no idea how the defendants arrived in Kaduna. The court therefore agrees and is convinced  that  Crown Flour Mills failed in its  duty of care to protect the life of her employee on that fateful day. Relief f succeeds and I award cost of  N100.000.00k (one hundred thousand Naira only ) as damages I so hold.

98.    Relief (g)  is for cost of litigation at N15, 000,000.00 (Fifteen Million Naira) only. This relief which is in the nature of special damages is expected to be specially pleaded and proved strictly. Also see Chief Olusola Ogunsola and Anor V. Mr. Agboola Blaize (2023) LPELR-60674(CA) where the appellate Court held at pages 20-21, paras F-D of the report that, “The appellants had also claimed the sum of N500,000.00  being the sum expended by them as legal fees in Suit No ID/732M/2006 in regaining possession of the property in issue, and, the sum of N750,000.00 being cost of this action. The lower Court rightly surmised that these claims were in the nature of special damages, which must be specifically pleaded, itemized and strictly proved before being awarded by the Court- Onyiorah v. Onyiorah & Anor (2019) LPELR-49096(SC), Daniel Holdings Ltd v. UBA Plc (2005) LPELR-922(SC).

99.  I have gone through the entirety of the Defendant/Counterclaimant’s pleadings and the witness statement on Oath of DW1 and not seen where this 15 Million Naira has been  specifically pleaded, itemized and strictly proved.  cost of legal representation incurred by one party is not recoverable from another as that would be unethical and constitute an affront on public policy. see Guinness (Nig.) Plc. v. Nwoke [2000] 15 NWLR page 150 paras A-D. Having not specially pleaded and testified with respect to the claim, I am of the considered view that D/CC has not satisfied the requirement of proof in the circumstance. Relief ‘g’ is therefore refused for want of proof and fails accordingly.

100.         With respect to relief ‘h” being a claim N155 Thousand Naira for the cost of flight ticket for the Counterclaimant and Oluwakemi Oni to Abuja on August 4, 2022. The Claimants have denied it gave instructions or approval to Defendant/Counter claimant  to buy the tickets, During cross examination, Defendant was asked if he got approval to pay for the ticket and he said there was no approval for him to buy tickets from his personal funds. Neither did he tender exhibits to show that he applied to the office for the funds and was awaiting approval before purchasing the tickets. D/CC assumed that he would be refunded and bought 2 plane tickets without Applying for and getting approval, in the circumstance the court is constrained to dismiss this relief H and it fails.

101.         Relief “I” is an order for  the gratuity of the Counterclaimant to be calculated at the conclusion of this suit and the sum due paid to the Defendant. Claims for gratuity,   are  special damages and so caught up by the special rules made in that regard. The burden of proving entitlement to gratuity benefits rests on the D/CC. He led no evidence to prove that his contract provides for payment of gratuity.  There is nowhere in the exhibits tendered that a provision is made for payment of gratuity.  The right to gratuity  is not automatic, and is dependent on the contract of employment and conditions of service.   Reliefs ‘I’ therefore  fails for lack of proof. 

102.         In all, the claimant’s case succeeds in part, accordingly and for avoidance of doubt, the orders of the Court are as follows:

 

a)     IT IS DECLARED that the Defendant, by the roles he played in the Condonation Scheme, breached his contract of employment, Olam code of conduct 2020 and Olam's policy on Anti-bribery and corruption.

b)    IT IS DECLARED that the reversal of the credit notes already posted by the OGBS team to some specific dealers' accounts, through the connivance of the Defendant and some other ex-employees of the Claimant, is wrongful, illegal and unlawful.

c)     IT IS ORDERED that the Defendant shall within 30days of this judgment pay to the Claimant the sum of N1,000,000.00 (One  Million Naira) as general damages in restitution for the loss suffered by the Claimant in business.

 

103.         Equally, the claims of the Defendant/Counterclaimant succeeds in part, and for clarity, the orders of the Court are as follows:

 

a)     IT IS DECLARED that that the Counterclaimant’s suspension by letter dated August 19, 2022 is unlawful, null and void.

b)    The Claimant/Defendant to the Counter-claim is ordered to pay the Defendant/Counterclaimant his salaries from the date of his suspension till the date of his dismissal at the rate of N353,950.10 (THREE HUNDRED AND FIFTY THREE THOUSAND, NINE HUNDRED AND FIFTY NAIRA AND TEN KOBO) per month.

c)     The Claimant/Defendant to the Counter-claim is ordered to pay the Defendant/Counterclaimant the sum of N100,000.00 (One Hundred Thousand Naira) as damages for the endangerment of the life of the Counterclaimant by the Claimant on August 4, 2022 when the Claimant procured the illegal arrest of the Defendant and made the Defendant to be taken along the Abuja-Kaduna highway at night arriving in Kaduna at 9.30pm.

                                                   

d)    All other reliefs of the Claimant and the Counterclaimant not enumerated in the preceding paragraphs fail and are accordingly dismissed. I so hold.

e)     Failure to pay these sums as ordered means that the sums shall attract

         10% simple interest per annum until fully paid.

 

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

 

Hon. Justice Joyce A. O. Damachi

Judge

 

 

Claimant Counsel: S.I. Onuka

Defence Counsel:  W. Ogunde (SAN)

Grace Bassey (Mrs.)