(3-8-09) ODIGIE V. NBC

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION, 1KEJA.
TUESDAY THE 19TH DAY OF MAY 2009
BEFORE THE HONOURABLE
JUSTICE O. A. ADEFOPE-OKOJIE

SUITNO.LD/1911/2003

BETWEEN

MR.OSA ODIGIE } CLAIMANT
AND
NIGERIAN BOTTLING COMPANY PLC } DEFENDANT

Claimant present.
Defendant absent.
Oluwatosin Akanfe for Claimant.
No appearance for Defence.

JUDGMENT

The claim of the Claimant, by his Amended Statement of Claim dated 24/03/2004 is as follows:
"1. A declaration that the Defendant is contractually bound to the Claimant to apply and follow the procedure prescribed by the Defendant's Code of Conduct and Grievance Procedure which is part of its Staff Handbook.

2. A declaration that the Claimant cannot be validly and lawfully dismissed from the employment of the Defendant except in accordance with the disciplinary process provided for by the Defendant's Code of Conduct and Grievance Procedure which is part of its Staff Handbook.

3. Declaration that the Defendant's letter Ref. DHR/PFN/1904/114 dated the 7th day of February 2003 purporting to dismiss the Claimant from the employment of the Defendant, contravenes the Defendants Code of Conduct and Grievance Procedure, and violates the Claimant's right to fair hearing guaranteed by section 36 of the Constitution of Nigeria 1999, as well the rules of natural justice, and is therefore unlawful, null and void and of no effect whatsoever.

4. Order selling aside the said letter of summary dismissal

5. Declaration that the "summary dismissal" of the Claimant by the Defendant is illegal, unlawful, wrongful, null and void and of no effect whatsoever.

6. Declaration that the letter Ref. Dir-HR/PFN, 1904/113 dated the 13th day of January 2003 purporting to suspend the Claimant from the employment of the Defendant contravenes the Defendants Code of Conduct and Grievance Procedure, and violated the Claimant's right to fair hearing guaranteed by section
36 of the Constitution of Nigeria) 999, as well as the rules of natural justice, and is therefore unlawful, null and void and of no effect whatsoever.

7. Order setting aside the letter of suspension.

8. Order directing the Defendant to pay to the Claimant all his salaries and allowances from January 2003 until the day of Judgment, calculated at N923,366.00 per month.

9. Order of Injunction restraining the Defendant, together with its servant and agents from further interfering with the Claimant's quiet performance of his employment with the Defendant. IN THE ALTERNATIVE: ORDER directing the Defendant to;
(i) pay the Claimant the sum of N144,045,200.00 being his loss of earnings in salaries and allowances for the unexpired period of his employment; AND
(ii) to retire the Claimant with full benefits accruing at the age of 55; AND
(iii) to pay the Claimant the sum of N30,000.00 as retirement benefits, IN THE ALTERNATIVE DAMAGES in the sum of N200,000,000.00 (Two Hundred Million Naira) for wrongful and unlawful dismissal against the Defendant.

10. A declaration that the Defendant is not entitled to seize and appropriate to itself the Claimant's fixed deposit in the sum of N2.3 Million.

11. An order directing the Defendant to refund, forthwith, to the Claimant the sum of N2.3 Million with interest at the rate of 21% from 1st January 2003.

12. A declaration that the Defendant is not entitled to seize the Claimant's 406 Peugeot car Registration No. HS 578 KJA.

13. An order directing the Defendant to return, forthwith, to the Claimant the 406 Peugeot car Registration No. HS 578 KJA.

14. A further order directing (he Defendant to restore the said 406 Peugeot car to the state ft was before the seizure.

15. A declaration that the seizure of the Claimant's Allocation Paper dated 22nd August 2001 in respect of a plot of land (Block 54 Plot 15) at Isheri North is illegal, null and void.

16. An order directing the Defendant to return forthwith to the Claimant the Allocation Paper dated 22nd August 2001 and Payment Receipt in respect of a plot of land (Block 54 Plot 15) at Isheri North. "

The witnesses testified by deposition, in compliance with the High Court of Lagos State (Civil Procedure) Rules 2004. In proof of his claim, the Claimant was the sole witness.

The case of (he Claimant, briefly put, is (hat he was employed as a Production Manager with the Defendant, vide a fetter dated the 9"1 day of August 1993. He later held the positions of the Divisional Operations Manager and the Deputy Director of Operations. Lagos /North Divisions. Sometime in the month of December 2002, the new Ikeja Finance Manager of the Defendant discovered a fraud implicating one Mr. Babaasola Esan. The matter was reported to the Police for investigation.

In the course of investigation, the Claimant was, on 9th day of January 2003, invited by the police for interrogation and subsequently detained. Whilst still, in Police custody, he received a letter (Exhibit C7) signed by one Mr. Yemi Ade-John, the Defendant's Human Resources Manager suspending him from duty indefinitely without pay effective from 9th January 2003 until the case against him was "dispensed with".

On 4th February 2003 the Police Handwriting Analyst wrote a report (Exhibit C9), stating that all the eight cheques delivered to him by the police for analysis and allegedly used in the perpetration of the fraud against (he Defendant were spurious and a mere simulation of the Claimant's signature.

Upon his release from detention he resumed work on 14th February 2003 whereupon, he was served with Exhibits C7, and C8 being the letters of suspension and summary dismissal by Mr. Buki Jinadu (DW1). The dismissal was stated to be in accordance with Part 111 Section 18 of the Company's Staff Handbook.

He complained that he was severely beaten and tortured while in police custody and was made to sign off to the Defendant all his money in his bank accounts. He was also made to sign a document transferring to the Defendant the sums of N2.3 Million from a fixed deposit account at Zenith Bank maintained by himself and his wife, a staff of Central Bank, since 2001, weft before this incident and the sum of N79,000 in his account at Guaranty Trust Oank. The Defendant also seized his Peugeot 406 which he had purchased for the sum of N1.7 Million with the aid of a loan from Mr. Esan. The Defendant, in addition, seized his Allocation paper in respect of a parcel of land purchased by him from the Lagos State Government for the sum of N700,000. The proceeds of the fraud were never found in his account. On the contrary about N195 Million was recovered from Mr. Esan's account, while more than N20 Million was recovered from one of his (Mr. Esan's) accomplices,

The Claimant complained that lie was never queried verbally, or in writing in respect of any crime or allegation by the Defendant prior to the receipt of these letters. He was never invited to appear before any disciplinary panel or given any opportunity to reply to any allegation, contrary to the requirements of Exhibit C10, the Defendant's Code of Conduct and Grievances Procedure.

He contended that his dismissal from the employment of the Defendant is unconstitutional being in contravention of Section 36(8) of the Constitution, the Rules of Natural justice and the Defendant's contract with the Claimant as contained in the Code of Conduct and GrievanceProcedure (Exhibit C10) and the Defendant's Senior Staff Handbook (Exhibit C11), which documents, he said, form part of the contract of employment between him and the Defendant.

The Defendant called three witnesses in its defence. It agreed that the Claimant was in its employment as the Divisional Operations Manager and Deputy Director of Operations, Lagos/North division. While not disputing that it summarily dismissed the Claimant from its employment, it insisted that it was justified in the action it took in dismissing the Claimant.

The dismissal, they stated, was in line and pursuant to Section 16 of the Defendant's Senior Staff Handbook on "Rules, Regulations and Conditions of Employment" and on the basis of paragraph 12 of the Managerial Services Agreement dated the 2nd of March 1994.. The Defendant contended that its Code of Conduct and Grievance Procedure (Exhibit C 10) is separate and distinct from its Senior Staff Handbook on Rules, Regulations and Conditions of Employment (Exhibit C11) and as such it did not need to have been complied with in summarily dismissing the Claimant. They were justified in dismissing him in view of his improper handling and dealings with its finances by his act of distributing money and gifts collected from the Defendant's contractors by Mr. Babasola Esan, his subordinate, to the Management staff of the Defendant. They contended that the Claimant admitted this act in a statement to the police during his detention.

Upon conclusion of trial, written addresses were ordered to be filed and exchanged, preceded by the Defendant. The addresses were subsequently adopted in court.

In the Defendant's Address, Olutoyin Uko Esq formulated two main and three subsidiary issues for the determination of the Court as follows:
"(i) Whether the Defendant acting pursuant to the terms of its conditions of employment can summarily dismiss the Claimant on grounds of serious misconduct without affording (lie Claimant a formal hearing?
(ii) Whether the Defendant has established by credible evidence, the allegation of "Serious Misconduct" against the Claimant, justifying the Claimant's summary dismissal from its employment."

in issue one, learned counsel submitted that the relationship that existed between the claimant and the Defendant at all material times was one of master and servant. Where there is no statute or taw regulating how a contract of employment is to be determined as in this case, the terms of (fie written contracts between the parties will regulate how same is determined.

He contended that the Defendant is empowered by Exhibit C11, the Employee's Handbook, to summarily dismiss the Claimant without a hearing. Exhibit C10, the Code of Conduct and Grievance Procedure, he said, is a mere administrative guide to the Defendant on how to conduct the disciplinary procedure. There was thus no need to comply with Exhibit C10 before the Claimant's summary dismissal since the interim report of the police investigation conducted had indicted him. He urged the court to so hold.

On the 2nd issue, learned counsel submitted, based on the provisions of Exhibit C11 that it could be safely concluded that the Claimant was dismissed for serious misconduct. In an action for wrongful dismissal, where the employer alleges misconduct, the onus is oil the employer to prove the misconduct occasioning the dismissal and where such evidence is sufficiently adduced, the fact that the employee was not given a hearing before the dismissal would not preclude the employer from dismissing him.

He submitted that the four grounds stated by the Defendant for summarily dismissing the Claimant are (a) improper dealings of the Claimant in the Defendant's finances, in collecting N11.7 million and distributing it to management staff, (b) The act and conduct of the Claimant in collecting a loan of N1.4 million from his subordinate Mr. Babasola Esan to buy a car, the prime suspect having confessed that he as well as the Claimant are both beneficiaries of the fraud that took place between June and August 2002 (c) the findings of the investigations of the Nigerian Police Force dated 24th of January 2003 which heavily indicted the Claimant, (d) The Report of the independent analyst, Dr. Ndara Ekong, dated the 24th of March 2003, (Exhibit D1 & D2) both of which concluded that the Claimant signed 23 of the 41 cheques used in defrauding the Defendant.

He submitted that the above itemized acts of the Claimant constituted serious misconduct 9 entitling the Defendant to summarily dismiss the Claimant from its employment, ft is trite taw, he said, that there is no fixed rule of law that defines the degree of misconduct that will justify a dismissal. It is not the law, he further submitted that in a case of summary dismissal bordering on criminality, the Claimant must first be tried in a court before he could be dismissed. He urged the court to hold that the Defendant has established by credible evidence, the allegations of gross- misconduct against the Claimant, justifying his summary dismissal in the circumstances.

Even if the Claimant's dismissal was wrongful, the relief sought by the Claimant can not be sustained as the contract between the parties was one of master and servant. His dismissal could at best be wrongful and not unlawful. The only relief the Claimant is entitled to as damages, is the amount he would have been entitled to if he had been given proper notice as slated in his conflict of employment.

Counsel contended further that the onus is on an employee to plead in his Statement of Claim, his letter of appointment and contract of service stipulating the terms and conditions of his appointment. There was variance, he said, between the Claims of the Claimant as endorsed on his Writ and the Pay slip of Sept 2002 relied on by the Claimant, which .came after the promotion of May 22nd 2002. He therefore urged the court to discountenance the same and hold that the Claimant had not established his claim to the entitlement of N923,366.00 per month. All that the Claimant is entitled to is a month's salary as shown in Exhibit C12(1).

On the 2nd subsidiary issue, learned Counsel to the Defendant submitted that Exhibit C9, the Police Report, is a public document within the meaning of section 109 and being a public document it must of necessity be certified before being admissible in line with Sections, 111(1) & 112 of the Evidence Act. Being inadmissible, the document cannot constitute evidence, ft thus lacks probative value and ought to be expunged from the records.

Finally, on the 3rd subsidiary issue, learned counsel contended that paragraph 7,11,19,25,27,31 and 44 of the Claimant's Witness Statement on Oath deposed to on the 16th of January 2007 ought to be struck out on the ground that they constitute evidence of facts which were not pleaded in the Claimant's Amended Claim of 24th March 2004. Evidence of facts not pleaded goes to no issue and is therefore inadmissible. He urged the court to so hold and to dismiss the Claimant's claim in its entirety.

In his Written Address, Professor 0luwole Akanle formulated the following three (3) issues for the Court's determination;

"1. Whether on the proper construction of the Claimant's contract of service, the Defendant was entitled to summarily dismiss the Claimant without a disciplinary hearing as provided for in the Senior Staff Handbook on Rules, Regulations and Conditions of Employment and more particularly the Code of Conduct and
Grievance Procedure.

2. Whether on the evidence before the court the Claimant is guilty of serious misconduct as defined by the contract between the parties.

3. Whether the seizure by the Defendant of the Claimant's properties namely:
(i) the sum of N2,300,000.00 (Two Million, Three Hundred Thousand Naira) which the Claimant had lodged in his deposit account number 6022302659 with the Zenith International Bank and the sum of N79,000.00 (Seventy-Nine Thousand Naira) in the Claimant's account number 20201424134 with Guaranty Trust Bank.
(ii) Peugeot 406 car with Registration Number HS 578 KJA.
(iii) Allocation paper dated the 22nd day of August 2001 in respect of a plot of land known as Block 54 Plot 15 located in the Isheri North Scheme of the Lagos State Government is not unlawful and unconstitutional? "

On Issue 1, Claimant's counsel urged the court to consider the documents that form the Claimant's contract of employment/service to the Defendant, namely Exhibits, C1, C11, C10. D4 and C6. The only conclusion the Court could draw therefrom is that the Defendant failed to comply with the terms of the contract between them and that the claimant was wrongfully dismissed from the Defendant's employment. He contended that the Claimant was never given any opportunity of responding to any allegation of misconduct in line with the requirements of the Code of Conduct and Grievances Procedure, The Claimant's statement to the police wherein he admitted collecting various sums of money from Babasola Esan and the loan advance to him from the same Babasola Esan could not by any stretch of imagination amount to a hearing in satisfaction of the requirements of the claimant's contract of employment. The alleged admissions, he further said, were not made in reply to any query, inquiry or investigation as to whether or not the Claimant's conduct amounted to serious misconduct deserving summary dismissal.

He contended further that the alleged admission by the Claimant only came to the knowledge of the Defendant after the Claimant had been dismissed and not in the course of the hearing of the Claimant's case. The Defendant did not plead or show by evidence that it constituted any panel for the purpose of looking into any allegation against the Claimant. There is nothing, he said, in any of Exhibits C11, C10 and D4 that allows police investigation to be used as a substitute for the contractual documents.

Furthermore, it was wrong of the Defendant to have proceeded to issue Exhibit C8 while police investigation was stiff in progress. The Defendant ought to have awaited the outcome of the prosecution and conviction/acquittal before taking such step.

On the 2nd issue, (earned counsel for the Claimant referring the Court to the elements that must be present in the definition of acts that amount to gross misconduct, submitted that no allegation of serious misconduct has been proved, Exhibit C9, the result from the Forensic Department of the Police detailing the examination and comparison of specimen signatures of the Claimant and the 8 cheques said to have been or allegedly used in perpetrating the fraud,, are proof of this.

He contended that the Defendant's UW3, another handwriting expert, also admitted under Cross-Examination that the Signatures on 5 out of the 8 cheques allegedly used in the fraud are simulated forgeries of the Claimant's signature while the remaining 3 cheques were not among those given to him for examination, !n consequence the Claimant had not been proved to have undermined the confidence of his employer or worked against the interest of the Defendant.

On the second ground relied upon by the Defendant to justify the dismissal, that the Claimant collected a loan of 1.4 Million from Babasola Esan, he contended that at the time the Claimant collected the loan, fraudulent activities of Esan had not come to light, ft was usual among the staff of the Defendant to oblige one another with soft loans. Relying on the leading judgment of Lord Evershed in Laws V. London Chronicle (indicator Newspapers) Ltd, he submitted that for summary dismissal based on serious misconduct to be Justifiable, it must be .of such as to indicate a repudiation of the contract of service or one of its essential conditions by the servant. Borrowing of money from an employee, he said, cannot amount to grave or serious misconduct.

He contended further that the collection of the total sum of 11.7 Million by the Claimant for distribution to management staff was an afterthought by the Defendant. Exhibit C11, he said, does not state that collection of a gift by an employee is a misconduct Justifying summary dismissal.

Furthermore, these acts had been condoned by the Defendant in subsequently promoting the Claimant to a more senior position and sending letters of commendation to the Claimant for doing well. He referred the Court to Exhibits C5 & C6. These acts can therefore not be the basis for summary dismissal,

On the final basis, on which the Defendant premised the Claimant's dismissal, he submitted that the Defendant did not. lead evidence as to the number of cheques involved in the fraud and their particulars and as such, the imputation of serious misconduct on the Claimant on this ground must fail. He urged the court to so hold,

Finally, on the third issue raised, learned Counsel to the Clamant submitted that the Claimant has established that the Defendant seized his legitimately owned properties which violated Sections 43&44 of the Constitution of the Federal Republic of Nigeria,

On the contention of the Defendant that by section 9, and 111(1) of the Evidence Act, Exhibit C9 ought not be admitted since it is a public document, which ought to be certified before being admitted, learned counsel submitted that the Defendant’s argument is misconceived as the document is not a public document within the meaning of section 109 of the Act. He contended that an enquiry made by a police officer, which may or may not result in action is not within the ambit of this section.
TO BE CONTINUED…