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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: July 5, 2011 SUIT NO. NIC/LA/57/2007 BETWEEN COLLINS NGBOYE - CLAIMANT AND OBAT OIL AND PETROLEUM LIMITED - DEFENDANT REPRESENTATION Patrick Dunkwu, for the claimant. Wole Asagidigbi, for the defendant. JUDGMENT By an amended complaint dated and filed on the 28th October 2008, the claimant claims the sum of N780,000 (Seven Hundred and Eighty Thousand Naira Only) being arrears of salaries owed to the claimant by the defendant from September 2004 to November 2007 at the rate of N20,000 (Twenty Thousand Naira) per month. And Three Million Naira (N3,000,000) as general and specific damages for loss of earnings, homelessness and untold hardship suffered by the claimant when the respondent on the 6th day of September, 2004 terminated the claimant’s employment. Accompanying the complaint are a statement of facts, a certified true copy of a judgment of Magistrate Court 10, Apapa which discharged and acquitted the claimant, an affidavit in support of the motion for amendment and a document marked Exhibit A which is an internal memo from the defendant to the claimant dated July 1st, 2004. The defendant filed a statement of defence dated 28th December 2007 but filed on 31st December 2007. Accompanying the defence processes are a list of witnesses to be called, and a list of documents to be relied upon. These are the letter of the claimant’s employment, a Query issued to the claimant and a Dismissal Notice. From the statement of facts to establish this cause of action, the claimant pleaded as follows:- (1) The claimant was in the employ of the defendant from 30th September 2003 as an Electrical Technician and had his appointment confirmed vide a letter of salary increment dated the 1st of July, 2004. (2) On the 6th of September 2004 at 1.00 a.m., while on lawful duty in the defendants’ premises, he was pounced on by one Mr. Taiye Orile a staff of the defendant and was falsely accused of stealing five jerry cans of diesel oil. (3) The claimant was beaten up by the security men led by Mr. Taiye Orile. (4) At 3 a.m., the claimant was taken to Ibafon Police Post. (5) The claimant was handcuffed and paraded through the streets and was later taken to the defendant’s premises. (6) The claimant was later that day charged to court on a one count charge of stealing. (7) For two years the claimant went through the rigours of litigation. Two staff of the defendant gave evidence against him i.e. Mr. Taiye Orile and Mr. Philip Okpaike all of whom are in the employ of the defendant. (8) On 5th day of July 2006, the claimant was discharged and acquitted on the one count charge of stealing by the Magistrate Court 10 Apapa, Lagos. (9) Several attempts made by the claimant and his counsel to the defendant’s premises to ask for his emoluments and other entitlements due to him proved abortive as they were denied access to the defendant’s premises. (10) Several letters written by the claimant’s counsel, the last one being on the 5th of July, 2006 were all unreplied. (11) The claimant had been rendered homeless, impecunious as a result of loss of earnings and the rigors and monetary cost of litigation for two years. The claimant then made the claims as contained in the amended complaint reproduced above. The defendant reacted by filing a statement of defence wherein it pleaded as follows:- (1) The Defendant avers that the claimant came into their employment on the 9th day of June, 2003 through a letter of employment dated on the said date. (2) The defendant states that on the 6th day of September, 2004 the claimant was caught with five jerry cans loaded and filled with diesel oil with the intention to take them and use them without the knowledge and permission of the defendant. (3) The defendant was informed of this incidence by one of its security officers on duty on the fateful day, Mr. C. Taiye Orile, who caught the claimant in the act. (4) The defendant avers that since the employment of the claimant his actions and movements have always being suspicious and questionable; to this extent, he was queried on several occasions. (5) The defendant dismissed the claimant with immediate effect through a dismissal letter dated 7th day of September, 2004 with regard to this incidence of allegation of theft. (6) The defendant also wish to state that the judgment dated 5th July, 2006 by the Magistrate Court 10 sitting in Apapa was premised on lack of diligent prosecution on the part of the prosecution who failed to produce his third witness at a point in the course of the trial i.e. the investigative officer in charge of the case coupled with the mishandling of the exhibits by the prosecution. (7) The defendant states that the claimant has no entitlement with the defendant after having been summarily dismissed by the defendant on allegation of misdemeanor. (8) The defendant also states categorically that the claimant has no genuine claim with the defendant for he had legally been discharged of his duty. The claimant gave evidence for himself in Kwale Language through an interpreter, one Charles Ugbana of No. 36 Olodan Street, Off Ojo Road, Lagos. The claimant told the court that he is an Electrician. That he now lives at a church premises. The name of the church where he now lives is called Lord’s Chosen at Ijesha Bus stop here in Lagos. That before now he had lived at 161 Old Oyo Road, Agboju Amuwo, Lagos. That he left his former place when he had this problem with his employer and had no money to pay for the room he was living in and as a result, the landlord ejected him. The claimant stated that he was employed by the defendant in 2003 at a salary of N18,780 and was given a letter of employment. That he worked with the defendant for one year and some months. That he cannot remember the exact number of months he had worked over the one year that he worked for the defendant. The claimant stated that he remembered what happened on the 6th of September, 2004. According to the claimant, on that day, he was on duty and there is a man called Taiye Orile with whom he had a misunderstanding with. That around 3 a.m. while he was on night duty and because of the problem he had with him, Taiye Orile invited Mobile Policemen working in the defendant’s premises and told them that he wanted to sell the diesel meant for the generator. That the Mobile Policemen then arrested him. That before he could explain anything to the Policemen, they started beating him and dragged him to the nearest Police Station. That at the Police Station, he was further beaten and after a few days taken to Apapa Chief Magistrate Court. That he was subsequently arraigned and taken to Kirikiri Prison where he was remanded for two weeks awaiting trial before his relative came to bail him. After which he went back to the defendant in company of one of his church members but he was not allowed access at the security personnel informed him at the gate that management of the defendant had given instructions not to allow him in. That in 2006, the matter at the Magistrate Court ended and he was discharged and acquitted of the allegation against him. After the judgment that he went back to the defendant in company of his counsel but was again refused entry. That as at now he was not working. That he has been searching for jobs but was being asked of a letter of reference from his previous employers which he could not get as the defendant would not even allow him enter its premises let alone get a reference letter. Concluding his evidence in-chief, the claimant prayed this court to look at this matter and see what can be done to him regarding his benefits. Under cross-examination by counsel to the defendant, the claimant said he was at his duty post in the electrical department when he was accused of wanting to sell diesel at 3.00 a.m. He also answered that he was turning the diesel inside the generator when Orile ran to the Mobile Policemen. That the said generator is in the respondent company’s premises. The claimant also answered that his duty at the defendant’s company is to take care of the generators of the defendant and electrical panels including air conditioners. Again that he was assigned to take care of generators and that the incident happened at 3.00 a.m. The claimant also stated that it was 250 litres of diesel that he was pouring into the generator. Also he answered that Orile knew that he was the one assigned to refill the generator; only that because of their misunderstanding, he decided to report to the Police. That the defendant has 3 generators – one was 800 KVA, the second is 500 KVA and the third is 100 KVA. That it was the 500 KVA generator that he was refilling and it uses 320 litres when it is empty. That the reason he came with his church member was to bear witness to what may happen at the company. The claimant also responded that as an electrician he was given practical training, not theoretical and the company knew him to be an electrician before he was employed. That he is not aware that he has been summarily dismissed from the company. The claimant denied that he was given any letter of dismissal by anybody. The claimant also replied that he was given a query only once because of lateness to duty; and since then he has not been given any query. That even the query he was given was during break time when he went to eat, and he did not return in good time that he was queried and not for any other reason. At this juncture defendant counsel closed his cross-examination. There was no re-examination by the claimant’s counsel. The Defence witness testified on behalf of the defendant. The defence witness’ name is Mrs. Yetunde Adefowora. She told the court that she is a staff of Obat Oil and Petroleum Ltd (the defendant) located at No. 1, Dr. Fredreich Akinsuntan Close, Ibafon Beach Land Estate, Apapa- Lagos. She told the court that she is the Human Resources Manager of the defendant company. That she knew the claimant as an ex-staff of the defendant company. That when she assumed the office of Human Resources Manager, she came in possession of staff files; after going through the files, she came across the claimant’s file as an ex-staff of the defendant in the Electrical Department as Electrical Technician. That the scope of work of an Electrical Technician is the supply of light through the generator and to ensure effectiveness of other electrical gadgets and appliances. As part of his work, an electrical technician also makes requisition for diesel used to power the generator. That the claimant left the services of the respondent on 7th September, 2004 by way of summary dismissal which was in writing. Under cross-examination, the defence witness told the court that the claimant never worked under her, and that she has never set her eyes on the claimant. She also told the court that she was not in the employ of the defendant company when the events that gave rise to this case took place. That her knowledge of this case is limited to what is in the file and what she was told. The parties closed their cases and were ordered to file written addresses. In its written address, dated 9th February 2011, the defendant raised two issues for determination, namely:- (1) Whether the defendant has the right to summarily dismiss the claimant without notice or payment in lieu of notice. (2) Whether the dismissal of the claimant is wrong or right. As regards issue (1), the defendant submitted that it is trite law that an employer has the right to terminate the contract of service of an employee without notice or payment in lieu of notice on account of gross misconduct on the part of the employee which strikes at the root of the contract. To the defendant, based on the above principle of law, the conduct or the act of the employee must have offended the essential provision of the contract justifying summary dismissal. That this brings into focus the allegation against the claimant who was alleged of stealing five jerry cans loaded with diesel. The defendant also implored the court to note that though the defendant company uses power generating set that consumes diesel, however, that the refueling is not done manually by pouring diesel through jerry cans rather by a hose connected with the generating set’s tank with a valve that can open and close which allows passage of diesel. The defendant’s counsel further submitted that the presence of five jerry cans loaded with diesel around the generator house was with a bad intention which to counsel, the claimant confessed to the management early in the morning of the incident before he was handed over to the Police. Furthermore, the defendant’s counsel submitted that the action of the claimant amounted to a repudiation of his contract of service. That the claimant was employed as electrical technician in charge of the power generating set and has been in the service of the defendant’s company for one year and some months. The defendant, therefore, submitted that this act of the claimant goes to the root and essence of his contract which can only be interpreted as a breach of contract. That when an employee who has committed a sufficiently fundamental breach of his contract, he can be dismissed by his employer and such a dismissal can be without notice which makes the employee to lose his or her entitlement. That in UBN Ltd v. Ogboh [1995] 2 NWLR 380 at 653, the Supreme Court categorized the action of the claimant under a gross misconduct which the court defined as “Conduct of a grave and weighty character as to undermine the confidence which should exist between the employer and his employee or working against the deep interest of the employer.” On issue (2), the defendant submitted that the dismissal of the claimant is lawful and right in law. The defendant’s counsel further submitted that it is pertinent to note that after the claimant was caught in the act and arrested by the security he was held till the early morning. That the claimant met with the management where he confessed and begged for forgiveness before he was handed over to the Police. That after that the defendant’s management met and resolved to terminate the claimant’s employment. To counsel, the claimant’s misconduct has simply undermined the confidence and trust the defendant reposed in him. The defendant cited Aniagolu, JSC in Ajayi v. Texaco Ltd (counsel did not provide the citation) where he stated that:- There is no fixed rule of law defining the degree of misconduct which would justify dismissal. It is enough that the conduct of the servant is of a grave and weighty character as to undermine the confidence which would exist between him and the master. As to whether the claimant is entitled to damages, the defendant submitted that it is widely recognized by law and in principle that employment relationship is built upon trust and confidence and once this is breached by either party, the innocent party is entitled to treat the contract as being at an end. That in measuring damages in a situation like this, the Court of Appeal in B. S. Onalaja v. African Petroleum Limited [1991] 6 NWLR (Pt. 198) 492 stated that:- The measure of damages in cases of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salaries up to retirement age. If no period of notice was prescribed then the common law rule will apply, namely that a responsible period would be given usually one month or three months depending on the category of staff being dismissed. To the defendant, the claimant is a junior staff in ordinary contract of employment where the implied term cannot be more than a month’s notice. The defendant contended that the environment where it carries on its business is sensitive and highly inflammable and that caution is taken at every step. That the claimant’s letter of termination was handed over to him at the reception department wherein he was directed to release all the property of the company with him but that the claimant refused to return back the defendant’s properties. That the Supreme Court in Katto v. CBN [1999] 6 NWLR (Pt. 607) at 235 stated that:- In ordinary contract of employment where the terms provide for one month’s notice before termination or salary in lieu thereof, the only remedy an employee, who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlement due to him at any time they employment was brought to an end. Furthermore, that the Supreme Court in Western Nigeria Development Corp v. Abimbola [1966] 4 NSCC 172 and in New Nigeria Bank Ltd v. Oniovosa (no citation) the court held that:- Where an employee is wrongfully dismissed based on a false accusation of misconduct without being given any notice or salaries in lieu of notice, his remedy lies in an action for the amount of salaries he would have received during the period of notice and not for reinstatement. The defendant invited the court to note that PW1 contradicted himself when he said that he was beaten and handed over to the Police at 3 a.m. on the fateful day; whereas he said in his testimony that he was held down to the early hours of the day before he was handed to the Police. The defendant also submitted that if an employee commits a breach of the terms in the contract of employment and in consequence the contract came to an end prematurely, the employee loses the benefit he should have received had the contract still been in force until it expired or was duly terminated; in particular, that any loss suffered by the adverse impact on the employee’s chances of obtaining alternative employment is to be excluded from assessment of damages. The defendant finally submitted that it is not responsible for any damages whether general or specific because the so called damages were the consequences of the claimant’s action and urged the court to dismiss this case with substantial cost against the claimant. The claimant’s counsel filed a written address dated and filed on the 7th June 2011 and adopted the two issues formulated for determination by the court by the defendant. Regarding issue (1) i.e. whether the defendant has the right to summarily dismiss the claimant without notice or payment in lieu of notice, the claimant submitted that the defendant sought to erroneously sway the court into accepting the theory, which is wrong in fact and law and which offends the principle of natural justice, fair hearing and equity as guaranteed by the 1999 Constitution; a provision that also guarantees the presumption of innocence until proved otherwise. The claimant then submitted that his case rests simply on the fact that the claimant was on lawful duty when the incident that gave rise to this suit occurred. To the claimant, what the court has to determine is whether a mere fact of an unsubstantiated allegation against the claimant of an incident that occurred in the wee hours of the morning (3 a.m.) be construed as an act of gross misconduct on the part of the employee could be interpreted as having repudiated his contract. The claimant, therefore, submitted that the argument of the defendant in that regard is an erroneous presumption of the law and prayed this court to reject such argument. On issue (2) i.e. whether the summary dismissal of the claimant is right or wrong, the claimant submitted that his dismissal was unlawful and has no legal basis. The claimant maintained that he was arrested at about 3 a.m. while on lawful duty and was alleged to have stolen five jerry cans of diesel oil, and was returned back to the defendant’s premises around 7a.m. To the claimant, it would be stretching the human imagination too far; that given the cosmopolitan nature of Lagos and the exigencies of moving from one part of the city to the other, that a management meeting could have been held at that time of the morning. That what the management did and which the defendant admitted in its address is that early that morning the claimant was sent back to the Police Station and from there he was charged to court. The claimant further submitted that the said termination of employment offends the principle of fair hearing, doctrine of equity and natural Justice. The claimant also submitted that an employer cannot terminate or dismiss an employee upon an allegation of crime where the employee denies same, referring the court to Dangtoe v. C.S.C. Plateau State [2001] 9 NWLR (Pt. 717) 132 and urged this court to so hold. The claimant then prayed the court to hold that the termination of the claimant employment is invalid and unlawful as it is based solely on the unsubstantiated allegation of stealing which carries with it a social stigma on the character of the claimant and which allegation was thoroughly tested in a court of law and found to be false and entitle the claimant to substantial damages. The claimant finally urged this court to grant all the prayers sought. The defendant did not file any reply on points of law. After a careful consideration of the processes filed, the evidence of witnesses, written addresses and the authorities cited, this court also adopts the two issues framed by the parties for the determination of this court. In evaluating the merits of the case we must point out the unprofessionalism displayed by counsel to the defendant. Counsel to the defendant failed to call in witnesses that were abreast with the material facts of the case and whose evidence would, therefore, be helpful to his defence. And in failing to do so, counsel thought introducing evidence that was not led during oral testimony or through frontloaded documents at the address stage would suffice to aid his defence. The following are but a few examples of the attempt by counsel to introduce at the address stage fresh evidence that was not led during oral testimony – 1. The submission of counsel that the refueling of the generating set is not done manually by pouring diesel through jerry cans rather by a hose connected with the generating set’s tank with a valve that can open and close which allows passage of diesel. 2. The respective submissions of counsel to the effect that the claimant confessed to the management early in the morning of the incident before he was handed over to the Police. 3. The submission of counsel that the claimant begged for forgiveness before he was handed over to the Police. 4. The submission of counsel that the environment where the defendant carries on its business is sensitive and highly inflammable and that cautions are taken at every step. All of these, in the guise of submissions, are attempts at introducing fresh evidence that was not earlier led. As has been various held by the courts, counsel’s address and argument cannot take the place of evidence on record. See Bayo v Njidda & ors [2004] 8 NWLR (Pt. 876) 544 and Agbamu v. Ofili [2004] 5 NWLR (Pt. 867) 540. It is unprofessional for counsel to do this. These pieces of evidence are, therefore, disregarded in this judgment. The defendant had argued in the first issue that the said summary dismissal of the claimant is lawful based on the allegation of stealing made against the claimant. The claimant on the other hand argued that the said dismissal was contrary to the tenets of fair hearing as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria, as amended, which presumes him innocent until proven otherwise. To the claimant, whether a mere fact of an unsubstantiated allegation against him can be construed as gross misconduct which could result in his having repudiated his contract. In proving his innocence, the claimant attached a certified true copy of the judgment of Magistrate Court 10, Apapa which discharged and acquitted him of the said allegation of theft. The courts have made profound pronouncements regarding the law relating to dismissals where an allegation of crime is in issue. In John Anakism v. UBN Ltd [1994] 1 NWLR (Pt. 322) 557, the Court of Appeal held that where the dismissal of an employee is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand. The Court of Appeal continued that where the dismissal is made before the outcome of a criminal charge relating to the alleged crime, such dismissal will have two effects, namely: it will run contrary to the rule of natural justice and section 33 of the 1979 Constitution (now section 36 of the 1999 Constitution) and consequently be null, void and premature; and a subsequent discharge of the servant in the pending criminal charge will clearly show that the master has not proved the allegation upon which the servant’s dismissal was based. And in BCC v. Ager [2010] 9 NWLR (Pt. 1199) 292, the Court of Appeal went on to state, in distinguishing between wrongful dismissal and a dismissal that is invalid or null, that where a court makes a finding that the dismissal or termination of a servant is null and void, there is no dismissal or termination. That what the employer did was a nullity before the law. In such a case, the appointment of the employee should be regarded as unbroken, continuing from the period prior to the purported termination till the date of judgment. In the instant case, the defendant did not lead evidence to establish the allegation of gross misconduct by the claimant. The evidence of DW1 did not seek to establish any gross misconduct as the witness was not even a staff of the defendant company when the incident in question took place. Under cross-examination DW1 admitted that she only read about the incident in the file of the claimant who never worked under her and that she has never met the claimant. The evidence of the defence witness could, therefore, not establish allegation of gross misconduct against the claimant. The defendant did not call any of its staff that had direct link to the incident on the fateful day. The defendant had denied that the claimant was not dismissed without a cause. It averred that the claimant was dismissed for gross misconduct in connection with the theft of five jerry cans of diesel. It is trite that where an employee is guilty of gross misconduct, and this has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages. See UBN Ltd v. Ogboh [1995] 2 NWLR (Pt. 380) at 669, Boston Deep Sea Fishing Co. v. Ansell [1988] 39 Ch. D 339, Babatunde Ajayi v. Texaco Nigeria Ltd & ors [1987] 3 NWLR (Pt. 62) 577, Ridge v. Baldwin [1963] 2 ALL ER 66 at 71 and Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599. The defendant, however, led no evidence whatever in proof of this all important averment that the claimant was dismissed on grounds of gross misconduct. The defendant failed to establish the crux of its defence. It is, therefore, beyond dispute that the claimant’s dismissal by the defendant was clearly null and void, the claimant having been discharged and acquitted by a competent court of law regarding the allegations of theft. See John Anakism v. UBN Ltd and BCC v. Ager, all supra. Having found that the claimant’s dismissal based on the unsubstantiated allegations of theft is null and void, meaning that there was no dismissal in the eyes of the law, the next issue is whether the claimant is entitled to damages and/or his salaries from September 2004 to November 2007. By the authority of BCC v. Ager, supra, the claimant’s employment in the eyes of the law is continuing. This means that he is entitled to the payment of his salary up to the date of judgment. By Exhibit B (the internal memo of 1st July 2004 entitled, ‘Review of Salary’) attached to the amended complaint, the salary of the claimant was increased from 18,750 Naira to 20,000 Naira. Although the claimant had erroneously, as per paragraph 1 of his statement of facts, intuited that the said salary increase meant confirmation of his employment, the internal memo of 1st July 2004 is sufficient evidence as to the last monthly salary of the claimant. This means that the claimant is entitled to be paid his monthly salary at 20,000 Naira per month for all the period from 7th September 2004 to the date of this judgment. For the avoidance of doubt, we hold and order as follows – 1. The dismissal of the claimant by the defendant is null and void. 2. The employment of the claimant is, therefore, continuing. 3. However, the relationship between the parties has broken down irretrievably that we cannot order that the claimant continues in the employment beyond the date of this judgment. 4. In consequence, the claimant is entitled to his salary at 20,000 Naira per month for all the period from 7th September 2004 to the date of this judgment. 5. The defendant shall pay to the claimant within 30 days of this judgment the said entitlement of monthly salary at 20,000 Naira for the period 7th September 2004 to the date of this judgment. 6. Cost is put at 50,000 Naira against the defendant in favour of the claimant. Judgment is entered accordingly. …………………………… Hon. Justice B. B. Kanyip Presiding Judge ……………………………………… …...……………………………… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge