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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: JANUARY 14, 2016 SUIT NO: NICN/LA/329/2013 BETWEEN Olayiwola Olaniyi - Claimant AND 1. Linda Manufacturing Co. Ltd 2. Solpia Nigeria Ltd - Defendants REPRESENTATION M. A. Akinsola with Femi Adisa-Isikalu and Alex Onumajulu for the Claimant. C. E. Anaenugwu with Nicholas Muotanya for the Defendants. JUDGMENT The Claimant by his General Form of Complaint dated and filed 21/6/13 approached this Court for the following reliefs - 1. An Order of declaration that the Claimant’s purported dismissal was illegal malicious, devoid of fair-hearing therefore null and void. 2. An Order of declaration that the Claimant was wrongly dismissed. 3. An Order that the publication of the dismissal letter issued to the Claimant on the company’s notice board amounted to libel and as such defamed the character of the Claimant. 4. A declaration that the Claimant is entitled to the provision of section A – 3A SOLPIA Nigeria Ltd employers Handbook as terminal benefits. 5. The sum of =N=291,515.00 as terminal benefit and interest in the sum of =N=291,515.00 at 21% from the 7th of December, 2009 until judgment is delivered and thereafter at 21% until judgment is fully paid. 6. The sum of =N=27,630,000 as a month’s salary in lieu of notice and interest in the said sum of =N=27,630.00 at 21% from the 7th of December, 2009 until judgment is delivered and thereafter at 21% until judgment sum is fully paid. 7. Sum of Twenty Five Million Naira being damages for wrongful dismissal and defamation of Claimant’s character. 8. Cost of this action. The accompanied the writ with all processes as mandated by the Rules of Court. By his amended statement of defence dated 18/6/14, the Defendant denied the claims, filed his defence processes, frontloaded all documents as required and prayed the Court to dismiss the claims of the Claimant. The hearing of this case commenced on 11/9/13 when the claimant opened his case and testified as CW1. Claimant adopted his witness statement on oath dated 21/6/13 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted and marked as Exh. OO1 - Exh. OO5. The case for the Claimant as put forward by his witness deposition filed is that he was employed by the 1st Defendant as driver/mechanic in September, 2002 vide a letter of 21/9/02 issued by 1st Defendant and was later transferred into the 2nd Defendant as a sister company to 1st Defendant and identity card was issued to him in respect of that; that his appointment was confirmed by a letter of 25/2/08 issued by the 2nd Defendant; that his employment with the Defendants and other staff were guided by SOLPIA Nigeria Ltd Employees Handbook with stipulated terms and conditions of employment and rules and regulation and general conditions of employment; that to his chagrin, he received a dismissal letter dated 4/12/09 in which he was dismissed as a result of serious misconduct of disloyalty, aiding to commit crime and failure to report misconduct committed against the Company in connection with the Company’s business and that in terminating his apartment, the Defendant further embarrassed him when the copy of said dismissal letter was published in the Company’s notice board where other staff and visitors to the companies and their customers were reading and seeing him as a dubious person. Under cross examination, the Claimant testified that he was employed by the 1st Defendant in September 2002 and transferred to the 2nd Defendant in 2008; that he was not being owed by the 1st Defendant as at the time he was transferred to 2nd Defendant; that he was told to resume at the 2nd Defendant immediately; that 1st Defendant did not terminate his appointment and that he did not appeal to the 2nd to commute my Dismissal to termination. The witness added that he was working with New Generation Investment Company before he joined the 1st Defendant; that he was not sacked by the said company for dishonesty; that his primary duty with the 2nd Defendant was driving of trucks and delivery of goods to customers; that he was always accompanied by a Salesman when on assignment; that one Kolawole Oladimeji the Salesman was with him on 8/9/09 when he went to deliver goods at Balogun market; that his duty was not to contact customers directly; that Salesman does that; that he does not have customers telephone numbers. According to the Claimant the name of the Union he championed is the National Union of Rubber and Chemical Footwears affiliated with the Nigerian Labour Congress; that he brought the Union to the company; that the aim of the Union is not to work against the interest of the Defendants; that he knows Esther as a Salesgirl and also a member of the Union; that the activity of the Union was not to carry goods of the Company and supply to non-customers of the company; that the Company never accused him of diverting their goods to non-customers; that he was dismissed by 2nd Defendant; that he was not issued query or told anything; that since he has been working with the Defendants he never received query; that since his dismissal he has not entered the Company’s premises; that on 8/9/09 he did not carry goods of the Company to another customer; that he is not a Salesman; that only Salesman does that; that he did not make any attempt to enter the Company and that the Company has camera which can prove that. Claimant also called one Kolawole Oladimeji as his CW2. CW2 adopted his witness deposition dated 13/9/13 as his evidence in chief. He did not tender any exhibit. Under cross examination, DW2 witness testified that he had been a Car Dealer for 3 years; that Claimant and himself used to work for the 1st Defendant before they were sacked; that he was sacked 30/9/09 with the Claimant; that he is not in Court to challenge his sack by the Defendant; that Claimant and himself were sacked for the same reason; that he did not challenge his sack by the 1st Defendant because his fiancée was working with the 1st Defendant then; that when his Lawyer wrote to the 1st Defendant Mr. Victor Eluwa – Admin. Manager and Mr. Diamond Joelq Operations Manager threatened to sack his fiancée should he take the 1st Defendant to Court; that he was not aware of the incident that took place at Balogun Market between the Claimant and customers of the Defendant and that he is not aware Claimant was queried for that incident. The Defendants opened their defence on 21/4/15 and called one Prince Azubuike Onyekwelu as its lone witness. DW1 adopted his witness deposition as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted as exhibits and marked as Exh. D1 - Exh. D5. The case of the Defendant as revealed in the witness statement on oath of DW Prince Azubuike Onyekwelu, which was adopted as evidence in chief on 21/4/15 is that the Claimant was involved in a serious case of misconduct as a staff of the 2nd Defendant by aiding commission of crime and failure to report misconduct committed against the company; that the Claimant was also involved in the criminal act of conspiracy with other members of the 2nd Defendant to defraud the 2nd Defendant of goods worth over N5,000.000 (Five Million Naira).; that the Claimant in concert with other members of staff dismissed with him has been stealing from the company until they were caught on the 8/9/09 by one of the customers of the company, Mr. Emmanuel Otuonye, trading in the name and style of Blackmoore; that following these facts, the Claimant was issued a memo to explain the circumstances surrounding the allegation and was given opportunity to defend himself and he refused to react to the allegations against him and that the Claimant was dismissed for his willful refusal to react to the memo. Under cross examination, DW1 testified that he is a Legal Practitioner and employed by the Defendant in 1999 and was issued a letter of employment then; that both Defendants are sister Companies under one Managing Director; that he does not know how much the Claimant was paid; that Defendants conducted internal investigation that led to the discovery of the fraud committed by the Claimant; that Police were not invited into the case; that it is not in all cases that Defendant obtained acknowledgement when correspondences are delivered; that Query was served by the Administrative Manager though acknowledgment was not obtained; that Union was established in 1999 in the 1st Defendant while it was established in 2009 in the 2nd Defendant. The Defendant filed a 10-page final written address on 7/5/15. In it learned Counsel set down the following 2 issues for determination - 1. Whether the dismissal of the Claimant by the 2nd Defendant is justified in the circumstance. 2. Whether the Claimant is entitled to the reliefs sought. Arguing issue 1, learned Counsel submitted that from the pleadings filed and the evidence led it is obvious that the relationship between the Defendant and the Claimant was a mere master and servant; that in such a relationship, a contract of service is the bedrock upon which the Claimant may found his case; that he succeeds or fails on the terms of same and that in claiming that his dismissal was illegal or wrong the Claimant failed to plead and rely on the contract of service between him and the Defendants. Learned Counsel submitted, relying on Dudusola v. Nigeria Gas Company Limited (2003)10 NWLR (Pt. 1363) 423 that in a master/servant relationship, the master has an unfettered right to terminate or even dismiss the servant and that the motive in exercising the right does not render the exercise of the right ineffective. Counsel submitted that Claimant's dismissal was preceded by a Query issued by the Administrative Manager of the 2nd Defendant - Exh. D4 which the Claimant failed to react to; that by giving the Claimant query Claimant could not be heard to complain not being heard relying on Rasaki Abiola Ekunola v. C.B.N (2003)15 NWLR (Pt. 1377). Counsel submitted that the mobilisation of existence and effectiveness of Trade Union in the 2nd Defendant by the Claimant as clearly admitted by the Claimant amounts to gross misconduct citing UBN Plc v. Soares (2012)11 NWLR (Pt. 1312) 550 at 575 & Osakwe v. Nigerian paper Mill Limited (1998) 10 NWLR (Pt. 568) 1. Counsel urged the Court to resolve this issue in favour of the Defendant. On issue 2, Counsel submitted that having regards to the pleadings and evidence before the Court, the Claimant is not entitled to the damages claimed because he was rightly dismissed, citing Ekunola v. CBN (supra) where the Supreme Court held that where the employee's dismissal is founded on the allegation of gross misconduct, the employee is not entitled to any notice or salary in lieu of notice. Learned Counsel further submitted that if the Court finds in favour of the Claimant that his dismissal was wrongful that the measure of damages is the amount of money due to the Claimant in lieu of notice which is the sum of =N=27,630. Counsel cited UBN Plc v. Soares (supra) & Western Nigeria Development Corporation v. Abimbola (1966)All NLR 150 at 152. According to learned Counsel, the Claimant's claim for the sum of =N=291,515.00 as terminal benefits and interest on the said sum at 21% from 7/12/09 until Judgment is delivered cannot be sustained as same was not proved by the Claimant at the trial. In much the same vein, learned Counsel submitted that the claim for damages in the sum of Twenty Five Million Naira for wrongful dismissal and defamation of character will also fail for failure of the Claimant to prove same. Learned Counsel prayed the Court to refuse and dismiss all the claims of the Claimant. The final written address of the Claimant was filed on 19/6/15 with the following 4 issues set down for determination - 1. Whether the 1st and 2nd Defendant though a separate company work as one entity. 2. Whether the Claimant's dismissal was wrongful and illegal. 3. Whether the publication of the dismissal letter on the Notice Board of the company amounts to libel. 4. Whether the Claimant is entitled to the damage claimed. On the first issue, learned Counsel submitted that the circumstances of this case constitutes a special one. Counsel referred to paragraphs 2, 3, 4 and 5 of the statement of facts and submitted that the available evidence point to the fact that both defendants operate under the same management, employ labour either way and cannot deny recognition to any of its staff. Counsel cited Joseph Odetoye Oyeyemi v. Commissioner for Local Government, Kwara State & Ors (1992)2 SCNJ 266. Learned Counsel, citing Linus Onwuka & Another v. R. I. Omogui (1992)3 SCNJ 98, urged the Court to hold that both Defendants are the employers of the Claimant and as such are jointly responsible. Respecting issue 2, Counsel pointed out that both parties agreed that Employees Handbook of Solpia Nigeria Limited regulates the relationship between the parties. Counsel cited NITEL Plc v. Akwa (2006)2 NWLR (Pt. 964) 391 & Nigeria Gas Co. Limited v. Dudisola (2005)18 NWLR (Pt. 957) 292. According to learned Counsel the reason given for summary dismissal of the Claimant is contained in paragraphs 8, 9, 10, and 11 and rule A-38 of the Employees Handbook. Counsel submitted however that the Defendants failed to comply with Rule A-1, A-2, A-8 and A-9 before applying the provision of Rule A-38. Learned Counsel submitted that the law is trite that where an employee is dismissed for specific misconduct, the dismissal cannot be justified if the employee is not given adequate opportunity to defend the alleged misconduct citing Nigeria Oil Mills v. Daura (2001)1 NWLR (Pt. 639) 78, Arinze v. First Bank (2000)1 NWLR (Pt.639) 78 & Uzoho v. Task Force on Hospital Management (2004)5 NWLR (Pt. 867) 621. Learned Counsel urged the Court to hold that the Defendant failed and neglected to follow due process in dismissing the Claimant. The third issue for set for determination by the Claimant is whether the publication of the dismissal letter on the notice board of the Company amounts to libel. Counsel adopted his submission regarding issues 1 and 2 and referred to Exh. C5. Learned Counsel referred to paragraphs 12, 13 & 14 and the imputations which the letter of dismissal conveyed; that the words published against the Claimant showed him to be a dishonest person or somebody wanting in gratitude and same has been held to be a libel, citing Austin v. Culpepper (1684)2 Show 313; that the Defendants did not put up any defence but merely state that they did not publish the libelous letter on the notice board. Counsel submitted that it is a fact that the letter was published on the notice board of the Defendants and that an action for defamation lies for the mere distribution of a defamatory document knowing it to be so and that the distribution of the photographs of the Claimant on leaflets at the Kano City International Airport constituted publication, citing Abubakar Rimi v. Sabo Bakin Suwo & Ors FCA/K/B/83. Counsel submitted that the words of Exh. C5 constituted defamation of the Claimant's character and has passed the test of objective man. Counsel urged the Court to so hold. On the 4th issue which is whether the Claimant is entitled to the damages claimed, Counsel submitted that the measure of damage recoverable in such a case is determined by what the employee would have earned over the period of notice required to properly determine his contract of employment and not salary for a long period of years, citing Chukwumah v. Shell Petroleum (1993)4 NWLR (Pt. 289) 512. Counsel submitted that by Rule A-33 & A-34 of Exh. 005 the benefit of disengagement for employee who have put in service of 6 - 9 years is 1 and half months pay for every computed year of service; that Claimant was employed in September 2002 and had his employment terminated on 4th December 2009, a period of over 7 years and that the Claimant is entitled to the sum of Two Hundred and Ninety One Thousand, Five Hundred and Fifteen Naira as indicated in paragraph 18e and also entitled to one month in lieu of notice as stipulated in section A-34c as claimed in paragraph F. Counsel further submitted that where wrongful dismissal or termination of employment is as a result of alleged malpractice such a determination carries with some stigma of the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of the required notice, citing Ezekiel v. Westminster Dredging Limited (2009)9 NWLR (Pt. 672) 248 & British Airways Makanjuola (1993)8 NWLR (Pt. 311) 276. Finally, learned Counsel prayed the Court to find in favour of the Claimant as per his claims. This Judgment was initially slated for delivery on 3/12/15. It was not ready for delivery on that day. Hence it was adjourned till today. I have read all the processes filed by Counsel on either side in this case. I listened with attention to the testimonies of witnesses called at trial I considered, reviewed and evaluated all the exhibits tendered and admitted in this case as well. Having done so, I here set down the following lone issue down viz: whether the Claimant has proved his case to be entitled to any or all the reliefs sought, for the just determination of this case. The position of the law remains that he who asserts must prove same to be entitled to a grant of relief or reliefs sought. The proof required in this context is proof by credible, cogent and admissible evidence, see A.G. Anambra State & Ors. v. Ezeme & Ors. (2014) LPELR-24342. The first relief sought by the Claimant is for a declaration that the Claimant's purported dismissal was illegal, malicious, devoid of fair hearing and therefore null and void. An employer has an inherent power to discipline his employee. One of the different methods by which that power is exercised is through dismissal of an employee by the employer. The others are through issuance of queries, warning, suspension or termination of employment. The fact remains that dismissal is the maximum punishment an employer may met out to an employee. Dismissal is akin to capital punishment in criminal proceedings. It also carries some stigma along with it. Dismissal is the maximum punishment that could be met to an employee. It is akin to capital punishment in criminal trial. Besides, dismissal carries with it infamy and stigma in addition to the fact that a dismissed employee is denied of any form of disengagement entitlement from the employer, see Adeki v. Ijebu-Ode District Council (1962)1 SCNLR 349, Anite v. University of Calabar (2001)3 NWLR (Pt. 700) 239 (CA), Ezenna v. KSHSMB (2011)1 NWLR (Pt. 1251) 89 and UBN Plc v. Soares (2012)29 NLLR 329. It is apt to add that a dismissed employee loses right to any end of service benefits. It is thus in cognizance of all the negative consequences of dismissal that it is usually the last resort with extreme caution. The case for the Defendant is that the Claimant was issued a query (Exh. D4) to explain his involvement in certain acts considered to be misconduct. In his paragraph 8 of his statement of facts, the Claimant averred that throughout his employment with the Defendants he did not have any record of indiscipline nor commit any crime or irregularity and that he was never given any query to respond to by the Defendants. It was also part of the averment of the Claimant that he was never afforded an opportunity to defend himself against the allegation leveled. Though the Defendants claimed to have served the Claimant Exh. D4, there is no evidence before the Court to the effect that indeed the Claimant was so served. There is nothing on Exh. D4 in form of acknowledgment by the Claimant. In the absence of such evidence it is difficult for the Claimant to respond to the said query. The right to fair hearing certainly dictates that a party be afforded an opportunity to put forward his own side of an event before action is taken against him. The right to fair hearing is a constitutional one and it carries with it commonsense as well. I find and hold that the Claimant was denied fair hearing before he was dismissed by the Defendants and declare that the dismissal was wrongful but not null and void. Claimant sought an order of Court to the effect that the publication of the dismissal letter issued to the claimant on the notice board of the defendant amounted to libel and as such defamed the character of the Claimant. The Defendants claimed that they did not publish the said letter. Claimant maintained that they did. He who asserts must prove. Whoever will lose if no evidence is led in the determination of a matter has the burden of proving same. The Claimant is obliged to lead credible evidence in support of his assertion that the said letter was published. I find no such evidence in this case as none was led. In the absence of proof, there is no basis to grant this relief. Same is therefore refused and dismissed. The dismissal of the Claimant having been declared wrongful, it follows that the Claimant is entitled to requisite payment in lieu of notice as well as his end of service benefit, if any. By Exh. 001 the Claimant was employed effective from 19/8/02 while his dismissal from the Defendants was to be effective from 7/12/09. By paragraph A-34c of Exh. 005, the Claimant is entitled to a one month notice where the contract has continued for a period of one year and above. I thus here order and direct the Defendants to pay to the Claimant one month salary in lieu of notice in the sum of Twenty Seven Thousand Six Hundred and Thirty Naira (=N=27,630.00). Secondly, by Exh. 005, as stated on page 33 thereof, an employee whose appointment is terminated after confirmation will receive the benefits as stated. Claimant falls into the category of 6-12 years having worked from 2002 to 2009 (7 years) and therefore entitled to one and half months pay for every completed year of service. I thus here order and direct the Defendant to pay to the Claimant the sum of Two Hundred and Ninety Thousand One Hundred and Fifteen Naira (=N=290,115.00) being his end of service benefits as provided for in paragraph A-34 of Exh. 005. The Claimant also sought the sum of Twenty Five Million Naira as damages for wrongful dismissal and defamation. This Court has held in this Judgment that neither defamation nor libel was proved. That being the case a question of damages for defamation could not arise. Now respecting damages for wrongful dismissal, the law is trite that in an action for wrongful dismissal or termination of employment, the measure of damages is the amount which the Claimant would have earned for the period of notice required. See Kunle Osisanya v. Afribank Nigeria (2007)All FWLR (Pt. 360) 1480 at 1493. This Court has already awarded to the Claimant one month salary in lieu of notice which he ought to be given by the terms and conditions of his employment. To again award damages for wrongful dismissal will neither serve the interest of justice nor be in accordance with the position of the law. Thus, the claim for the sum of Twenty Five Million Naira as damages for wrongful dismissal and defamation of claimant's character is refused and dismissed. Finally, the Claimant applied for the cost of this action. Ordinarily, cost follows events, see generally Order 24 National Industrial Court Rules, 2007. The purpose of cost is inter alia to relieve the successful party the expenses or part of same incurred in the prosecution of the suit. I hold that the Claimant is entitled to cost in this suit assessed at Fifty Thousand Naira (=N=50,000.00) only. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I hold and direct as follows - 1. I declare that the dismissal of the Claimant by the Defendants was wrongful but not null and void. 2. The claim for a declaration that the publication of the dismissal letter issued to the Claimant on the notice board of the defendant amounted to libel and as such defamed the character of the Claimant is refused and dismissed for lack of proof. 3. The Defendants are ordered to pay to the Claimant the sum of Twenty Seven Thousand, Six Hundred and Thirty Thousand naira only being his one month salary in lieu of notice. 4. I thus here order and direct the Defendant to pay to the Claimant the sum of Two Hundred and Ninety Thousand One Hundred and Fifteen Naira (=N=290,115.00) being his end of service benefits as provided for in paragraph A-34 of Exh. 005. 5. The claim for the sum of Twenty Five Million Naira as damages for wrongful dismissal and defamation of Claimant's character is refused and dismissed. 6. I hold that the Claimant is entitled to cost in this suit assessed at Fifty Thousand Naira (=N=50,000.00) only. 7. The total Judgment sum, except cost, shall be paid with 20 per cent interest from December 2009 till final liquidation. The terms of this Judgment shall be complied with within 14 days from today. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge