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REPRESENTATION A.R. Daramola for the Claimant. Victor Gwam for the Defendant. JUDGMENT The Claimant by his General Form of Complaint filed on 26th July 2012 sued the Defendant praying for the following reliefs: 1. Payment of the sum of One hundred and twenty thousand Naira (N120,000.00) being one month salary in lieu of notice of termination which ought to be given by the Defendant to the Claimant before the unlawful termination of the claimant employment by the Defendant on 17th May, 2012. 2. Payment of the sum of Three hundred and twenty-one thousand, six hundred Naira (321,600.00) only being the total unremitted pension deductions from the Claimant’s monthly salary by the Defendant for the year 2009, 2010, 2011 and January to April 2012. 3. Declaration that the act of withholding the “Confidential Report” in favour of the Claimant from West African Examination Council (WAEC) by the Defendant is illegal, unreasonable and in violation of the Claimant’s right. 4. Five hundred thousand Naira (N500,000.00) only as damages for the pain and suffering suffered by the Claimant for the unreasonable with holding of the “Confidential Report” thus causing delay in receiving letter of employment the Defendant having terminated the Claimant employment and/or for loss of another job opportunity with West African Examination Council (WAEC) owing to the denial of the “Confidential Report”. The Complaint was accompanied by all the requisite processes in accordance with the Rules of this Court. The Defendant filed its Statement of Defence on 6th December 2012 which was amended on the 9th May 2013. The Claimant on 14th December, 2012 with the leave of court filed his reply to the Statement of Defence. The case for the Claimant was that he was an Accountant and former employee of the Defendant an Auto Company registered under the Part C of the Company and Allied Matters Act Laws of the Federation of Nigeria, 2004; that he was employed sometimes in November 2007, but resumed fully in January 2008 on an annual package of N540,000.00; that after serving the mandatory 6 months probation satisfactorily his appointment was confirmed by the Defendant; that he served the Defendant Company for close to 5 years meritoriously with honesty and satisfaction which earned him promotion twice. Claimant averred that sometimes in 2011 he saw an advertisement on-line for job vacancy with West African Examination Council (WAEC) and applied; that his application was successful which necessitated WAEC to send “Confidential Report” to the Defendant in his favour; that the said 'Confidential Report' was sent to the Defendant as the Claimant in his application informed them that he was still in the employment of the Defendant. Claimant further averred that when other co-applicants started receiving their letters of appointment he contacted WAEC where he was told the Defendant had not forwarded his 'Confidential Report' sent to them on the 20th January, 2012; that with this information he met with the Human Resources Manager who claimed the hard copy was misplaced; that he pleaded with WAEC to send a soft copy which was later sent to the Defendant’s Human Resources Manager who completed it and took it to the Chairman to sign but rather than signing it his appointment was terminated on the 17th May, 2012. The Claimant further averred that his appointment was terminated without any notice in violation of his letter of appointment. The Defendant’s case was that the Claimant was its former employee; that he was employed as an Accountant and that after serving the normal 6 months probation, his appointment was subsequently confirmed; that at the time the Claimant was promoted the Defendant was not aware the Claimant had been disloyal to it; that the Claimant was disloyal and breached the Company’s Rules and Regulations specifically Article 19 at page 20 and Part 3 Clause (e) at page 31. The Defendant averred that it never received any hard copy of “Confidential Report” in respect of the Claimant from WAEC or any other person; that upon enquiry from the Claimant about the Confidential Report, he was informed that the Defendant never received it. The Defendant averred that sometimes in May 2012, the Claimant informed the Defendant that he applied for a Ph. D programme in Ghana and WAEC was the body in charge of the said programme; that WAEC would require a Letter of Introduction from the Defendant which the Defendant obliged the Claimant and issued a Letter of Introduction to WAEC dated 8th May, 2012; that the Claimant later informed the Defendant that the letter dated 8th May, 2012 was not adequate and what was required was a reference check and form of the said check would be sent by mail to the Defendant. The Defendant averred that on enquiry from the Claimant if he had sought employment with the WAEC the Claimant bluntly denied and stated that the Confidential Report was required for the Ph. D programme; that the Defendant received the Confidential Report and forwarding mail dated 17th May, 2012 which stated that the Claimant was a former employee of the Defendant had been considered for the position of Assistant Registrar with WAEC; that upon receipt of the Confidential Report and mail confirming that the Claimant had been job hunting during the hours he was to render service as an employee of the Defendant; it further came to light that the Claimant lied about the P. D programme and continued to earn a salary from the Defendant while using the period of his employment with the Defendant to go for various tests and interviews in a bid to get another job; that the Claimant was disloyal and this was the reason for the termination of his services. The Defendant further averred that it did not owe the Claimant an obligation to respond to the Confidential Report or in any manner assist the Claimant in his job hunt; that the Claimant’s act of disloyalty did not entitle him to any favour from the Defendant; that the Defendant does not owe the Claimant any sum at all and did not cause the Claimant to lose any job or cause him any pain or suffering. The hearing of this case commenced on 7/10/13, Claimant testified as CW1, he identified and adopted his 2 witness statements on oath dated 26/7/12 and 28/2/13 and tendered 14 documents marked as C1-C14. Under cross examination, CW1 testified that while he was in the employment of the Defendant that he applied to work with WAEC; that he informed WAEC that he was working with the Defendant; that he was aware WAEC contacted Defendant and forwarded a Confidential Report to the Defendant; that he did not know if his pension was paid to the Pension Funds Administrator; that he knew that under contributory pension scheme pensions are paid to the Pension Funds Administrator and that the procedure is for the PFA to eventually pay him on retirement but the Defendant only made remittances for just 2 years. Claimant further testified under cross examination that he did not ask the Defendant to write any letter of introduction for him or on his behalf; that the Human Resources Manager decided to give him a letter dated 8/5/12 because she could not find a copy already sent to WAEC; that Defendant did not ask if he was still its employee but rather instructed the Human Resources Manager to issue him with a letter of termination of employment. The Defendant opened its case on 7/11/13. It called one witness - Adekunbi Adeeko as DW1 and tendered one document. DW1 identified her witness deposition on oath dated 9/5/13 and adopted same as her evidence, tendered Defendant's Employee handbook and urged the Court to dismiss the suit in its entirety with substantial cost. Under cross examination, DW1 testified that Claimant was promoted in December 2011; that she discovered Claimant to be fraudulent sometime in may 2012; that Claimant's appointment was terminated on the basis of Article 19 of the Employees Handbook; that she did not know if WAEC anchored Ph. D program for non-employees; that she verified the information given by the Claimant to WAEC on the basis of the e-mail sent by WAEC to Defendant; that she did not know exactly when the Claimant was paid for the 17 days he worked before his appointment was terminated and that the money for the 17 days was paid after Claimant's appointment had been terminated. At the conclusion of trial, learned Counsel on either side were ordered to file their respective final written addresses for adoption. The final written addresses were adopted on 6/3/14. In his final written address dated 20/12/13 and filed 23/12/13, learned Counsel for the Defendant submitted a lone issue for determination as follows: Whether the Claimant is entitled to the claims he is making in this suit from the Defendant. Arguing this issue, Counsel submitted that the employment of the Claimant is a contract which could be terminated by either party contending that he who hires can fire as well. Counsel cited Akinfe v. UBA Plc (2007)10 NWLR (Pt. 1041) 185 and Garuba v. Kwara Investment Co. Ltd (2005)1 SC (Pt. 11) 80. It was the submission of the learned Counsel that one of the grounds recognised for which the Defendant may dismiss Claimant is dishonesty, citing Yusuf v. Union Bank of Nigeria Ltd (1996)6 NWLR (Pt. 457) 632. Counsel argued that the Defendant has proved through oral testimony and documentary evidence that Claimant was dishonest and wanted the Defendant to corroborate his dishonesty. Relying on Article 21 of the Defendant Employee Handbook Counsel submitted that Defendant appropriately summarily dismissed the Claimant and that the phrase Termination of Employment used in the letter was in fact a summary dismissal of the Claimant from the Defendant. He submitted further that in the light of that fact, Claimant was not entitled to the claim for =N=120,000.00 in lieu of notice of termination of employment. In relation to the Claimant's claim for =N=321,000.00 being the total unremitted pension deduction from the Claimant's monthly salary by the Defendant from 2010 to April 2012, learned Counsel submitted, citing sections 1(1), 3(2) and section 11(5) of the Pension Reforms Act, 2004 that Claimant's pension deductions are payable to the custodian specified by the Claimant and not to the Claimant and that in any event Claimant cannot from the withdraw from the said sum until he attained the age of 50. On the third claim, learned Counsel argued that a reference is the act of sending or directing one person to another for information or advice as to character solvency and so on of a third person who desires business dealings with the first and that an employer who opts to give a reference may be exposed to actions for deceit, negligent misstatement and defamation, citing Hedley Bryne & Co. v. Heller and Partners Ltd (164) A.C 465 and Black's Law Dictionary 9th Edition at page 1383. Counsel submitted that Defendant was not bound to provide the Claimant with a reference and that had the Defendant done so it would have been abetting the Claimant's dishonesty and fraud. It was thus the submission of learned Counsel that since there was no duty imposed on the Defendant to provide the Claimant with a reference, the Claimant has no cause of action against the Defendant. He urged the Court to dismiss the claim accordingly. In relation to the Claimant's claim for =N=500,000.00 as damages, Counsel submitted that that claim was caught up by the argument against the third claim since the Defendant does not owe the Claimant a duty to respond to the Confidential Report or give the Claimant a reference of any sort. Aside, Counsel submitted that Claimant did not lead evidence to support the pain and suffering suffered due to the act of the Defendant and not having done so, the claim must be deemed abandoned, citing Buhari v. Obasanjo (2005)2 NWLR (Pt. 910) 241. Counsel urged the Court to so hold and dismiss all the prayers sought by the Claimant. Claimant's final written address was dated 7/2/14 and filed 10/2/14. In it, learned Counsel submitted 5 issues for determination. They are as follows: 1. Whether the Claimant breached any provision of the Company's Handbook 2. Whether the Defendant complied with the provision of Part 2 Article 17(1) of the Company's Employee Handbook and Clause 6 of the Letter of Offer of Employment 3. Whether the Defendant remitted the Claimant's deductions and employer's contribution in full compliance with the provision of Pension Reform Act, 2004. 4. Whether or not the Defendant rightly withheld the 'Confidential Report' from West African Examination Council (WAEC)? if any. 5. Whether or not the Claimant suffered any loss or injury as a result of the Defendant's unreasonable act of withholding the Confidential Report. Learned Counsel argued issues 1 and 4 together. It was the argument of the Claimant that he did not breach any of the provisions of the Defendant's Handbook. Counsel referred to Article 19 and Part 3 thereof and stated that there was no evidence of breach of the provisions. According to learned Counsel, 'to be disloyal simply means not to be (or to no longer) in agreement, support, cooperate or faithful to the course of one's superior, boss or contemporary to whom you once maintain or share a robust or close affinity with. To be fraudulent on the other hand is to be dishonest'. Counsel argued that throughout the Defendant's averments, it was not shown that the Claimant failed in his duty or misappropriated Defendant's funds as Finance Manager and that Defendant's allegation of disloyalty and fraud was tied to the information supplied by Claimant to WAEC in the Claimant's on-line application for job. Counsel submitted further that Claimant did not carry on any business or trade with WAEC; that Claimant was not in the employment of WAEC rather he was an applicant; that Defendant is an auto dealer dealing in the sales, supply and repairs of automobile within Nigeria while WAEC is an examination conducting body within West African sub region and that Defendant's Handbook did not forbid her staff from seeking for better job but merely stated that her staff must not be in any other employment while still working for her. Counsel further submitted that the Defendant's denial of receipt of the hard copy of the 'Confidential Report' is a deliberate falsehood caused by malice afterthought with intent to frustrate and deny the Claimant the opportunity of a better job. Learned Counsel urged the Court to resolve the 2 issues in favor of the Claimant. On issue 2, learned Counsel reproduced the provision of Part 2 Article 17(1) of the Defendant Employees Handbook as follows: ''It is fully understood and recognised that the Company or the employee may terminate the employment without giving any reason whatever by giving the notice below- For unconfirmed staff: Two weeks' notice or two weeks' salary in lieu of notice on either side For confirmed staff: One month's notice in writing or one month's salary in lieu of notice on either side''. According to Counsel, Defendant failed woefully to comply with the above provision in relation to notice. Relying on Idonibove v. NNPC (2003)2 SCM 103 at 122-123, Counsel submitted that Defendant is under an obligation to act within the terms of employment as contained in its Employee Handbook. He urged the Court to resolve this issue in favour of the Claimant. On issue 3, Counsel contended that throughout the 22 paragraph amended statement of defence and the 25 paragraphs' Defendant's written statement on oath nowhere did the Defendant aver or testify that she remitted the Claimant's pension deductions and contributions whether promptly as and when due or remitted same at all to date. Not having denied same, Counsel submitted that these facts must be deemed admitted, relying on Balogun v. UBA Ltd (1992)6 NWLR (Pt. 247) 336 at 349, Nwokoro & Ors. v. Onumo & Anor (1999)9&10 SCNJ 63 at 79 and UBN Plc v. Emole (2002)2 SCM 143 at 156. He urged the Court to resolve this issue also in favour of the Claimant. On issue 5, learned Counsel stated that this issue forms integral part of issue 4; that Defendant owed WAEC a duty to oblige the Council with information that will assist it to decide on the Claimant and that Defendant having failed to do so, that act caused the Claimant great loss and that ''... damages claimed cannot adequately compensate the Claimant for the trauma, emotional stress, pain and loss of job opportunity but just as a punitive measure''. Counsel urged the Court to resolve this issue in favour of the Claimant as well. I have read and considered all the processes filed in this case along with the oral submissions of learned Counsel on both sides. I have also evaluated all the evidence and exhibits tendered in this case. Having done so, l have come to adopt the lone issue set down for determination by the Defendant as sufficient to dispose of this case. The lone issue is thus: Whether the Claimant is entitled to the claims he is making in this suit from the Defendant. The first claim is for payment of the sum of One Hundred and Twenty Thousand Naira being one month salary in lieu of notice of termination which ought to be given by the Defendant to the Claimant before the unlawful termination of the Claimant's employment by the Defendant on 17th May 2012. Some of the exhibits tendered are central to the determination of this issue and l consider it imperative to set them out. The first is Exh. C1 - the letter of offer of employment by the Defendant to the Claimant while the second is the Defendant's Employee Handbook - Exh. D3. Exh. C1 is dated 29/11/07, Clause 6 of same with a sub-head Termination states thus: ''Either party may terminate this agreement with a (a) Two weeks notice before confirmation or (b) One month's notice after confirmation or payment in lieu of notice''. By Exh. C2, Claimant's employment was confirmed effective from 1/7/08. Now, Exh. C5 is headed Termination of Employment and dated 17/5/12. The second paragraph of that Exhibit stated as follows: ''This is to inform you that your employment has been terminated by the company effective 17th day of May 2012. This has become necessary given your gross misconduct in violating the company's rules and regulation''. There is no doubt that an employer has the right to discipline his employee. Modes and types of discipline also vary and what discipline to impose on an employee is often a function of the offence or misconduct of the employee. It may range from mere verbal warning to summary dismissal. I liken summary dismissal in this context to death penalty in criminal adjudication. In all these however it is important and indeed mandatory for the employer to ensure strict compliance with the terms and conditions of employment which are usually contained in letter of offer of employment given by the employer to the employee. In this case l find that by Exh. C1, Claimant is entitled to a month notice or a month salary in lieu of such notice. I further find that the requisite notice was not served on the Claimant as Exh. C5 took effect from the date it was written i. e 17/5/12. The Defendant not having given the Claimant a month notice l hold that the Claimant is entitled to a month's salary in lieu of same. Learned Counsel to the Defendant argued in his written address that the Claimant having violated Article 21 of the Employee Handbook was summarily dismissed. Counsel submitted ''We aver that 'Termination of Employment' was in fact a summary dismissal of the Complainant from the Defendant company''. I have examined, read and understood the provisions of Article cited by the learned Counsel. Without much ado, it is sufficient for me to state that the argument of learned Counsel that the phrase Termination of Employment as used in Exh. C5 meant summary dismissal is weak and does not find any support both in law and logic. Summary dismissal is the maximum punishment that can be awarded to an employee. I have said it before in this judgment and l say it again that the punishment of summary dismissal is like death penalty in criminal law. With summary dismissal, an employee has nothing to claim from his former employer no matter for how long he has served. With summary dismissal a career is destroyed almost permanently and with ignominy. This is not the same as termination of employment where an employee as in the instant case successfully claim entitlement to requisite notice or payment in lieu of same. Besides, in cases of termination of employment, the concerned employee may in appropriate cases be entitled to gratuity. In any event, there exists a world of difference between to terminate and to summarily dismiss. I so hold. Relying on Article 21 of the Defendant Employee Handbook that the Defendant appropriately summarily dismissed the Claimant and that the phrase Termination of Appointment used in the letter was in fact a summary dismissal of the Claimant from the Defendant is certainly not acceptable. I therefore find and hold that the Claimant being a confirmed staff of the Defendant and not having been given one month notice, he is entitled to the sum of =N=120,000.00 being one month salary in lieu of the requisite notice as stated in his letter of employment. The second claim of the Clamant is for payment of the sum of Three Hundred and Twenty One Thousand, Six Hundred Naira only being unremitted pension deductions from the Claimant's. monthly salary by the Defendant for the year 2009, 2010, 2011 and January to April 2012. With the coming into force of the Pension Reform Act, 2004, and the new contributory pension scheme, both the employer and employee make contributions to the scheme for the benefit of the employee. Employees are required to chose a Pension Funds Administrator to look after their contributions. Pension deductions are therefore mandated to be paid directly and monthly to the Pension Funds Administrator of the employee's choice. By Exh. C1, Claimant had been in the Defendant's employ since January 2008. The present claim for payment of pension deductions was from 2009 to 2012. No claim is made for pension deductions made from 2008-2009. Claimant under cross examination testified that ''...Defendant only made remittances for just 2 years ...''. My understanding of this testimony is that Claimant has a Pension Funds Administrator to which Defendant had made pension remittances for only two years in the past but yet to made remittances for the years the Claimant is laying claim. It is not the law that pension deductions where not remitted should be paid back to the employee, see Section 1(1), Pension Reform Act, 2004. This Court is however empowered to order the Defendant to comply with the law by remitting all pension deductions from the Claimant but yet to be remitted as appropriate to the Claimant's chosen Pension Funds Administrator. I so hold. The third claim is for a declaration that the act of withholding the Confidential Report in favour of the Claimant from West African Examination Council is illegal, unreasonable and in violation of the Claimant's right. Defendant had claimed that it did not receive any such Confidential Report and stated further that in any event it was not under any obligation whatsoever to write the Confidential Report on behalf of the Claimant. Claimant did not prove to Court the law which made the act of the Defendant illegal or the law so violated by not writing a confidential report for him. I find merit in the argument and submissions of learned Counsel to the Defendant that the Defendant was not in any way obliged to the Claimant in respect of the said Confidential Report. This claim therefore fails and is accordingly refused. The 4th claim of the Claimant is for =N=500,000.00 only as damages for the pain and suffering suffered by the Claimant for the unreasonable withholding of the Confidential Report thus causing a delay in receiving letter of employment, the Defendant having terminated the Claimant's employment and/or loss of another job opportunity with West African Examination Council owing to the denial of confidential report. The success of claim 4 is predicated on claim 3. Having held that the Claimant is not entitled to the declaration sought, this claim also fails and is accordingly refused. After all as Lord Denning pointed out in UAC v. MacFoy (1962) AC 152, you cannot put something on nothing and expect it to stay there, it will collapse. Finally and for the avoidance of doubt, l find and hold as follows: 1. The Defendant shall pay to the Claimant the sum of One Hundred and Twenty Thousand Naira only being the one month salary in lieu of notice of termination of appointment to which the Claimant was entitled by virtue of his contract of employment with the Defendant. 2. Defendant shall pay the sum of Three Hundred Thousand and Six Hundred Naira only to the Pension Funds Administrator of the Claimant being the total unremitted pension deductions from the Claimant's monthly salary by the Defendant for the years 2009, 2010, 2011 and January to April 2012. 3. Claims 3 and 4 of the Claimant fail for the reasons stated in this judgment and are accordingly refused. 4. Cost of this proceedings assessed at =N=50,000.00 All payments are to be made to the Claimant by the Defendant within 14 days of this judgment. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge