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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: OCTOBER 16, 2014 SUIT NO: NICN/LA/146/2013 BETWEEN Mr. Izose Nduka - Claimant AND Unilever Nigeria Plc - Defendant REPRESENTATION U.E. Chukwueke for the Claimant. Abimbola Ayorinde (Mrs) for the Defendant. JUDGMENT On 20/3/13, the Claimant by a General Form of Complaint claimed against the Defendant as follows: 1. ''The sum of N20 Million Naira only being his entitlements for the period of 20 years for which he served the company. 2. An Order of the Honourable Court that he (the Claimant) has right and is entitled to be paid his entitlements for 20 years based on the last paragraph of the letter of summary dismissal dated 10th February, 2012. 3. An Order of the Honourable Court compelling the Defendant Company to pay the Claimant his full entitlements as stated in the letter dated 10th February, 2012. 4. An Order of the Honourable Court that he the (Claimant) is entitled to two (2) month’s salary in Lieu of Notice as he was not given Notice as required by law. 5. An Order of the Honourable Court to declare the said letter of 10th February, 2012 as null and void and of no effect. 6. An Order of the Court that the Defendant Company should pay the Claimant his money as per the contribution made to the Provident Fund. 7. Cost of the action''. Claimant's Form 1 was accompanied with a Statement of Facts and all other requisite processes. On 1/7/13 the Defendant entered an appearance, filed its defence and accompanied same with all processes as required by the Rules of this Court. Subsequently, on 8/10/13 Claimant filed a Reply to the Statement of Defence. The case for the Claimant, as deducible from the pleadings filed, is that the Claimant was at all material time an employee of the Defendant; that Claimant was hardworking and was accordingly rewarded with increased salaries and promotions at intervals; that Claimant worked for a period of 20 years with the Defendant; that on 10/2/12 and without prior notice Claimant was served a Letter of Dismissal dated 10/2/11. According to the Claimant, he attended a Panel of Enquiry set up to try him for no offence and was told to go and await the outcome of the Panel. Claimant filed this suit to enable him collect his entitlements from the Defendant. The case for the Defendant was that Claimant who was once its staff was dismissed for gross misconduct due to his involvement in scrap sales racketeering within the Defendant's Agbara Factory; that Claimant was suspended during the investigation by a letter dated 23/2/12; that a Panel was set up by the Defendant to investigate the racketeering and Claimant afforded opportunity to defend himself by inviting him to the Panel sitting; that after the hearing of the Panel, Claimant was found culpable and Panel recommended Claimant's dismissal; that Claimant was dismissed via a letter dated 10/2/12 and that Claimant is only entitled to his contribution to Provident Fund the access to which is actuated by conclusion of exit clearance process which Claimant is yet to conclude. On 27/11/13, Claimant opened his case and testified as CW. CW adopted his witness deposition dated 20/3/13 and tendered the 16 documents listed on the list of documents to be relied upon at trial and filed on 20/3/13. The documents were admitted and marked as Exh. IN1 to Exh. IN16. Witness urged the Court to grant his claims. Under cross examination, CW stated that on 3rd February, 1994, he was suspended for gross indiscipline and disrespect to constituted authority; that he received his salary for January 2012; that he received letter of dismissal in February 2012 and that he had no notice of dismissal before February 2012 and was doing his job without problem. Witness testified further that in January 2012, he appeared before a panel investigating sale of scrap at Agbara Factory; that he was not told to bring anybody or thing along to that Panel; that he did not complain about the sitting of the Panel; that his dismissal was not as a result of the Panel sitting and that he was not given any opportunity to speak at the Panel sitting. According to the witness, as a practice with Defendant, a staff leaving must complete exit clearance process; that he was issued with a clearance certificate; that he had no problem with the content of the clearance certificate – Exh. 1N 15; that it was stated on Exh. 1N 15 that he owed over N1,000,000; that he has not paid the said sum; that he did not contact the Payroll, Pensions and Tax Specialist for his entitlement as stated on Exh. 1N 11 and that the sum of N20,000,000 that he asked for was what he believed he was entitled to. On 17/2/14, the Defendant opened its case and called one Obinna Aniolobi as its DW. DW adopted his written deposition made on 1/7/13 as his evidence and tendered 14 documents as exhibits. The documents were admitted as exhibits and marked as Exhs. D1, D2, D3a, D3b, D3c, D3d, D4, D5, D6, D7, D8, D9, D10 and D11. Under cross examination, it was the evidence of DW that the Claimant served Defendant for 20 years before dismissal; that he was not paid salary in lieu of notice; that by Exh. D9 para 9b Claimant was not entitled to salary in lieu of notice; that under the circumstance in which claimant was dismissed he would not be entitled to some benefits and entitlements and that Claimant is entitled only to National Provident Fund. DW stated further that it is not stated on the Service Agreement that in event of Dismissal a staff loses all entitlement; that by Exh. D7, he was asked to calculate the entitlement of the Claimant less his indebtedness to Defendant; that the calculation had been done and it was left to the Claimant to come and sign off his indebtedness with the Defendant. According to this witness Exh. D11 was issued by the Defendant to the Claimant; that Claimant’s indebtedness to the Defendant is stated on Exh. D11; that the total is about N1,858,666.81; that Exh. D3d confirmed that Claimant's salary was increased based on his merit and personal contribution to the growth of the Defendant; that Exh. D3c further confirmed Claimant’s positive performance; that Exh. 1N3 attested to good performance of the Claimant; that all increases of salary of Claimant was based on his performance; that there is no Department of Defendant responsible for selling of scraps; that Claimant was a member of Scrap Committee; that the effective date of 10/2/11 on Exh. D7 was an error; that Claimant was paid salary up till January 2012 and that the figure contained on Exh. D10 1 & 2 is the final indebtedness of the Claimant to the Defendant. Upon conclusion of trial, learned Counsel on either side were directed to file their final written addresses for adoption. The final written address of the Defendant was dated 28/3/14 and filed on the same day. In it, learned Counsel set down a lone issue for determination as follows: Whether the Claimant is entitled to the reliefs as claimed. Learned Counsel submitted that the act of the Claimant in involving himself in sale of scraps when he was part of the Defendant's Committee set up to deal with the scrap undermined the relationship of confidence which existed between the Claimant and the Defendant and amounted to a gross misconduct for which the Claimant was dismissed. Counsel cited Eze v. Spring Bank Plc (2012)205 LRCN 157. Counsel further submitted that Claimant failed woefully to prove that his dismissal was unlawful and that he is entitled to the reliefs claimed, citing Ziideh v. RSCSC (2007)145 LRCN 530. Counsel referred to Exh. D8 Defendant Management Handbook which on page 41 paragraph 5.5 gave the Defendant the right to summarily dismiss the Claimant for grave misconduct; Exh. D9, the Service Agreement which also allowed Defendant to dismiss Claimant without notice for act amounting to grave misconduct. On claim for =N=20 Million, learned Counsel, citing Eze v. Spring Bank Plc (supra) submitted that as a dismissed employee Claimant had no such entitlement. In any event, Counsel went on to submit that Claimant failed to explain how he arrived at the figure not having placed any evidence before the Court. The position of the law, according to learned Counsel, is that in a case of wrongful termination or dismissal of an employee, the proper measure of damages is the amount the Claimant would have earned had the employment continued or been properly determined. Counsel cited SPDC v. Olanrewaju (2009)171 LRCN 255. It was also the submission of learned Counsel that the Court cannot declare the letter of dismissal- Exh. D10, null and void and of no effect as the Court will not impose a willing worker on an unwilling employer. In relation to the Claimant's claim for contribution to the provident fund, learned Counsel restated the position of the Defendant as contained in Exh. D10. Counsel submitted that Claimant is entitled to his contribution to the provident fund subject to the outstanding indebtedness of the Claimant to the Defendant. Learned Counsel urged the Court to dismiss the present suit as the Claimant has failed to prove the reliefs he sought. Claimant's final written address was dated 2/5/14 and filed on 15/5/14. Learned Counsel for the Claimant also set down a lone issue as follows - That the Claimant is entitled to the reliefs claimed. According to learned Counsel, Defendant was the maker of Exh. D7 and DW admitted under cross examination that Claimant was entitled to be paid his entitlement and that the said entitlement has been calculated and only left for the Claimant to collect same. Counsel also referred to paragraph 10 of the statement of defence and paragraph 9 of the witness statement on oath which all pointed to the fact Defendant agreed that Claimant was entitled to some entitlements. Counsel stated further that Exh. D10 Agreement of Contract of Service did not state that any employee summarily dismissed will not be paid his entitlements. According to Counsel, Claimant has returned the property of the Defendant in his possession to the Defendant and this fact is supported by Exh. IN15 which is Clearance Certificate. Counsel submitted that the summary dismissal of the Claimant was based on malice or improper motive citing Fakuade v. OAUTH (1993)5 NWLR (Pt. 291) 47 (SC), Ekpeogu v. Ashaka Cement Co. Plc (1997)6 NWLR (Pt. 508) 280 (CA), and WR & PC Limited v. Onwo (1999)12 NWLR (Pt. 630)CA. Finally, learned Counsel urged the Court to grant all the reliefs sought including his contributions to the National Provident Fund which the Defendant already admitted claimant was entitled to. I have read with understanding all the processes filed by learned Counsel in this case including the final written addresses of learned Counsel. I listened with attention to the oral testimonies of witnesses for the parties. In addition, l have reviewed and evaluated all documentary evidence tendered and admitted in this case. Having done so, the sole issue for determination of this case is - Whether Claimant has proved the claims sought to be entitled to same. Before l proceed with this judgment, it is imperative to make one or two preliminary remarks. Of a truth, a Counsel is entitled to the conduct and presentation of his case to the best of his ability. It is also trite that indeed no Court is allowed to dictate to a Counsel how he should present his case in Court. However, a Court is not precluded from offering advice especially at a stage as this which advice may provide guidance to other Counsel in future cases and support the cause of advocacy. Firstly, framing of issue for determination (and framing it correctly) is of paramount importance to adjudication. Usually, issues for determination are framed in form of questions for which answers are sought. Thus, it is not unusual for issues for determination to commence with the word Whether. The way, manner and indeed the style adopted by learned Counsel for the Claimant in framing his lone issue for determination in this case i. e 'That the Claimant is entitled to the reliefs claimed' could certainly be improved upon. The second point, and this is by no means of less importance, relates to proof of reliefs sought before a Court. It appears to me to make for good practice of the law and indeed advocacy in a claim of 7 reliefs for argument to be advanced in respect of each of the reliefs separately. Even where argument in proof of one relief is valid for the other reliefs, it is better for Counsel to refer to each relief sought and state that ''our argument and submission in respect of Relief 2 is adopted in respect of and as valid for Relief 3, 4 and/or 5''. To have just a line of argument and submission in respect of 7 reliefs, as in the present case, l dare say with due respect to the learned Counsel for the Claimant, does not augur well for advocacy as well as the work of the Bench. Claims 1, 2 and 3 of the Claimant are of the same kind. For once the Court declares that Claimant is entitled to =N=20 Million as entitlement for 20 years of service with the Defendant, this, invariably will be followed with an order of Court for the payment of the said amount to the Claimant. One very special and common feature of our adjudicatory system is that the Court is not a father Christmas. Thus to be entitled to a claim before the Court sufficient credible evidence must be adduced in proof of same. Hence, the saying that he who asserts must prove his case to be entitled to his claim, see Ariolu v. Ariolu (2011)11 NWLR (Pt. 1258) 296.. It is also not permitted for a Claimant to rely on the weakness in the case of his Defendant to found the correctness of his claim. That Claimant worked with the Defendant for a period of 20 years is not in contention here. Exh. IN1 showed that he was employed by the Defendant on 23/7/02 effective from 1/8/02. On the other hand Exh. IN11 also evidenced the fact that he was summarily dismissed by the Defendant effective 10/2/12. There is nothing else as credible evidence put forward by the learned Counsel in support of these claims by the Claimant. Learned Counsel to the Claimant however drew my attention to last paragraph of Exh. IN 11 as providing the basis for Claimant's claim. That paragraph states thus - ''The Payroll, Pensions & Tax Specialist is by a copy of this letter, advised to calculate and pay what you are entitled to in accordance with the provisions of the management handbook, less any indebtedness''. Counsel did not draw my attention to how Claimant came about the figure of =N=20 Million that he claimed. Neither was my attention drawn to any provisions in the Unilever Management Handbook - Exh.D8 to which Exh. IN.11 made reference. It is not just open to a party to apply to Court to award it claims. The claims must be supported by credible evidence which will invariably be the basis of any judgment to be entered by the Court. No such credible evidence is provided in proof of these claims in this case. The reliefs 1, 2 and 3 sought are thus refused same not having been proved. I so find and hold. Notwithstanding this holding, which l have no reason to derogate from, l also find Exh. D8 to be central to the said 3 claims of the Claimant. Paragraph 5.6 of Exh. D8 deals with End of Service/Retirement Benefits. Provisions relating to Disqualification were contained under paragraph 5.6.4. It is as follows - ''An employee who abandons his employment or is dismissed from service for any fraudulent act against the Company will not benefit from gratuity and the other benefits except their pension contribution. Same applies to those who resign their appointments to forestall dismissal''. I dare say that this provision equally knocks out the basis of the Claimant's claim for the 3 reliefs. See Adeko v. Ijebu-Ode District Council (1962)1 SCNLR 349, Ante v. University of Calabar (2001)3 WLR (Pt. 700) 239, Ezenna v. KSHSMB (2011)1 NWLR (Pt. 1251) 89 and UBN Plc v. Soares (2012)29 NLLR (Pt. 84) 329. In relation to Claim 4 which is for an order of Court that the Claimant is entitled to two months' salary in lieu of notice as required by law. With due respect to the learned Claimant's Counsel, the basis of this relief is misconceived. Just as there is no need for giving of notice to summary dismissal there is also no provision under any law which mandates an employer to pay salary in lieu of notice in cases of summary dismissal as in the instant case. Where a dismissed employee feels strongly that his dismissal is wrongful, his remedy does not reside in salary in lieu of notice. Provided a dismissed employee proves the wrongfulness of his dismissal he is entitled only to damages. This relief is thus refused. Claim 5 is for declaration that Exh. IN11- letter of summary dismissal dated 10/2/12 is null and void and of no effect. The right will continue to remain inherent in an employer to discipline his employee. The discipline may take nature of a warning which may be written or verbal, suspension, termination of employment or summary dismissal. To out-rightly remove or whittle down that right will necessarily invite chaos into the labour and employment relations. There is evidence before me (Exh. D4) that Claimant was suspended from work in 1994 for altering a document after Personnel Manager had appended his signature. Indeed, the last paragraph of Exh. D4 stated thus- ''You should note that any future act of this nature will lead to a more severe disciplinary action against you''. By Exh. D5 Claimant was suspended '...regarding the sale of scraps in Agbara factory...' Claimant was also directed '... to make yourself available on request by your line manager and leave your contact address and cell phone number''. On 23/1/12, Claimant was invited by Exh. D6 to appear before a Panel of Inquiry on Tuesday 31/1/12. Claimant testified that he appeared before the said Panel but that his dismissal was based on malice. There is no such evidence tendered during the trial of this case. I however have evidence before me that Claimant was dismissed for act which Defendant termed gross misconduct. The law is trite and long established on the authority of Boston Deep Sea Fishing Co. v. Ansel (1888)39 Ch. D 339 that an employee may be summarily dismissed without notice if he is guilty of gross misconduct. What act qualifies as gross misconduct has been explained as a conduct that is of grave and weighty character as to undermine the confidence which should exist between an employee and an employer. To therefore qualify as a gross misconduct to warrant dismissal, it is sufficient if in the estimation of the employer the conduct is such a grave and weighty one to undermine the relationship of confidence between the parties. Defendant alleged serious breaches of its regulation by the Claimant in the sale of scraps at its Agbara factory; Claimant was informed accordingly; suspended; invited to face a Panel of Inquiry before which he appeared and did make presentations. I find and hold that there is no breach of the rule of fair hearing to warrant declaring the letter dated 10/2/12 null, void and of no effect as sought by the Claimant. See Eze v. Spring Bank Plc (2014)3 ACELR 39. Relief 5 sought is thus refused accordingly. Relief 6 is for an order of Court that Defendant Company should pay the Claimant his money as per the contribution made to the Provident Fund. Where an employee is dismissed for gross misconduct he only forfeits his employments rights or those entitlements he would have had but for the dismissal. A dismissed employee is however not precluded from laying claim to any fund to which he made contribution while in the service of the employer. Claimant did not specify how much he was entitled to under the Provident Fund. It is instructive to note that Defendant by paragraph 6 of Exh.D10 acknowledged that Claimant was entitled to his contribution to the Provident Fund and that access to Provident Fund is triggered by the conclusion of exit clearance process subject to any indebtedness of the Claimant to the Defendant. Under cross examination on 27/11/13, Claimant testified that by Exh. IN15 he owed the Defendant over =N=1,000,000.00 while under cross examination on 17/2/14, DW1 stated the indebtedness of the Claimant to the Defendant to be =N=1,856,666.81. That piece of evidence was not challenged by the Claimant. It is here ordered that the Defendant shall pay to the Claimant the latter's contribution to the Provident Fund less the sum of One Million, Eight Hundred and Fifty Six Thousand, Six Hundred and Sixty Six Naira and Eighty One Kobo (=N=1,856,666.81) only. Relief 7 which is for cost of this action is refused the main claim for the institution of this action having failed. It is also dismissed. Finally and for the avoidance of doubt, Reliefs 1, 2, 3, 4, 5 and 7 are refused and dismissed accordingly. With respect to Relief 6, the Defendant shall pay to the Claimant the latter's contribution to the Provident Fund less the sum of One Million, Eight Hundred and Fifty Six Thousand, Six Hundred and Sixty Six Naira and Eighty One Kobo (=N=1,856,666.81) only This judgment shall be complied with within 14 days from the day of delivery. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge