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JUDGMENT Introduction and claims The claimant filed this complaint against the defendant on 11th March 2015 seeking the following reliefs: a. A declaration that the notice for Disciplinary Committee Hearing was not properly given as it did not contain any witness statements and/or written evidence against the claimant. b. A declaration that the Disciplinary Committee Hearing contravened the provisions of the defendant’s Disciplinary Procedure Policy particularly paragraphs D(l)(iii), D(2)(iii) (as it relates to investigating manager) and D(2)(ii) (as it relates to employee under investigation). c. An order of this Honourable Court declaring the summary dismissal of the claimant unlawful, violation of the claimant's right of fair hearing and against the rule of natural justice. d. An order of this Honourable Court that the dismissal of the claimant be reviewed and the claimant allowed to resign his appointment with the defendant. e. An order of this Honourable Court directing the defendant to pay to the claimant all benefits due for the eight years for which he was in the employment of the defendant. f. An order of this Honourable Court directing the defendant to pay the claimant the sum of N100,000,000.00 (Hundred million Naira only) as general damages and emotional disturbance. g. And such other order(s) as the Honourable Court may deem fit to make in the circumstances. Accompanying the complaint is the statement of facts, the claimant’s statement on oath and copies of documents. The defendant entered appearance, filed its statement of defence, witness statement on oath and copies of documents on 7th April 2015. The claimant filed a reply on 18th May 2015. Case of the claimant The claimant’s case on the pleadings is that the defendant employed him as Sales Admin Executive by a letter dated 14th November, 2006 and he resumed on 15th November 2006. The claimant stated that he was promoted to the position of Retail Development Manager on 23rd of December 2008 was subsequently transferred to Akure by a letter dated 3rd June 2009 and his role as Retail Development Manager was confirmed by a letter dated 8th June, 2009. The claimant stated that he was promoted to the position of Divisional Administrative Manager (Sales) on 1st of October 2011 and transferred to Aba, a position he held until his dismissal on 18th February, 2014. The claimant averred that his official duties included recommendation of new vendors for the procurement of local government emblems for the business vehicles where necessary in the interest of the company. That on resumption of at Aba, he called for the submission of pro-forma invoices from interested vendors for the supply of the 2012 local government emblems for which Optimism Industrial Development Ventures, Staple Enterprises and Me-Wams & Co. submitted their quotations. On receipt of these invoices the claimant stated that he was informed that Optimism Industrial Development Ventures understood the terrain and was engaged in 2011. The claimant stated that the Procurement Manager negotiated with the vendors and reduced Optimism Industrial Development Ventures’ quotation to N100,000.00 (One Hundred Thousand Naira Only) per van, and Staple Enterprises to N70,000.00 (Seventy Thousand Naira) per van. The claimant stated that in preparation for supply of year 2014 local government emblems, he called for quotations from vendors. Optimism Industrial Development Ventures submitted a quotation of N110,000.00 (One Hundred and Ten Thousand Naira Only) per van while Tone Global submitted quotation of N70,000.00 (Seventy Thousand Naira Only) per van. He stated that he forwarded the two quotations to Mordi Ogadinma of the Procurement Department for price review and made recommendations to Mordi Ogadinma which saved the defendant a total sum of N40,000.00 (Forty Thousand Naira Only) per van. That Mordi Ogadinma then awarded the contract on 85%:15% ratio to both Tone Global and Optimism Industrial Development Ventures respectively on the recommendations of his department. The claimant stated that an embittered Mr. Ukachi Onuoha trading as Optimism Industrial Development Ventures called and accused him of being the source of his problem by recommending that the contract be shared between him and Tone Global and threatened to deal with him. That Mr. Ukachi Onuoha then made an allegation against him of demanding and receiving bribe to the defendant. He stated that on January 16, 2014 he was invited by Kingsley Onyeoziri (Head of Security) to an investigative interview for “Suspected Fraudulent Interaction with GN Vendors” where he was asked to give a written statement and by e-mail dated January 28, 2014, he was suspended for a period of 5 days pending investigation effective from 29th January, 2014 and was asked to hand over all work tools in his possession which includes company laptop, car and also the suspension of official e-mail account. By e-mail dated Tuesday February 4, 2014 the suspension was extended for a further period of 10 days effective from the 5th of February, 2014. The claimant stated that he was invited to a disciplinary committee hearing slated for 7th February, 2014 by an e-mail dated 4th of February, 2014, and attached to it was the defendant’s disciplinary procedure policy issued by one Wale Adediran with the review date as May 2013. The claimant stated that contrary to the provision of Paragraph D(l)(iii) of the disciplinary procedure policy, the defendant did not enclose copies of any witness statements or evidence to the disciplinary committee hearing invitation. The claimant stated that the defendant did not adduce any evidence in support of the claims against him. That in contravention of Paragraph D(2)(ii) of the disciplinary procedure policy the investigating manager did not set out full facts and conclusions emerging from his investigations and findings, which he demanded for at the hearing. The claimant stated that the investigating manager neither called any witnesses to give evidence against him, nor read any signed witness statements of witnesses unable to attend, or highlight any other material evidence. The claimant stated that he was denied the opportunity of questioning the witness of the defendant as none was called or seen before, during and after at the hearing. He averred that the disciplinary committee hearing was not done in accordance with the company’s disciplinary procedure policy; and that the said hearing is a denial of his right to fair hearing. The claimant stated that the hearing was constituted and done mala-fide as his line manager, and reporting manager were not present at the hearing. The claimant stated that following the hearing he was summarily dismissed on 18th February, 2014 without any report of findings and investigation. The claimant stated that through his counsel Dr. Fred Odutola he wrote a letter dated 9th May, 2014 bringing to the defendant’s notice lapses in the disciplinary committee hearing and pleading with the defendant to allow him resign his appointment or have his dismissal converted into termination. That the defendant did not respond and his counsel wrote another letter to the defendant on 17th June, 2014 and received a response from the defendant through its legal Adviser stating that his employment with the defendant “was duly severed in compliance with the company policy and in line with the requirements of the law”. The claimant stated that his summary dismissal was done mala-fide and not in compliance with the requirements of the law. The claimant testified in support of his case and adopted his statements on oath. They were in the exact terms of the pleadings and he relied on his admitted documents. Under cross-examination, he identified the statement he made to the Investigation Manager. The claimant said he admitted that he had Financial dealings outside usual business with one of the defendant’s vendors named Optimism Industrial Ventures in his statement. The claimant told the court that he admitted receiving N500,000.00, N600,000.00 and N50,000.00 as repayment of loan from the Vendor. He said he did not have a loan agreement with the Vendor and that he did not disclose the transaction to his employer. The claimant told the court that after advising the Vendor of the ratio he threatened to deal with him. He said he did not report the threat of the Vendor preferring to call his bluff. The claimant told the court that one of his duties as a Divisional Admin Manager was to recommend Vendors to the defendant with justification. He told the court that he did not see his financial dealings with the Vendor as creating a conflict of interest. The claimant then closed his case. Case of the defendant The defendant’s case on the pleadings is that as part of its business operations, it utilizes vehicles for the distribution of its products and various State and Local governments require that such vehicles bear an emblem to portray the nature of their use. The defendant stated that the responsibility of selecting and negotiating with the appropriate vendor to be contracted for the procurement of the emblems is strictly within the functions of its Procurement Department and the claimant as Sales Manager is only required to ensure that the emblems are obtained as part of his duty to ensure proper management of the defendant’s distribution vehicles. The defendant further stated that the determining factor in choosing the vendor is not dependent mainly on the price quotation; rather, the selection of the vendor is determined primarily by the ability of the vendor to properly provide the service required without interruptions to the defendant’s supply/distribution chain. The defendant stated that sometime in 2011 it engaged Optimism Ventures to resolve issues arising from errors of Summit the national vendor. The defendant stated that Optimism Ventures and Tone Global submitted quotations for the 2014 Contract; the claimant ignored the proposal of a potential vendor Staple Enterprises who had offered to procure the permits for N80,000.00 (Eighty Thousand Naira) per vehicle compared to Optimism Ventures’ rate of N110,000.00 per vehicle and the 2014 contract was awarded to Tone Global and Optimism Ventures on a 70%-30% ratio. The defendant stated that Optimism Ventures declined the offer made to it to provide the emblems based on the ratio allotted to it. That it was as a result of Optimism Ventures’ rejection of the offer that Mordi Ogadinma enquired from the vendor the reason it rejected the offer. The defendant stated that it was upon this enquiry that Mr. Ukachi Onuoha the Managing Director of Optimism Ventures informed it via his email dated 08 January 2014 of the claimant’s underhand dealings with the vendor. The defendant averred that the said Mr. Ukachi Onuoha informed it that the claimant demanded the sum of N1,000,000.00 for the 2012 emblem procurement contract and a sum of N2,800,000.00 in January 2013 at the rate of N40,000.00 per vehicle for the seventy (70) permits to be supplied. The defendant further stated that Mr. Onuoha informed it that he paid the claimant the sum of N500,000.00 out of the N2,800,000.00 demanded as kickback for the 2014 contract. The defendant further averred that when the claimant was confronted with the allegations of Mr. Onuoha he did not deny that he received the sum of N500,000.00 (Five Hundred Thousand Naira) from Mr. Onuoha/Optimism Ventures on 19th April 2013 but explained the payment as a loan repayment and he failed to provide any credible evidence to show that he had earlier advanced any money to Mr. Onuoha. The defendant stated that after internal deliberations on the allegations made by Optimism Ventures against the claimant, he was invited by the Head of Security Kingsley Onyeoziri to give his statement in respect of the allegations. The defendant stated that the e-mail inviting the claimant to the disciplinary committee hearing stated that the Committee will rely on all statements previously provided by him in compliance with the Disciplinary Procedure Policy (“DPP”). The defendant stated that the claimant was fully informed of his rights under the DPP in the mail and was obliged the privilege of seeking further clarifications if required. The defendant stated that the claimant attended the disciplinary committee hearing and did not request for any additional documents, neither did he request to cross-examine Mr. Onuoha who made the complaint against him. The claimant was informed of the allegations against him and also highlighted the material evidence against him, his own statement in which he admitted financial dealings with Optimism Ventures outside the scope of “usual business”. The defendant averred that the claimant did not request for any investigation report or any other document as he was fully aware of the allegations and the nature of the complaint against him. The defendant averred that the claimant was informed of the nature of the complaint against him and was afforded adequate time and opportunity to present his defence, informed of his rights and given the opportunity to request for further particulars and documents if he required any. The defendant stated that it is not a requirement of the DPP for the claimant’s line manager and reporting manager to be present at the hearing. The defendant averred that the decision to dismiss the claimant was reached after a thorough investigation of the allegations and the claimant given the opportunity to defend himself before the disciplinary committee. The defendant averred that there were no lapses in the disciplinary hearing and the claimant failed to utilize the appeal process. The defendant stated that the claimant was paid all his emoluments up till the 18th February 2014 when he was dismissed. The defendant pleaded in the alternative that in the event that the court finds that the DPP was not complied with, the letter of 18th February 2014 serves as notice that it is no longer interested in having the claimant in its employment; and the claimant is only entitled to salary in lieu of notice for the months of February and March 2014 as contained in the claimant’s contract of employment and has not suffered any emotional or other damage at all, and if the claimant has suffered any such damage, it was not at by reason of any actions of the defendant. The claimant called two witnesses, Kingsley Onyeoziri (DW1) Head Branch Protection and Corporate Security and Queenete Akaeze (DW2) Senior H.R. Advisor. They both adopted their depositions which were in terms of the pleadings and relied on the admitted documents. Under cross examination, DW1 informed the court that he was a member of the Committee that sat but that he was not one of those who took the decision. He confirmed that a contractor accused the claimant but that the accuser was not physically present at the hearing. DW1 told the court that the claimant does not have the power to award contracts on behalf of the defendant. He told the court that the slip given to him was evidence the accuser was presenting as payment/kickback and that at the panel sitting nobody represented the interest of the accused. DW1 informed the court that the claimant was advised to attend with a witness of his choice if he so chooses. He informed the court that it is not a general practice that when a staff is on suspension that his tools are taken from him. Under cross-examination, DW2 told the court that she joined the services of the defendant on 8th December 2014 and never met the claimant. She said she did not know how many people were on the Panel that interviewed the claimant. She informed the court that the accuser was not invited to the Panel hearing and confirmed that DW1 was on the Panel. Upon being asked if the claimant was issued a query, DW2 said she would have to check the records. She said that it is normal in the defendant for working tools to be taken from a staff on suspension, and that the claimant was invited to the disciplinary hearing and he had the opportunity to defend himself. The defendant then closed its case. Final Address The defendant’s final address is dated 25th January 2018 and is filed on 1st February 2018. The claimant’s final address is dated 7th February 2018 and is filed the same day. The defendant’s reply is dated 6th March 2018 and is filed the same day. Counsel adopted their respective addresses. Learned counsel to the defendant submitted the following issues for determination: (a) Having regard to the evidence and the entire circumstances of this case, whether the Defendant properly dismissed the Claimant from its employment in compliance with the provisions of the Defendant's Disciplinary Procedure Policy? (b) Whether or not the Claimant is entitled to the reliefs endorsed in its general form of complaint and Statement of Facts having regard to the express and unambiguous provisions of the Claimant's contract of employment Learned counsel to the claimant submitted the following issues for determination: a. Whether the summary dismissal of the Claimant was not unjust as it violates his right to fair hearing and the rule of natural justice. b. Whether the Defendant complied with the Disciplinary Procedure Policy when dismissing the Claimant as the accuser who averred was not invited to prove. Decision I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final addresses in this matter. The issues for determination in this judgement are: (i) whether the defendant complied with the Disciplinary Procedure Policy; (ii) whether the claimant was given a fair hearing; (iii) whether the defendant has established the reason for which it summarily dismissed the claimant. The claimant as required has put in evidence his letter of employment (exhibit C1), letters of promotion and transfer (exhibits C2 to C5), claimant’s written statement (exhibit C6), letters of suspension (exhibit C7 and C8), Disciplinary Procedure Policy (exhibit C9), invitation to disciplinary hearing (exhibit C10), letter of dismissal (exhibit C11). In evidence is the complaint to the defendant made against the claimant by the Managing Director of Optimism Ventures Onuoha Ukachu of demanding and receiving gratification (exhibit D2). I will begin with the preliminary issue raised by learned counsel to the claimant that the evidence of DW2 is hearsay on the grounds that DW2 joined the defendant 10 months after the claimant had been dismissed and was not a member of the disciplinary committee. The law is that an officer employed by a company can give evidence to establish any transaction on behalf of the company even if he/she was not the one who actually took part in the transaction provided he is fully briefed and documents relevant to the transaction are made available to him. See Interdrill Nig Ltd V UBA [2017] MJSC Vol 3 – 4; [2017] LPELR-41907, Saleh V Bank of the North Ltd [2006] 6 NWLR (Pt 976) 316. DW2 is the Human Resources Advisor and has stated that the facts in her deposition were obtained in the course of her official duties. I hold that the evidence of DW2 is admissible and is not hearsay. The provisions of the Disciplinary Procedure Policy relevant for this judgement that the claimant has complained was breached are reproduced as follows: D. Disciplinary Hearings 1. Upon constitution of the Disciplinary Committee, the appropriate HR Partner in consultation with the Company’s Legal Adviser must send the employee under investigation a notice in writing: (i) Informing him/her that a disciplinary hearing will take place (including details of where and when the hearing is to be held); (ii) Setting out the allegations against him/her in sufficient detail to allow him/her to answer them; (iii)Enclosing copies of any witness statements and/or other written evidence where applicable; (iv)Advising him/her that he/she is entitled to be accompanied by a colleague or union representative at the hearing (but not by a lawyer or any other third party not employed by the Company). Reasonable prior notice of the disciplinary hearing should be given (normally a minimum of 48 hours), to give the employees an opportunity to consider the case against them. 2. At the Hearing At the hearing itself, the investigating manager is required to appear before the Disciplinary Committee to: (i) State the relevant allegations in full; (ii) Set out the full facts and conclusions emerging from the investigation; (iii)Call any witness to give evidence in person, read any signed witness statements of witnesses who are unable to attend and/or highlight any other material evidence. The invitation to the disciplinary committee hearing (exhibit C10) sets out the allegations made against the claimant, the names of the members of the disciplinary committee, the name of DW1 as Investigating Officer, with a copy of the disciplinary policy attached. It also states that “all documentation previously provided by you during the investigation will be considered; under the company’s disciplinary policy, you are entitled to invite any witnesses or ask a colleague to accompany you to the hearing; if you have any questions about any aspect of the procedure, please do contact the undersigned before the hearing”. The claimant alleges that clauses D (1) (iii), D (2) (ii) & (iii) were not complied with as no witness statements or written evidence were attached to the invitation. By the claimant’s own pleadings and evidence, he stated that he had been invited to an investigation interview and that he had made a written statement (exhibit C6) in which he admitted “financial dealings with Optimism Ventures outside the usual business” which were in the form of cash payments to his account made by the Managing Director of Optimism Ventures Onuoha Ukachu. The procedure in clause D (1) (iii) has a proviso “where applicable”. I agree with learned counsel to the defendant that the proviso is an indication that it is not mandatory that in all disciplinary hearings, a witness statement or written evidence must be produced. In this instance, there is no evidence that there were any witness statements made apart from the complaint of Onuoha Ukachu. The claimant was already aware of the complaint against him, he had been investigated and had made a self-indicting statement in written form which qualifies as written evidence. It is my considered view that this is one of those instances where enclosing copies of witness statements and/or other written evidence is not applicable. I therefore hold that the defendant has not contravened the provisions of clause D (1) (iii). The alleged breach of clause D (2) (ii) & (iii) is in respect of the proceedings at the disciplinary committee hearing. The law is that he who asserts must prove. See Sections 131 (1) & (2) and 132 of the Evidence Act 2011, Calabar Co-operative Ltd VEkpo [2008] 1-2 SC 229 at 255, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The report of the disciplinary committee is not before the Court to enable a determination of whether or not the procedure in clause D (2) (ii) & (iii) was complied with by the disciplinary committee at the hearing. The only evidence in this regard is that DW1 as the Investigating Manager was present at the disciplinary hearing. In the absence of the disciplinary report, the Court cannot speculate on the conduct of the proceedings. The claimant has not proved that the defendant contravened this procedure; and I so hold. The claimant has alleged that he was denied a fair hearing. By the claimant’s own statement he was informed of the complaint against him, and he made a written statement (exhibit C6) admitting that he had financial dealings with the defendant’s vendor Optimism Ventures outside usual business and he did not disclose this to the defendant his employer. The totality of the evidence adduced reveals that the claimant was invited (exhibit C10) to attend the disciplinary hearing and was informed that he is entitled to invite any witnesses or ask a colleague to accompany him to the hearing. The claimant appeared before the disciplinary committee. How then can he allege that he was not given a fair hearing? The Supreme Court in the case of Imonikhe v Unity Bank Plc [2011] 12 NWLR (Pt 1262) 624 has held that fair hearing simply means “hear the other side”. I find that the claimant was given a fair hearing; and I so hold. It is the law that where an employer gives a reason for terminating the appointment of its employee, he has a duty to establish the reason to the satisfaction of the court. See Olatunbosin v NISER Council [1988] 1 NSCC 1025; [1988] 3 NWLR (Pt 80) 25. The unchallenged evidence is that the disciplinary committee found the claimant guilty of demanding and receiving illicit payments from a vendor contrary to the defendant’s code of business conduct and he was dismissed. I am satisfied that the defendant has established the gross misconduct for which it summarily dismissed the claimant. The claimant’s misconduct is grave and weighty; it has eroded and undermined the confidence reposed in him by the defendant to carry out his duties. I hold that the dismissal of the claimant is lawful and is in accordance with the Disciplinary Procedure Policy that empowers the defendant to summarily dismiss an employee for an act of gross misconduct. See Lawrence Azenobor v Bayero University Kano [2009] 17 NWLR (Pt 1169) 96 at 108, Borishade v NBN [2007] 1NWLR (Pt 1015) 217, Ajayi v Texaco Nigeria Ltd [1987] 3 NWLR 62. The claimant having been dismissed is not entitled to gratuity or other terminal benefits he may have otherwise been entitled to if he had not been dismissed. He is also not entitled to general damages having failed to establish the injury or wrong done to him that entitles him the general damages. For all the reasons given above, the claimant has failed to prove his case. It is hereby dismissed with costs of N100,000.00 awarded the defendant. Judgement is entered accordingly. _______________________________ Hon Justice O.A.Obaseki-Osaghae