(Vol.10 No.2) 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

CONTINUED FROM LAST WEEK…

In his Reply Address to the Claimant's Final Written Address, learned counsel to the Defendant observed that the Claimant's Final Address was not signed by any Legal Practitioner despite the fact that it emanated from a law Firm and not having been so signed, it is incompetent in law, he submitted. He urged the Court lo hold that in the absence of any Address from the Claimant in the circumstances, only the Defendant could he said to have any Final written Address before the court. The English case of Gunton V, London Borough relied on by the Claimant for the position that a wrongful dismissal of an employee did not put an end to the contract of service but its termination is merely of persuasive effect and can not bind the court. The law is that the only indemnity a wrongfully dismissed employee can get is measured in damages for the period of notice he was entitled to. He urged the court to dismiss the suit in its entirety.

The issues that I consider arise for determination in this suit are an amalgam of those raised by the parties. These issues are the following:
1. Whether the claimant was wrongfully dismissed and if so, what remedies are available to him.

Whether the Claimant is entitled to the prayers sought.
I shall take these issues together.

The Claimant has tendered letters of suspension and summary dismissal issued to him by
the Defendant.

The letter of suspension was tendered as Exhibit C7 and reads as follows:

"NIGERlAN BOTTLING CO. PLC
NBC HOUSE, EBUTEMETTA

MEMORANDUM

From; Director of Human Resources
NBC House, Ebute Metta

To: Mr. Osa Odigwe
NBC Plc
Division Office
Ikeja.

Ref.: Dir-HR./PFN.1904/113
Date: 13th January 2003

SUSPENSION:
Following your arrest by the Police on 9th January 2003 in connection with allegations of a
criminal offence, you are hereby suspended from duty indefinitely without pay
effective from 9th January 2003 until the case against you is dispensed with,

The Compensation and Benefits Manager is by copy of this letter advised to withhold
payment of your salary and transport allowance for the period of your suspension.

(Sgd,) ,

YEMIADE-JOHN

DIRECTOR OF HUMAN RESOURCES"

The letter of dismissal is Exhibit C8 and reads as follows:

"Nigerian Bottling Company Plc (RC 902)

D-HR/PFN/1904/114
7th February 2003

Mr.OsaOdtgwe
Division Office
NBC Plc
Ikeja
Lagos

Dear Sir

SUMMARY DISMISSAL

You are hereby dismissed from the services of the Company with effect from 9th January 2003 in accordance with Part III Section 18 of the Company's Staff Hand Book.

Consequently, you will be paid the following:
(a) BASIC SALARY/ALLOWANCES
These will be paid to you up to and including 8th January 2003.
(b) SENIOR STAFF PROVIDENT SCHEME
You will be paid your contributions to the scheme only.

Please note that any amount of money that you may be owing to this Company, or any of the sister Companies, through personal loan, purchases, etc., will be recovered from your entitlements. In the event that your entitlements cannot completely defray such indebtedness however, you will be required to take appropriate measures to settle the balance.

Kindly ensure to handover any property of the Company that may be in your possession including the Identity Card issued to you to the Managing Director, or his appointed representative.

Yours faithfully,
For: Nigerian Bottling Company Plc

(Sgd.)
YEMIADE-JOHN
DIRECTOR OF HUMAN RESOURCES”

As rightfully submitted by both counsel, the contract of service is the pivot or foundation upon which an employee must found his case. In a contract of service reduced into writing by the parties, the court will not look into any matter outside the terms stipulated and agreed between the parties, in determining the respective rights and obligations of the parties. See the case of Ibama v Shell Petroleum Development Company (Nig) Lid (2095) f7 NWLR Part 954 Page 364 at Page 379, per Mohammed JSC.

In an ordinary case of master and servant, if there is a written contract, the court must confine itself to it to interpret and understand the circumstances that regulate the rights and obligations of the parties. That is to say, the contract terms as a whole, including any other document incorporated into it by reference or any other method governing the relationship of the parties to the contract. See the case cited by the Defence counsel of Shelf Petroleum Development Co v Lawson-Jack (1998) 4 NWLR Part 545 Page 249 at 270-271 per Uwaifo JCA (as he then was).

In determining whether the Claimant has been wrongfully dismissed, I must confine myself to the terms that regulate the relationship between the parties.

The evidence of both parties is that the documents that regulate the Claimant's contract of employment are the following:

1. Claimant's letter of employment (Exhibit C 1).
2. Managerial Service Agreement (Exhibit D4).
3. Employee Hand Book for Senior Staff Management Staff and Staff Who Are Projection of Management (sic) (Exhibit D11).
4. Code of Conduct and Grievance Procedure (Exhibit C1O).

Meanwhile Exhibits C1, C10 and C11 were tendered by the Claimant, Exhibit 04 was tendered by Tunde Orukotan DW2, the Defendant's Employees Relation Manager.

On the issue of dismissal, Section 18 of the Employee Handbook for Senior Staff (Exhibit C 11) provides as follows;

"Employees who are found guilty of serious misconduct may be summarily dismissed without notice.

Serious misconduct writ include the following;
(a) Dereliction of duty;
(b) Falsifying any of the Company's records;
(c) Refusal to obey a lawful order;
(d) Stealing;
(e) Sleeping on Duty;
(f) Drunkenness or drug addiction;
(g) Misrepresentation of any facts or information required by and given to the Company;
(h) Fighting while on duty;
(i) Corruption or attempting corruption;
(j) Malicious damage to the Company's property;
(k) Conviction for any criminal act;
(l) Unauthorised and unjustified absence from duty for three consecutive days;
(m) Disloyalty, including failure to disclose any misconduct committed or about to be committed against the Company and known to the employee. These examples of serious misconduct are not exhaustive. Any conduct likely to. endanger the Company's property, well being and operation or the safety of others, may constitute serious misconduct.

Employees dismissed because of serious misconduct will receive their salaries up to the date of dismissal plus any earned leave in -accordance with the Conditions of Employment in this Handbooks. All other benefits of whatever nature shall be forfeited except his contributions (only) to the Junior Staff Retirement Benefits Scheme. "

Exhibit C10, the Defendant's Code of Conduct and Grievance Procedure, stipulates disciplinary procedures whereby infractions therein stated are addressed.

The explanation of Tunde Orukotan (DW2), under cross examination, on the applicability of Exhibit C10 to the Claimant's contract is that it is not all infractions that are dealt with under the Defendant's Code of Conduct. While the minor ones are dealt with under the Staff Handbook and an Administrative Panel set up, the more serious ones are reported to the Police. He claimed that the Claimant was dismissed as a result of the Police investigation and in line with the provision of the Staff Handbook. He agreed that the Defendant, in dismissing the Claimant did not follow the Staff Handbook.

The salient facts of this case, as deposed to by DW1, Buki Jinadu, the Corporate Security Manager of the Defendant, are that, following the detection of fraud in the Ikeja Branch by the new Finance Manager of the Branch, which branch was under the supervision of the Claimant, and the commencement of investigations by the Auditors, .Mr. Babasola Esan, the old Finance Manager of the Ikeja Branch absconded and went into hiding. It was discovered that a series of cheques issued over the period June to November 2002 amounting to over N200 Million and which were countersigned by the Claimant were used in defrauding the Defendant, A petition was written by the Defendant and Mr. Esan was arrested, Mr. Es-an confessed and implicated the Claimant as one of the prime beneficiaries.

While the Defendant alleged that the Claimant was never tortured but voluntarily admitted to being a prime beneficiary and also voluntarily handed over his Peugeot 406 and the sums of N2.3 Million in his deposit account and N79,000 in his current account as part of the money he embezzled, the Claimant denied being part of the fraud or that he signed any of the fraudulent cheques. He claimed he was tortured and that his vehicle, the sums into his account and the allocation of land to him were seized by the Defendant under torture by the Police.

Tile contention of the Defendant is that the "Result and' Comparison of Signature" issued by the Police, consequent upon then" investigation and which exonerated the Claimant as having signed the cheques, his signature having been forged, is that this contradicted the first report by the Police. The Claimant also must have interfered with the police investigation, he having been out on bail al the time. The subsequent report by Reverend Ekong, an independent writing analyst, indicted the Claimant.

While I agree with the Defence witness that the report of the hand writing analyst from the Police, Exhibit C9, exonerated the Claimant, the cross examination of the independent hand writing analyst. Reverend Ekong revealed that none of the fraudulent cheques were signed by the Claimant but were a simulation of his signature.

In effect, both handwriting analysts called in by the Defendant, I note. exonerated the Claimant of the fraud,

The counsel to the Defendant urges me not to give any weight to the Police Report, Exhibit C9, the same not having been certified. Not only do I find this request curious as DW1 had referred to this Report in Paragraph 13 and 14 of his Deposition, which Report, he said was in the List of Defendant's document's filed to be relied upon, Reverend Ekong admitted that the Claimant's signatures on the cheques used to defraud the Defendant were not his, but were forgeries. Thus even if I were to reject Exhibit C9, the evidence of DW3, based on his analysis of the disputed documents in Exhibits D1 and D2, have proved that the Claimant was not party to the fraud,

It is undoubtedly true that an employer is under no obligation to give reasons for terminating the employment of his employee. It is also true that it is not necessary that before a servant is dismissed he must be tried before a court of law where the accusation for gross misconduct bordering on criminality. See the case cited by the Defence of Olanrewaju v Afribank (Nig) Plc (2001) 13 NWLR Part 731 Page G91(SC).

It is also true that the Defendant was under no compulsion to try the Claimant before a court of law or indeed base its actions in dismissing the Claimant on the Police Report. Where, however, they seek to discipline him or summarily dismiss him, they are bound, I hold, to follow the procedure that they have agreed should govern the relationship between them. These procedures, they have admitted are as contained in Exhibits C11 and C10. Parof evidence to vary the applicability of these documents to the contract between the parties, as DW2, has sought to do, cannot be given, I hold. See Section 132 of the Evidence Act Cap E8 Laws of Lagos State. 2003.

The preface of Exhibit C10 states as follow:

"This document is an integral part of the Company Staff Handbook for Management and Junior Staff

In Exhibit C10, there have been procedures stipulated for addressing offences, including a number of warnings, facing of disciplinary panels before termination or dismissal can be effected. This was not shown to have been followed in this case.

The Defence counsel has argued that the Managerial Service Agreement (Exhibit D4) binding on both parties has stated in Paragraph 12 that the Claimant's employment may be determined without any notice to him in the event of any misconduct.

This paragraph states as follows;

"In case the Employee shall be guilty of dis-obedience, misconduct or neglect in the conduct of the duties assigned to him or if he shall willfully fail to observe any of his obligations herein the Company may immediately and without notice put an end to and determine this AGREEMENT.

An ordinary interpretation of this clause, which I am bound to give to it, is that the employer, in the case of misconduct can summarily dismiss ah employee. It is no authority for the proposition that in dismissing the employee, the procedures laid down in the contract of agreement between them should not be followed.

It has again been argued by the Defence counsel that the signature on the Claimant's Written Address is not known to law. Counsel to the Claimant has however argued that she signed the Written Address. She distinguished the authority cited by the Defence.

I agree with the Claimant's counsel, in her distinguishing of the case cited by the Defendant's counsel. The Claimant's Written Address even though it is stated to have prepared by "Oluwoie Akanle & Co", is signed "Olusina", who was the counsel that appeared in court on behalf of the Claimant on 28/1/2009 and on 19/2/09, the latter of which dales she adopted the Written Address filed by them. Her adoption of this Address, I hold, has intervened to validate the Written Address as hers.

The Defendant, following reports from Police and following the independent report of their hand writing analyst which reports exculpated the Claimant, appear to me to simply be seeking to indict the Claimant by all means.

Even if (he Claimant's conduct amounted to misconduct, the procedure agreed as binding between them should have been followed before he was dismissed, which was not done.

I accordingly hold the dismissal of the Claimant to be wrongful.

The Defendant has submitted in the alternative that the damages for wrongful dismissal is the amount the Claimant would have earned over the period of notice. This is indeed true, as held in the case cited by him of Chukwumah v Shell Petroleum (1993) 4 NWLR Part 289 Page 512 at 537 (SC). This, being a relationship of master and servant, not being a contract with statutory flavour, specific performance of the contract cannot be granted.

From the Claimant's letter of Employment (Exhibit C1), the period stipulated for determination of the contract by either of the parties is one month's notice or one month's salary in lieu of notice.

The Defendant has impugned the Claimant's breakdown. I shad thus use the breakdown given by the Defendant's witness (DW2) in his Statement on Oath, which sum is stated to be N4,075,146.89 per annum. The salary for one month, by my calculation is N339,595.574, which 1 award to him as salary in lieu of notice due to him.

The Defendant's counsel has asked me to strike out paragraphs 7,11,19, 25,27,31 and 44. of the Claimant's Statement on Oath as not having been supported by his readings, I find it unnecessary to deliberate on this issue as reference was not made by me to the facts deposed to therein, neither have those facts formed any of the decisions made by me.

With regard to the seizure of the Claimant's money and vehicle, the attitude of the Courts is aptly put In the case of Jacob Omman v. Darfington Ekpe (2000) 1 NWLR Part 641 Page 365 at 373 to 374 paragraph G-B.

"There Acholonu JCA (as he then was) had this to say:

"Now Nwanedo the learned counsel for the Respondent derided Exh 1 which he submitted was made in the Police form and the contents was made 4 full years before the action, under duress as it was made while the Respondent was in Police custody. It is most unfortunate that our citizens now use the Army and police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any documents signed in the presence of the police and relating to a civil claim shall be viewed with suspect particularly if the person against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract-what with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the police to whom a purely civil matter is brought to its attention to enforce or put a fear of God into the other side will certainly not be enforced as there is no consensus and is voidable. Exhibit 1 does not therefore avail the appellant", (sic)

In the present case, I hold that the Claimant's surrender of these documents was not voluntary. From the undisputed evidence of the Claimant, confirmed in paragraphs 10 to 12 of the Statement on Oath of Buki Jinadu (DW1), the Corporate Security Manager of the Defendant, the "surrender" of the sums in the fixed deposit and current account of the Claimant, together with his Peugeot 406 were made while the Claimant was in detention.

The Claimant has produced documents from Zenith Bank (Exhibits C16(1) to C16(3) giving the details of the Deposit Account in both his name and that of Kemi Odigie, presumably his wife, which account was opened since August 2001 in the sum of N1,923,893.15 to June 2002 when it rose to N2,341,922.31. This sum is clearly before the period of the fraud, which by the evidence of DW1, Buki Jinadu, was between June to November 2002.

The Claimant has also tendered his Letter of Allocation and receipts from the Lagos State Government (Exhibits C13) in respect of the allocation of land at Isheri North Residential Scheme, to Odigie Mrs. Oluwakemi Omobose, which documents, he said were seized by the Defendant in conjunction with the Police.

These documents, I have held, were taken from the Claimant under duress, in the absence of an order of court detaining these properties or giving the same over to the Defendant, the Defendant, I hold, has absolutely no right to detain these properties. These properties, including the sum in the Claimant's accounts shall be returned to him. On the question of the interest to be awarded on the fixed deposit account, though the Claimant seeks 21% per annum, the interest rate granted on the latest statement issued by Zenith Bank on the said deposit (Exhibit C16(3) is 18.5% per annum.

The Claimant, I hold, is entitled to be awarded interest, as the law is that where money is owing, and I add, withheld, and that other is driven to court, interest will be awarded from the time the amount is withheld. See National Bank v Savol West Africa (1W) 3 NWLR Part 333 Page 435. I accordingly hold that the Claimant is entitled to payment of Interest on the said deposit at the rate of 18.5% from the date the deposit was seized by the Defendant until the date of payment.

White it is not clear what date the deposit was seized by the Defendant or "surrendered" by the Claimant, it is not in dispute that it is a date prior to his letter of dismissal served on him on 14/2/2003, after he had resumed his employment. It is thus safe for me to grant interest with effect from 14th February 2003,

For all the reasons given by me above, while some of the reliefs sought are refused, the claim of the Claimant succeeds in the main. I find that the Defendant wrongfully dismissed the Claimant. Since the contract between the parties is an ordinary contract of employment with no statutory flavour, specific performance of the contract of service cannot be granted. The Claimant can also not be awarded salary or benefits for a period he did not work. The damages for the wrongful dismissal are the period of notice he would have worked for, which in this case is one month's notice, which I have said to be N339.595.57k.

I accordingly order as follows:

1. I grant 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. I grant 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. I refuse a declaration that the Defendant's letter Ref. DHR/PFN/1904/114 dated the 7th day of February 2003 dismissing the Claimant from the employment of the Defendant is null and void and of no effect.
4. I refuse an order setting aside the said letter of summary dismissal.
5. I grant a declaration that the summary dismissal of the Claimant is wrongful.
6. I refuse the 6111 and 7th reliefs seeking for a declaration of nullity of the letter of suspension and for setting aside of (he said letter.
7. I refuse the 8th relief directing the payment of the Claimant's salaries and allowances from January 2003 until the date of judgment.
8. I refuse the 9"1 prayer for an order of injunction.
9. I refuse the Alternative Prayer in No, 9 for payment of the Claimant's salary for the unexpired residue of his employment. I also refuse the prayer for his retirement with full benefits accruing at the age of 55 years. I further refuse his prayer for payment of the sum of N30 Million as retirement benefits or for damages of N200 Million for his unlawful dismissal. The Defendant shall however pay to the Claimant his full benefits due and owing to him until 14th March 2003, which is the date the termination of his employment should have taken effect from, he having received the letter of summary dismissal (Exhibit C8) by his evidence, on 14/2/03.
10.I declare 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. The Defendant is directed to refund to the Claimant the sum of N2.3 Million with interest at the rate of 18.5% from 14th February 2003 until payment.
12.I declare that the Defendant is not entitled to seize the Claimant's 406 Peugeot Car Registration No HS 578 KJA.
13. The Defendant shall return forthwith the said car, restoring it to the condition it was in before the seizure.
14. I declare 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.
15. I grant 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.