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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: JULY 6, 2012 SUIT NO. NIC/LA/175/2011 BETWEEN Mr. Benjamin Billie - Claimant AND Multi-links Telecommunication Limited - Defendant REPRESENTATION Olu Falana, with I. Okpabe for the Claimant. No appearance for the Defendant. JUDGEMENT The claimant filed this complaint on the 24th November 2011 against the defendant seeking the following reliefs: (a) A declaration that the summary dismissal of the claimant by the defendant vide letter dated 14th day of October, 2011 is wrongful and unlawful. (b) A declaration that the summary dismissal of the claimant by the defendant vide letter dated 14th day of October, 2011 is a flagrant violation of the rules of natural justice and the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (c) A declaration that the defendant cannot establish the dismissal of the claimant on the grounds of the claimant being found guilty of fraud, dishonesty and fraudulent connivance. (d) A declaration that the defendant cannot find the claimant guilty of a crime. (e) An order directing the defendant to pay to the claimant the sum of N1,076,132 same being damages and loss for his wrongful and unlawful summary dismissal broken down as follows: (a) N276,132.72 (Two hundred and Seventy Six Thousand, One Hundred and Thirty Two Thousand, Seventy Two kobo) being one month salary in lieu of one month’s notice as prescribed by the Claimants Terms of Employment. (b) N800,000.00 (Eight Hundred Thousand Naira Only) being Solicitor’s Fee to institute this action. (f) N5,000,000.00 (Five Million Naira) as damages for libel and slander including exemplary damages. (g) An order of perpetual injunction restraining the defendant whether by itself, servants, assigns, agents, or otherwise howsoever, from further printing and publishing or causing to be published and printed; or spreading by any oral medium that the claimant has been found guilty of fraud, dishonesty and fraudulent connivance or any crime whatsoever. (h) Such further order(s) as this Honourable Court may deem fit to make in the circumstances. Accompanying the complaint is a 55 paragraph statement of facts, the name of the witness to be called, copies of documents to be relied on at the trial and a motion on notice praying for an order of interlocutory injunction. The defendant was served with the originating processes on the 7th December 2011 but did not enter appearance neither did it file any defence processes. Hearing notice was also served on it after every sitting. On the 27th January 2012, the claimant sought leave of court to withdraw the motion for interlocutory injunction and the motion was struck out. The case of the claimant on the pleadings is that he was employed by the defendant on the 1st December 2007 as a permanent staff and his appointment confirmed. That on the 16th September 2011, the defendant with the aid of two armed mobile policemen rough handled and forcefully arrested him in the full glare of both staff and customers of the defendant on the allegation that he was being investigated for a case of fraud running to N16million. He pleaded that he was interrogated and written statements were forcefully obtained from him. That no query was issued to him by the defendant nor any official complaint made against him to any relevant law enforcement agency. He pleaded that he was served with a notification of suspension which barred him from visiting any premises of the defendant without permission and on the 1st October 2011 and unsigned and undated notification of a disciplinary meeting was delivered to his house. He pleaded that he briefed his solicitors Olu Falana who wrote to the Managing Director of the defendant demanding that his fundamental rights be respected. That the defendant tried him based on the unsigned and undated notification of a disciplinary meeting to be held on 7th October 2011 and by a letter dated 14th October 2011 the defendant summarily dismissed him on the ground that he was found guilty of fraudulent activities, that he was not tried and found guilty of the crime of fraudulent activities by a competent court of law. The claimant pleaded that the defendant did not give him one months notice or pay him one months salary in lieu of notice in accordance with his employment contract and that the defendant published the contents of the letter of dismissal and thereby defamed him. He pleaded that he incurred solicitors fees to file this action to the tune of N800,000.00. The claimant (CWI) and one Mr Ayodele Konu (CW2) testified/gave evidence in support of the claimants claims. The claimants testimony was in the exact terms of his case on the pleadings. CW2 gave evidence to the effect that the defendant was his former employer and the claimant was his boss when he worked with the defendant. He said he was always known the claimant to be forthright, honest and with very little tolerance for irresponsibility. The claimant closed its case and counsel was ordered to file final written address. The claimants final written address is dated 12th April 2012. Learned counsel to the claimant formulated six issues for determination as follows: (a) Whether the court can act on uncontroverted and unchallenged evidence? (b) Whether the unsigned Notice of Invitation to a disciplinary meeting amounted to a valid invitation to the claimant so as to give him fair hearing before he was dismissed? (c) Whether the allegation for which the defendant tried the claimant amounts to a crime which ought to be tried by a competent court? (d) Whether the defendant can establish the reason for which the claimant was dismissed? (e) Whether this Honourable Court has jurisdiction to entertain a libel and slander claim? (f) Whether the claimant has proved libel and slander?. He submitted that where evidence given by a party to a proceeding is unchallenged it is open to the court seized of the proceedings to act on the unchallenged evidence before it because unchallenged uncontroverted evidence are deemed admitted citing Ogunyade v Oshunkeye [2007] All FWLR (Pt 389) 1179 at 1192. He urged the court to enter judgement for the claimant on the ground that the evidence is unchallenged and uncontroverted. He submitted that the unsigned and undated notification of a disciplinary meeting is a worthless document citing Aiki v Idowu [2006] All FWLR (Pt 293) 361 at 375, Faro Bottling Co. Ltd v Osuji [2002] 1 NWLR (Pt 748) 311 at 330. He urged the court to hold that the defendant did not give the claimant a fair hearing on an allegation of fraud which amounts to a crime as the invitation to the disciplinary hearing was not signed. He further submitted that by virtue of the combined effects of section 383, 384, 385, 386, 388 and 390 of the criminal code fraud is a criminal act punishable by imprisonment. He also referred to the Advanced Learners Dictionary for the definition of fraud and submitted that the use of the words “found guilty” in the letter of dismissal is characteristic of a return of guilty verdict usually handed down by a criminal court. He submitted that an administrative panel set up by the defendant cannot try and convict the claimant for crime as it lacks the jurisdiction and competence to try a criminal matter. He cited Amaechi v INEC [2008] All FWLR (Pt 407) 1 at 195, University of Uyo v Essel [2006] All FWLR (Pt 315) 80, Abang v University of Calabar [2008] All FWLR (Pt 403) 1365 at 1374. It was his submission that although an employer is not bound to give reasons for terminating the appointment of his employee, where he gives a reason, the law imposes on him a duty to establish the reason to the satisfaction of the court citing SPDC Ltd v Olanrewaju [2009] All FWLR (Pt 458) 208 at 222. He submitted that this court has jurisdiction to entertain a libel and slander claim by virtue of the provisions of section 254C(1) (a) of the 1999 Constitution as amended; that when libel or slander arises from the workplace, this court has exclusive jurisdiction to entertain same and were many claims arise from the same cause of action, such claims must ordinarily be made in a single suit citing Opara v Ikegwuru [2007] All FWLR (Pt 374) 254 at 280. He submitted that the claimant has proved libel and slander with the publication of the defamatory statement that he was convicted of fraud. He then urged the court to enter judgement for the claimant. I have considered the originating process, the evidence and written submission and shall adopt the issues formulated by learned counsel as the issues for determination in this judgement. As stated earlier, the defendant did not bother to defend this action. The effect of a party’s failure to call evidence in defence of a claim against him is that he is presumed to have admitted the case made against him by the other party and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd [2006] Vol.6, MJSC 123, Consolidated Res Ltd v Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v Marinho [2006] 15 NWLR (Pt 1002) 316. This however does not mean automatic victory for the claimant because he must succeed on the strength of his case and not rely on the fact that there is no defence before the court. The absence of evidence by the defendant does not exonerate the claimant of the burden of proof placed on him by law. See section 131 (1) & (2) of the Evidence Act 2011, Ogunyade v Oshunkeye [2007] 15 NWLR (Pt 1057) 218. The claimant must adduce credible evidence worthy of belief. Evidence does not become credible merely because it is unchallenged. See Akalonu v Omokaro [2003] 8 NWLR (Pt 821) 190. The question which then arises is whether or not the claimant has adduced credible evidence in proof of his claims. The claimant contends that his summary dismissal was in violation of the principles of natural justice as he was not given a fair hearing on the allegation of fraud because the notice of invitation to the disciplinary meeting was unsigned. In his evidence in chief, the claimant said “I was given a letter to appear before a disciplinary committee. I did not go for the disciplinary hearing because the letter was not signed.” The notice of the disciplinary meeting given to the claimant is reproduced below: NOTIFICATION OF A DISCIPLINARY MEETING Employee: Benjamin Billie Salary Reference Number: 253 Division: CSMO Section: CSB Initiator: Walter Mazola Promoter Contact Number: 7676666 You are hereby notified to attend a DISCIPLINARY MEETING concerning the following allegation/s: Charge 1: Misconduct: Disorderly/Irregular behavior Fraudulent activities, in that you connived with your Subordinate, the store keeper (Reuben Adeyeye) to use generated pin numbers in exchange of physical research vouchers, on several occasions, an activity which led to stock shortage of more than 16 million naira, between May and August 2011. Charge 2: Misconduct: Disorderly/irregular behavior Dishonesty, in that you claimed that you did not have any such dealings with the store keeper, and that you did not know anything about the pin numbers, neither did you collect recharge vouchers from him, whereas written and oral statements attest contrary to your claim. Charge 3: Misconduct: Disorderly/Irregular behavior Gross negligence/dereliction of duty, in that you failed to oversee the activities of your subordinate, the store keeper, thereby resulting in a stock shortage of about 16 million naira between May and August 2011. The MEETING will be held on: Date: Time: Venue: Friday October 7, 2011. 10.00 a.m. Head office, 231 Adeola Odeku and you are hereby instructed to be present. You are also notified of the following rights which you may exercise: 1. You may be represented by a co-worker. 2. You may bring any witnesses or evidence to substantiate your evidence at the meeting. 3. You have access to all statements presented at the enquiry. Signature of Employee: Date: Time: Signature of Promoter: Date: Time: Witness: (only required when employee refuses to sign) Date: This is a similar format as that used in notifying the claimant of his “suspension with pay pending the outcome of the investigation and/or subsequent disciplinary enquiry.” The allegations against the claimant are clearly stated on the notice, the date, time and venue of the disciplinary hearing are stated and the claimant is also notified of representation, access to all statements at the enquiry and that he may bring witnesses or evidence in his defence. He was also instructed to be present. Rather than comply, the claimant instructed his lawyers Olu Falana & Associates who on the 5th October 2011 wrote to the defendant stating that the notice of the disciplinary meeting was a worthless document being unsigned and not a basis for a disciplinary hearing, they demanded that the disciplinary panel be reconstituted, that the defendant furnish the claimant with the written and oral statements made against him through their office and that they would accompany the claimant to the disciplinary meeting for the purpose of legal representation. The claimant did not attend the disciplinary hearing scheduled for the 7th October. The defendant then wrote him another letter and rescheduled the meeting for 14th October 2011. The letter was received personally by the claimant and is reproduced as follows: 7th October 2011 Dear Mr Billie, ABSENCE FROM DISCIPLINARY MEETING Please be informed that your absence from the internal disciplinary meeting, scheduled for 7th October 2011, is a show of flagrant disobedience to Management and non-compliance to company procedures. However, you have the last chance to appear on Friday 14th October 2011. Failure to show up would mean that you willfully absconded. Thank you. Yours faithfully, Olusola Aigbe Head, Human Resources. The claimant again failed to attend this hearing and by a letter dated 14th October 2011, the defendant dismissed him. The letter of dismissal is reproduced as follows: 14th October, 2011. Mr Benjamin Billie 44, Oloruko-Oba Street Ayobo, Ipaja, Lagos. Dear Mr Benjamin, LETTER OF DISMISSAL Reference to our letter dated 7th Ocotber, 2011 wherein we refuted your absence from the internal disciplinary meeting and also advised that you make yourself available for the panel of enquiry who would determine the outcome of the matter for which you were suspended. We hereby notify you that the panel of enquiry sat on Friday, 14th October, 2011, a session you were duly notified and invited which you refused to honour. Following the outcome of the investigation by the security unit and the overwhelming evidence against you, the panel finds you guilty of fraudulent activities in that you connived with the CSB store keeper to use generated pin numbers in exchange for physical recharge vouchers and dishonesty in that you claimed not to have any dealings with the store keeper and knew nothing about the pin numbers whereas written and oral statements attest contrary to your claim. Consequently, you are hereby summarily dismissed. We wish you all the best in your future endeavours. For: Multi-links telecommunications Limited. Olusola Aigbe Head: Human Resources. Fair hearing is opportunity given to a party to present its case. To satisfy the rule of fair hearing, a person likely to be directly affected by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make a representation in his own defence. It is sufficient if the complaint conveys to him the nature of the accusation against him. See Yusuf v Union Bank Nig. Ltd [1996] 6 NWLR (Pt 457) 632 PHCN v Alabi [2010] 21 NLLR (Pt 58) 1. The evidence before the court shows that the defendant gave the claimant ample opportunity to defend himself of the allegations against him which was disclosed to him. He chose not to defend himself by refusing to attend the two sittings of the disciplinary meeting. Raising the issue that the notice conveying the disciplinary hearing was unsigned is simply an excuse not to attend the hearing. The letter of the 7th October 2011 conveying the rescheduled date of 14th October 2011 was signed yet the claimant still refused to attend the hearing. This is disobedience to lawful orders of the management which is an act of gross misconduct. See U.B.N. Ltd v Ogoh [1995] 2 NWLR (Pt 380) 647. The claimant did not lead any evidence showing that the composition of the disciplinary panel was tainted with bias. I find that the claimant was given a fair hearing by the defendant, see Olatunbosun v NISER [1988] 3 NWLR (Pt 80) 25, Garba v University of Maiduguri [1986] 1 NWLR (Pt 18) 550 and I so hold. The claimants case is that the allegation for which the disciplinary panel was set up to try him is a crime. This he contends the panel is not empowered to do and cannot establish the commission of a crime for which it dismissed him, not being a competent criminal court. Section 5.7 of the Business code of Ethics of the defendant provides as follows: Fraudulent or unlawful conduct. a. Employees are obliged to report any suspected, fraudulent, unlawful, or dishonest conduct affecting the business operations of the company to HR. Failure to report any fraudulent, unlawful or dishonest conduct may lead to disciplinary action up to and including dismissal. b. Any unlawful fraudulent and or dishonest conduct committed by an Employee whilst on duty, or committed outside business hours, that affects the daily business operations of the company, such conduct may be grounds for disciplinary action up to and including dismissal and civil/criminal prosecution. The three charges against the claimant as seen in the notice of a disciplinary meeting all bother on misconduct. It is not a requirement of the Law that before an employer summarily dismisses his employee on account of gross misconduct involving dishonesty and bordering on criminality, there has to be criminal prosecution. See Yusuf v Union Bank Plc [1996] 6 NWLR (Pt 457) 632, A.T.A Poly v Maina [2005] 10 NWLR (Pt 934) 487. Bamgboye v University of Ilorin [2001] FWLR (Pt 32) 12. An employer has a choice either to prosecute an erring employee or to dismiss him summarily. This is also seen in section 5.7(b). By the defendants own evidence in chief he said: “The case was not investigated by the Police. I was not charged to court.” This shows that the defendant decided not to prosecute the claimant but to investigate the matter administratively as misconduct. It set up the disciplinary meetings to investigate the allegations of misconduct involving fraud, dishonesty and gross negligence against the claimant. The claimant refused to attend the meetings to defend himself and was found guilty of fraudulent activities and dishonesty which are grounds for disciplinary action under the defendants Business Code of Ethics. The defendant then exercised its discretion in favour of summary dismissal of the claimant instead of prosecution. This is in line with section 5.7 of the Business Code of Ethics. See Olanrewaju v Afribank Plc [2001] 2 NWLR (Pt 731) 11. The claimants submissions that the disciplinary panels return of a “guilty” verdict is in respect of a crime is incorrect. It investigated a case of misconduct as seen in the charges preferred against him in the notice of the disciplinary meeting. The claimant of his own volition disobeyed the defendants instructions to be present at the two meetings; an act of gross misconduct, and was found guilty of the charges which are classified as a misconduct under the defendants Business Code of Ethics and summarily dismissed instead of being prosecuted. The claimants dismissal is lawful and I so hold. The claimant seeks an order of court for the sum of N276,132.72 being one months salary in lieu of notice and N800,000 Solicitors fees. It is pertinent to state that the claimant did not frontload or at any time exhibit his contract of employment so it is not known how the contract may be brought to an end by either party. However, in the case of U.B.N. Ltd v Ogboh [1995] 2 NWLR (Pt 380) 647 at 669 Paragraph F-G, the Supreme Court per Iguh JSC said: “No doubt, were 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 employers or working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages.” I therefore hold that the claimant having been lawfully dismissed for acts which bother on misconduct and gross misconduct is not entitled to one months salary in lieu of notice or any sums at all. The claimant is also claiming damages for libel and slander. Section 254C (1) (a) of the 1999 Constitution as amended has not clothed this court with jurisdiction to entertain matters on defamation. The operative terms in section 254C “related to or connected with,” “matters arising from workplace” and “matters incidental thereto or connected therewith” cannot be stretched to include libel and slander. This claim (f) is hereby struck out. For all the reasons given above, I hereby dismiss the claimants claims (a) (b) (c) (d) (e) and (g) in their entirety. The claimants case is frivolous, misconceived and lacks merit. Judgement is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae