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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION<o:p></o:p></span></u></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Akinlolu Oluwafemi for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Ayo Obe Mrs with B. J. Fadesere for the Defendant.<u><o:p></o:p></u></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><u><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Claims<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">This case was transferred to this Court from the High Court of Lagos State. Pursuant therefore to an Order of this Court made on 3/4/14, the Claimant via a <i>General Form of Complaint </i>on7/5/14 and sought the following reliefs - <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the dismissal of the Claimant, through a letter dated the 3<sup>rd</sup> day of December 2010, by the Defendant, without waiting for the Claimant to exhaust his right of appeal as provided for under Article 12.17 of the MTN Nigeria Conditions of Service Manual, is invalid, null and void and against the principles of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria Cap C23, Vol. 3 Laws of the Federation of Nigeria 2004. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. A declaration that the Claimant’s purported dismissal as an employee of MTN Nigeria Communications Ltd, by a letter dated the 3<sup>rd</sup> day of December 2010, without the approval of the Human Resources Executive of the Defendant’s Company as mandated by Article 12.12.3 of the MTN Nigeria Conditions of Service Manual, is invalid, null, void and of no consequence. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. A declaration that the purported dismissal of the Claimant by the Defendant based upon an allegation not yet proved, and still pending before the High Court of Rivers State (Port Harcourt Judicial Division) in Suit No. PHC/943/2010, Renaissance Communications Ltd v MTN Nigeria Communications Limited, the Claimant and 2 others, is invalid, null void and orchestrated by the Defendant to over-reach the decision before the Port-Harcourt High Court and contrary to the Constitutional provision of presumption of innocence until proven guilty. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. A declaration that the Claimant’s purported dismissal by the Defendant in contravention of Article 12.12.4.1 of the MTN Nigeria Conditions of Service Manual without the issuance of a query, is premature, unconstitutional, null, void and of no consequence. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. An order setting aside the purported dismissal of the Claimant, by the Defendant contained in a letter dated the 3<sup>rd</sup> day of December 2010 for being in violation of the disciplinary procedures laid down and contained in the MTN Nigeria Conditions of Service Manual governing relationship and binding between the Claimant and the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. A Mandatory Order directing the Defendant to call back the Claimant and reinstate him to his position in the Defendant’s Company, and pay up all his entitlements, salaries, bonuses allowances and promotions that are or may be due to him, from 3<sup>rd</sup> December 2010 till reinstatement of his employment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. An order of perpetual injunction restraining the Defendant, its servants and/or agents from preventing the Claimant from performing any of the functions and duties of his office or interfering with the enjoyment of the rights, privileges and benefits attached to his office. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ALTERNATIVELY <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. The sum of N500,000,000 as general damages payable by the Defendant to the Claimant for unlawful dismissal of the Claimant from the Defendant’s employment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Claimant's Originating processes were accompanied with all the necessary frontloaded processes as mandated by the Rules of this Court. On the Defendant entered appearance and reacted as appropriate by filing all its defence processes. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Facts<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The facts of this case, in brief, as revealed by the pleadings filed are that the sometime in 2009, the Claimant, who was then the Senior Manager Trade Marketing of the Defendant collected the sum of =N=4 Million into his personal account from a staff of <i>Renaissance Communications Limited </i>who had been engaged by the Defendant to organise an event in the Niger Delta; that the Claimant did not inform the Defendant of the transaction; that the Defendant was not aware of the transaction until 2010 when it decided to organise another programme in the Niger Delta known as <i>Niger Delta Youth Music Fiesta </i>and engaged <i>Tegram Limited</i>; that upon the award of the hosting rights to <i>Tegram Limited, Renaissance Communications Limited </i>sued the Defendant as well as two others at the High Court of Rivers State alleging that it paid =N=4 Million to the Claimant as consideration to guarantee the continuity of the event for and on behalf of the Defendant; that the matter was investigated by the Defendant's <i>Business Risk Management Department </i>as a result of which the Claimant was invited to a formal disciplinary hearing to answer allegation bordering on act of misconduct; that the Claimant found culpable on 3 of the allegations and that the Claimant was subsequently dismissed by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Case of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The hearing of this case commenced on 23/2/15 when the Claimant opened its case and adopted his witness depositions on oath dated 7/5/14 as his evidence in chief. Claimant also adopted another oath dated 8/10/14 as further evidence in chief. Witness tendered 21 documents as exhibits. They were admitted as exhibits and marked as <i>Exh. C1 - Exh. 21. </i>Under cross examination, <i>CW1 </i>testified that <i>Exhibit C21</i> could be amended from time to time; that once amendments are made and he is able to read them online, he is bound by them; that such amendments are usually circulated electronically; that he was not aware of changes to <i>MTN Disciplinary Code</i>; that he did not submit anything in writing in response to invitation to Disciplinary Hearing; that he attended the hearing in person; that <i>Exhibit C16 </i>stated his entitlement regarding the Disciplinary Hearing and that he presented his case at the hearing though he was not allowed access to the evidence already presented. <i>CW1 </i>added that he was the 3<sup>rd</sup> Defendant in <i>Suit No. <st1:stockticker w:st="on">PHC</st1:stockticker>/943/2010</i> while <st1:stockticker w:st="on"><i>MTN</i></st1:stockticker> is the 1<sup>st</sup> Defendant in that Suit; that in <i>Exhibit C15</i> he stated that =N=4 Million Naira was paid into his account; that there were 5 charges against him all built around collection of the =N=4Million; that he informed his senior colleagues about the =N=4Million but could not remember exactly when; that it was <i>Exhibit C14</i> that made his Senior Colleagues to be informed; that the Defendant got to know of the =N=4 Million he collected on its behalf when <i>Suit No. PHC/943/2010</i> was filed; that he had the authority of my boss to do everything necessary to ensure that the event was successful; that he did breach the Code of Conduct of Defendant in my activities; that his appointment was terminated by Dismissal on 3/12/10 and he appealed in <i>Exhibit C18</i> and that he later at the trial in the High Court saw a letter rejecting my appeal and that he was fraudulently dismissed by the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">One Fred Ana was called as <i>CW2. </i>The witness adopted his written statement on oath dated 7/5/14 as his evidence in chief and tendered one document as exhibit. The document was admitted as exhibit and marked as <i>Exh. C22. </i>Under cross examination, the witness stated that he is the Managing Director of <i>Critics Facilities Co. Limited; </i>that when he collected =N=4Million cash he did so on behalf of his Company; that he acknowledged receipt of the money and he sent receipt and his passport later; that there was no official printed receipt issued; that hr collected the money because he wanted to be paid before he released his equipment; that the arrangement/meetings for <i>Andujam event</i> was made in his office; that Mr. Charles was coordinating from Port Harcourt; that he insisted that he be paid before the release of the equipment; that Mr. Charles never mentioned willingness to pay him by cheque; that he paid part of the =N=4 Million into his account and that he recognized the transcript of his evidence under cross examination at the <i>High Court of Lagos State</i> as shown to me by Counsel. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Case of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Defendant opened its defence on 28/9/15. One Oluwafemi Oyetunde testified as <i>DW1. </i>Witness adopted her witness statement on oath dated 2/9/14 as her evidence in chief and testified under cross examination that she is conversant with the operation of Marketing Department of the Defendant; that at relevant period to this case the Regional Marketing Operation was headed by the Claimant whose direct reports then were Regional Marketing Managers and Merchandising Managers Annual Marketing Budget is usually agreed upon by a direction given by the Marketing Division; that this will be followed by a strategy meeting; that the outcome of this meeting leads different Managers in their assumptions and that this is done normally between June – July for the following year. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Oluwayomi Onagoruwa testified as <i>DW2. </i>Witness adopted his sworn statement on oath dated 2/9/14 as his evidence in chief and tendered 4 documents for admission as exhibits. The documents were admitted and marked as <i>Exh. D1 - Exh. D4. </i>Under cross examination, <i>DW2 </i>stated that he was employed in 2011; that the facts of this case had occurred then; that <i>Exhibit C21</i> contains conduct expected from employee and sanctions for misdemeanor; that he is conversant with the facts of this case; that none of <i>Exhibits C21 and D2 </i>is superior to the other; that he does not know the individual within <i>Renaissance Comm. Ltd</i> who sued <i>MTN</i> in Port-Harcourt; that every one whom the Legal Department felt was necessary was involved in the defence of the case; that at the time of the forensic investigation the case referred, 4 of his deposition was still pending in Port-Harcourt; that the Investigation Panel consisted of a Divisional Executive, General Manager from Legal Department, a Manager who is also Business Partner Representative, a Senior Manager, Employee Services and Industrial and Employee Relations Adviser; that they were all present at the enquiry initiated by the Defendant; that due process was followed; that a query was issued to Claimant; that he could not remember the date of the query; that there are about 4 charges; that he was found guilty of 2 and exonerated of 2; that at the time of Claimant’s dismissal Amina Oyagbola was the Human Resources Executive; that she was not the one who signed the letter of dismissal; that the <i>Code of Conduct and Matrix</i> is not meant to address the delegation of power at the Defendant; that the case before Port-Harcourt High Court has been Struck Out and that one Demola Ojo acknowledged receipt of <i>Exhibit D3 </i>an employee of the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Submissions on Behalf of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">At the close of hearing and pursuant to the direction of the Court, the Defendant filed its final written address on 8/2/16. In it, learned Counsel to the Defendant identified the following issues for the just determination of this case - <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the provisions of the Constitution of the Federal Republic of Nigeria are relevant and binding in relations between the Claimant and the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the relationship between the Claimant and the Defendant is one of ordinary Master and Servant, and thus determinable in accordance with the terms of the contract between them. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Defendant is entitled to terminate the Claimant’s appointment for good, bad, or no reason. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Defendant can be forced by any declaration, mandatory order, perpetual injunction or other order of this Honourable Court to accept the services of the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Whether the Claimant is entitled to damages predicated on the basis that the Defendant is not entitled to terminate the Claimant’s appointment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Whether the Defendant’s Conditions of Service Manual issued in February 2006, and its Code of Conduct and Disciplinary Matrix issued in June 2010 form part of the contract of employment between the Defendant and the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. Whether the dismissal of the Claimant followed and was in accordance with the laid down procedures of the Defendant a contained in the Defendant’s Conditions of Service Manual issued in February 2006, and its Code of Conduct and Disciplinary Matrix issued in June 2010. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">8. Whether the Claimant admitted that he had accepted a payment of N4,000,000.00 from a 3<sup>rd</sup> Party. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">9. Whether the Claimant was given a fair hearing in respect of the allegation that he was in breach of the Defendant’s Code of Conduct by accepting a gift or payment from a 3<sup>rd</sup> Party. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">10. Whether the Defendant was entitled to dismiss the Claimant once it was satisfied that he was in breach of the Defendant’s Code of Conduct. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">11. Whether the Defendant was bound to await the conclusion of the proceedings before the High Court of Rivers State in Suit No. PHC/943/2010 between Renaissance Communications Ltd. v. MTN Nigeria Communications Ltd. (the Defendant herein), Tegram Ltd., Abiodun Odejayi (the Claimant herein) and Kester Osaghenye before it could determine whether the Claimant was in breach of its own Code of Conduct regarding the acceptance of gifts or payments from 3<sup>rd</sup> Parties. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Learned Counsel argued issues 1-5 together. In doing so Counsel submitted that these issues relate to the general law governing employment; that the provisions of Chapter IV of the 1999 Constitution are enforceable against the State only and no against private persons; that the contract of employment between the parties is an ordinary one without statutory flavour Claimant not being a public officer; that Claimant's employment was governed by a contract of employment, Defendant's Conditions of Service Manual, Defendant's Code of Conduct and Disciplinary Matrix as well as the Letter of Appointment and that the Claimant was subject to the appropriate procedure before his dismissal was effected. Counsel urged the Court to reject the argument of the Claimant that he was unaware of the coming into force of the Matrix. It was the submission of Counsel that the Defendant followed its procedure correctly; that the Claimant was given a query as required referring to <i>Exh. C16; </i>that the Claimant appeared at the disciplinary hearing and made submissions and that the Claimant was found guilty on 3 of the 5 allegations made against him and that he utilised his opportunity to appeal against the finding by <i>Exh. C18</i> which appeal was subsequently dismissed.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On whether the Claimant was wrongfully dismissed, learned Counsel submitted that it gave the Claimant an opportunity to react to allegations made against him and that his response showed that he indeed collected =N=4 million from a customer of the Defendant into his personal account without authority and without informing the Defendant of the said sum collected and that this conduct of the Claimant amounts to misconduct. Learned Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Learned Counsel further submitted that if the Court finds that the Claimant was wrongfully dismissed that the measure of damages must be limited to the period of notice that he would have otherwise been entitled to in case of termination of his appointment; that the period according to section 22.3.1.2 of the <i>Manual </i>is one month; that Claimant's letter of appointment also made the same point clear.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Learned Counsel to the Defendant urged the Court to dismiss the claims in their entirety because the Claimant committed an act of misconduct, was given fair hearing, Defendant followed its disciplinary procedures and that the conduct of the Claimant merited dismissal irrespective of the outcome of the pending proceedings in Port Harcourt.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Submissions on Behalf of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The final written address of the Claimant was filed on 29/2/16. In it Counsel set down the following four issues down for determination - <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether or not the dismissal of the Claimant, through a letter dated the 3<sup>rd</sup> day of December, 2010 by the Defendant, without waiting for the Claimant to exhaust his right of appeal as provided for under Article 12.12 of the MTN Nigeria Conditions of Services Manual is invalid, null, void and against the principles of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria Cap C23; Vol. 3 Law of the Federation of Nigeria 2004?. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether or not the purported dismissal of the Claimant by the Defendant based upon an allegation not yet proved and still pending before the High Court of Rivers State in Suit No: PHC/943/2010 in which the Claimant and the Defendant were parties is invalid, null and void and orchestrated by the Defendant to over-reach the decision before the Rivers State High Court and contrary to the constitutional provision of presumption of innocence until proven guilty?.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">IN THE ALTERNATIVE<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Whether the Defendant has been able to prove that the Claimant collected the sum of N4,000,000.00 (Four Million Naira) to ensure continuity of the event?. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:7.1pt;mso-add-space: auto;text-align:justify;text-indent:-7.1pt"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">3. Whether or not the Claimant’s purported dismissal as an employee the Defendant’s by a letter dated the 3<sup>rd</sup> day of December, 2010 without the mandatory approval of the Human Resources Executive of the Defendant’s Company as contained in Article 12.12.3 of the Defendant’s Condition of Service manual is invalid, null, void and of no consequence?.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:7.1pt;mso-add-space:auto; text-align:justify;text-indent:-7.1pt"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">4. Whether the Defendant followed its procedure for a valid dismissal?.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, learned Counsel submitted that Section 31(1) of the 1979 Constitution (as amended) is not only enforceable against the State and its apparatus but also against private persons citing <i>Uzoukwu v. Ezeonu II (1991)6 NWLR (Pt. 200) 763-764. </i>Counsel argued that the Disciplinary Committee sat on 1/12/10 and that while Claimant had 3 days within which to appeal, Claimant was dismissed by a letter dated 3/12/10 and hence he was denied the right of appeal. Counsel submitted that this is against the rule of fair hearing which is not just a common law right but also a constitutional right citing <i>Alhaji v. Ma'ji (2002)4 NWLR (Pt. 756) 49 & UBA v. Oranuba (2014)2 NWLR (Pt. 1390) 41-42. </i>It was the submission of Counsel that the setting up of a disciplinary committee without any query being issued to the Claimant as mandated under <i>Article 12.12.4 </i>of the <i>Code of Conduct </i>and the issuance of a dismissal letter without affording Claimant an opportunity to exhaust his appeal within the 3 clear days as allowed is an infringement on his fundamental human right to fair hearing which therefore vitiated the proceedings and renders it null and void. Counsel urged the Court to so hold. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that where a matter is before a Court of law, none of the parties can legally or lawfully take any unilateral action that will prejudice or tend to prejudice the hearing or adjudication of the matter. Counsel cited <i>Ezeobu v. FATB Limited (1992)1 NWLR (Pt. 220) 635 </i>& <i>Governor of Lagos State v. Chief Ojukwu </i>in support. Learned Counsel submitted that in the instant case, both <i>CW1 & DW2 </i>testified that the matter in Suit No: PHC/943/2010 was still pending before the High Court of Rivers State when the disciplinary committee was set up; that the allegations against the Claimant were the issues before the High Court of Rivers State and that the matter was struck out for lack of diligent prosecution on 15/3/11 yet the Defendant was in a great haste to dismiss the Claimant. Counsel submitted that the decision of the disciplinary committee without waiting for the Court's decision is null and void. Learned Counsel prayed the Court to so hold. Arguing the alternative issue, learned Counsel submitted that the law is trite that he who asserts must prove; that the Claimant not having been found guilty by the High Court, the allegation of collecting money from a third party must also fail. Counsel so urged the Court to hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 3 which is whether or not the Claimant’s purported dismissal as an employee the Defendant’s by a letter dated the 3<sup>rd</sup> day of December, 2010 without the mandatory approval of the Human Resources Executive of the Defendant’s Company as contained in Article 12.12.3 of the Defendant’s Condition of Service manual is invalid, null, void and of no consequence, learned Counsel cited S. 83, <i>Evidence Act, 2011 </i>and submitted that there is no evidence before the Court that the maker of <i>Exh. D4 (</i>special delegation of power) is dead or unfit by reason of her bodily or mental condition to attend as a witness nor is it not practicable to secure her attendance, citing <i>Iniama v. Akpabi & Ors. (2008)17 NWLR (Pt. 1116) 300. </i>Counsel argued further that by <i>Article 12.12.3 </i>of <i>Exh. C21, </i>the Human Resources Executive must approve all dismissals but that an unknown person signed for the Human Resource Executive; that the Court should regard the document as unsigned and that <i>Exh. C19 </i>not having a clear identity is an unsigned document and a worthless piece of paper citing <i>A.G Abia State v. Agharanya (1999)6 NWLR (Pt. 607) 371 & PMB Limited v. NDIC (2011)12 NWLR (Pt. 1261) 262. </i>Learned Counsel submitted that since there is no express clause in <i>Exh.D2 & Exh. C21 </i>that enables the Human resource Executive to delegate his approval of dismissal, the Court should declare the letter of dismissal of the Claimant <i>Exh. C19 </i>as utterly invalid, null and void and of no effect.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Issue 4 is whether the Defendant followed its procedure for a valid dismissal. Counsel submitted that there is a distinction between a claim for a declaration that a servant was not validly dismissed and one that his dismissal was wrongful; that where a dismissal contravenes the contract of service as in the instant case, it will be held invalid and therefore declared null and void as in the case of <i>UTC v. Nwokoruku (1993)3 NWLR (Pt. 281) 309. </i>Counsel argued that <i>Article 12.12.3 </i>of <i>Exh. C21 </i>and pages 5-7 of <i>Exh. D2 </i>provides that the Human Resources Executive must approve all dismissals; that <i>Exh. C19 </i>the letter of dismissal was not so signed by the Human resources Executive. Counsel added that the Claimant was not issued a query as required. Learned Counsel prayed the Court to resolve this issue in favour of the Claimant. Finally, learned Counsel submitted that since no query was given to the Claimant to respond to, the dismissal letter was not validly signed and the Claimant not given the opportunity to formally exhaust his right of appeal as provided in the contract of Service Manual, the purported dismissal of the Claimant is null, void and of no consequence.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 9/3/16, learned Counsel to the Defendant filed a 3-page Defendant's Reply on Points of Law. I read same carefully and with understanding. I find nothing in the said process to suggest it is indeed a reply address on point of law. Rather I find same as merely rearguing majorly the points already canvassed in the final written address filed. I thus opt not to include same in this Judgment.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">7. Decision<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I have carefully read and understood all the processes filed in this case. I reviewed and evaluated all the exhibits tendered and admitted. In addition, I listened attentively to the testimonies of the witnesses called at trial as well as to the oral submissions of learned Counsel on either side. Having done all this, I simply narrow the issues for the just determination of this case to the following -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the dismissal of the Claimant from the employment of the Defendant was invalid, null, void and of no effect.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. If the answer to issue 1is in the affirmative, whether the Claimant has proved his case to be entitled to any or all the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The law is rather now elementary that whoever approaches the Court for judicial intervention has a burden of proof on him to discharge. Thus having asserted, the Claimant must prove his assertions. Until and unless this burden is discharged, the Court will be left with no option than to dismiss the reliefs sought. The major plank of the case of the Claimant is that his dismissal by the Defendant was null, void and of no consequence in law. His argument is that the Defendant did not follow its established procedure, that he was not issued a query as required, that he was not allowed to exhaust his right of appeal and that his letter of dismissal was not signed by the Human Resources Executive and that Defendant did not await the decision of the High Court of Rivers State in the suit pending before it.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Let me begin by stating the obvious that an employer of labour has the inherent right and power to discipline any of its employees. Such discipline may take the form of issuance of query, warning, suspension, termination or outright dismissal from employment. See<span class="apple-style-span"><span style="color:#000099"> <i>Olaniyan & 2 Ors v University of Lagos & Anor. (1985) 2 NWLR (Pt. 9) 599 @ 612; Fakuade v O. A. U. T. H (1993) 5 NWLR (pt 291) SC 47</i></span></span><i> </i> What is ordinarily required is for the employer to comply with the terms and conditions of employment especially as relate to period of notice to be given or payment of salary in lieu of notice. It is also trite to state that even where the terms and conditions of employment respecting notice is not followed, the action taken by the employer either termination or dismissal is not thereby null, void and of no effect. See <i>Obaje v. Nigeria Airspace Management Agency (2013) LPELR-19958 (CA). </i>The remedy of an aggrieved employee in such circumstance lies in damages. The rationale being that to declare a termination or dismissal by a master null, void and of no effect will carry with it a far reaching consequences such as foisting a willing employee on an unwilling employer. Claimant had argued that he was denied fair hearing in the events leading to his dismissal by the Defendant. The right to be fairly heard is a constitutional right and of fundamental importance to dispensation of justice. But the right to be heard fairly is nothing more than an opportunity to be heard. See <span class="apple-style-span"><i><span style="color:#000099">Chevron Nig. Ltd vs Osigwe (2014)LPELR 23534 (CA); Nnaji vs Alozie (2014) LPELR 24014 (CA); BILL Const. Co ltd vs Imani & Sons Ltd (2006) 19 NWLR (Pt.10113) 1 at 6; News Watch Comm. Ltd vs Atta (2006) 12 NWLR (Pt.993) 144 Ikoli Ventures Ltd vs SPDCN Ltd (2008) 12 NWLR (Pt.1101) 422 at 426. </span></i></span> See also <i>Ukiwo v. Onwudiwe (2016) LPELR. </i> It is not in any way a magic wand to, with the waive of the hand turn things around. Was the Claimant given fairing in the series of events leading to his dismissal from the services of the Defendant? Part of the exhibits tendered by the Claimant and admitted by the Court is <i>Exh. C16. </i>That was a document from the Human Resources t<i><o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Division and addressed to the Claimant. It is titled as <i>Advice to Attend a Formal Disciplinary Enquiry </i>and dated 29/11/10. This exhibit stated the various allegations against the Claimant to which he was expected to react to at the Disciplinary Enquiry. On second and third page of the exhibit it was stated that at the hearing, the Claimant would be entitled to <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''be represented by fellow MTN employee of your choice; call witnesses to give evidence on your behalf; put your version of the story to the hearing; an interpreter if you so elect; challenge evidence brought against you; challenge the outcome of the hearing within three (3), days of decision through an appeal procedure if you are dissatisfied with such outcome''. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">It has not been argued before me on behalf of the Claimant that he did not attend the formal disciplinary enquiry or that he was not afforded hearing at the enquiry. <i>Exh. C17 </i>was also tendered by the Claimant. That exhibit showed that the Claimant was found guilty on 3 charges but not so found guilty on 2 charges ''due the initiators inability to establish a case to the satisfaction of the panel''. Now page 8 of <i>Exh. C17 </i>I find the followings -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''The Chairperson imposed the maximum penalty of <i>Dismissal </i>based on the fact the Respondent had accepted money from a supplier without any reasonable justification. The reasons adduced by the Respondent for accepting the money were untenable, weak and appeared to be a poorly conceived afterthought. The Panel found that the Respondent set out to corrupt himself and thus breached extant codes and manuals regarding same''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">It is also on record that the Claimant exercised his right to appeal against the finding and recommendation of the Panel by <i>Exh. C18 </i>dated 7/12/10. The Claimant's letter of dismissal <i>Exh. C19 </i>dated 3/12/10 was attacked by the Claimant on the grounds <i>inter alia</i> that it was not signed by the Human Resource Executive. That exhibit was signed by two staff of the Defendant. An individual signed for one Amina Oyagbola designated as <i>Human Resource Executive. </i>One Bola Akingbade the Chief Executive Officer of the Defendant also signed. It was not canvassed before me that the Defendant denied the authority of the two signatories of that exhibit to sign same. Again, Amina Oyagbola the Human Resource Executive was not shown to me to have complained that she did not authorise that exhibit to be signed for her. Indeed as if to finally puncture the argument of the Claimant, the Defendant tendered <i>Exh. D4 (Special Delegation of Powers) </i>from Amina Oyagbola as Human Resource Executive to Olufunke Amobi in which Amina Oyagbola stated that she <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''SANCTION, PERMIT AND CONFIRM everything whatsoever the delegate referred to may lawfully do or cause to be done on account of this delegation, and I undertake and agree to sanction, permit and confirm everything as aforementioned''. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I find the argument of the Claimant in relation to who signed <i>Exh. C19 </i>as nothing short of mere technicality. The fact remains that the era of technicality has since been consigned to the dustbin of history. The essential consideration now is the doing of substantial justice. From the evaluation of the evidence presented to me, I find and hold that the dismissal of the Claimant by the Defendant is not null, void and of no effect.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The second issue for determination is if the answer to issue 1is in the affirmative, whether the Claimant has proved his case to be entitled to any or all the reliefs sought. This Court has found and held that the dismissal of the Claimant is not null, void and of not effect as canvassed by the Claimant. That being the case, the consideration of the second issue becomes a mere academic exercise. This is predicated on the premise that the Claimant's entitlement to the reliefs sought or any of them must be founded on a finding that his dismissal was null, void and of no effect.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed for lack of cogent and credible evidence to support same.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I make no order as to cost.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.0pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.0pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:center;line-height:normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><span style="font-size:12.0pt;font-family: "Times New Roman","serif"">Presiding Judge</span><o:p></o:p></p> <p class="MsoNormal"><o:p> </o:p> </p><p class="MsoNormal"><o:p></o:p></p>