In Nigeria, many employers take disciplinary actions against their employees even before investigations on alleged offence is conducted or concluded.
Some employers go as far as, stopping the salaries, pensions and entitlements of the employees even before the matter is determined by a court of law.
This case serves as a pointer to employers that merely filing a criminal charge in court against your employee for an alleged offence does not constitute dismissal from the employment nor does it amount to disciplinary action against them.
To employees, the appropriate court with exclusive jurisdiction to determine a matter relating to an employment dispute is the National Industrial Court.
The National Industrial Court of Nigeria established under section 1999 of the Constitution (as amended) has the exclusive jurisdiction on matters that relate to labour and employment in Nigeria.
In a recent case between Mr Ebenezer Olufemi Ojo and the Economic and Financial Crimes Commission, (EFCC) the National Industrial Court held that it was wrong for the Defendant to stop paying salaries to the Claimant on the basis of the charges filed against the Claimant.
Facts of the case
- Mr Ebenezer Olufemi Ojo, the Claimant told the court that he was employed by the Defendant (EFCC) as a Cadet Officer on Grade Level 8 on May 1, 2006.
- He said he attended various courses and training at the instance of the defendants while he was employed. However, in November 2018, his employer (EFCC) alleged that it wrote a letter to the University of Ilorin, where he graduated from in order to confirm the authenticity of the statement of result he presented for his employment.
- According to Mr Ojo, EFCC alleged that it got a response from the said university stating that the claimant graduated with a 3rd class degree and not the 2nd class (lower) degree which he presented.
- Mr Ojo said he explained to EFCC that the result he presented was what was given to him by the University. Upon hearing this, EFCC asked him to write a statement under words of caution of which he insisted in the statement that the result was given to him by the University.
- He alleged that on November 7, 2008, he was detained in a cell for 7 days. Afterward, he resumed his duty until in 2011 when the EFCC asked him to make further statements regarding the same issue of which he still maintained that the result he presented was what he was issued by the university.
- Mr Ojo alleged that EFCC again detained him in cell for another 17 days From March 1, 2011.
- Thereafter, he was charged to court.
- On March 28, 2011, he was arraigned before the FCT High Court in Abuja in suit number CR/47/2011. However, The court in its judgement of November 25, 2016, discharged and acquitted him of the charges proffered against him by the EFCC.
- He said afterward, his lawyer wrote a letter to EFCC on the outcome of the matter which the EFCC ignored. He told the court that he then took a copy of the judgment to the EFCC.
- He alleged that the Head, Human Resources of EFCC told him that unless the University of Ilorin informs EFCC that it made a mistake in the issuance of the statement of result to him, they cannot do anything for him.
- He said EFCC stopped paying him his salary since February 2011, and neither did they remit his pension contribution to his administrator.
- Mr Ojo said in July 2016, he wrote a promotion examination, but EFCC refused to release the result of the examination.
- He, therefore, instituted a suit against EFCC at the National Industrial Court Abuja seeking the following reliefs.
Reliefs sought by the Claimant
- A Declaration that the Claimant is still under the employment of the Defendant.
- A Declaration that the detention of the Claimant in a cell by the Defendant for 7 days in 2008 and 2011 respectively is unlawful.
- A Declaration that the prosecution of the Claimant by the Defendant is malicious.
- A Declaration that the stopping of monthly contribution to the Claimant’s Pension Administration by the Defendant is unlawful.
- An Order directing the Defendant to pay the Claimant’s salary from 1st March, 2011 till date at the rate of N123,000.00 per month (or at the rate that the Claimant’s mates are being paid) with interest at the rate of 2% per month from March 2011 until total liquidation.
- An Order directing the Defendant to remit to the Claimant’s Pension Managers (Sigma Pensions), the monthly contributions from August 2016 until the Claimant’s employment is lawfully determined or till he retires.
- An Order directing the Defendant to release the result of the promotion examination that the Claimant took.
- An Order directing the Defendant to allow the Claimant to continue with his work at the same grade level that his mates that were employed with him at the same time are now.
- An Order directing the Defendant to pay damages for the detention of the Claimant in cell for 24 days and for malicious prosecution of the Claimant and general damages in the sum of N100,000,000.00.
The Defendant (EFCC’s) case
In response, the EFCC told the court that on November 11, 2008, it wrote a letter to the University of Ilorin requesting a transcript from the date of entry to graduation of the Claimant (Mr Ojo) because it was conducting a vetting exercise of staff to determine their suitability for retention in service,
- EFCC alleged that the University sent a response on November 27, 2008, stating that the University did not issue the statement of result presented by the Claimant to EFCC and in response, explained that Mr Ojo graduated in 2003 and was awarded a BSC degree with third-class honours.
- According to EFCC, it carried out investigations of which Mr Ojo was invited to say his own side of the story. On November 24, 2008. Mr Ojo made extra-judicial statement but was not detained.
- Subsequently, EFCC looked into the authenticity of the statement of result and invited the person whose signature was on the statement of result.
- The person came and stated that the signature on the statement of result was not hers. she presented samples of her signature for forensic examination and the forensic report showed that her signature was different from the one on the statement of result.
- In February 2011, EFCC wrote another letter to the University of Ilorin which it responded saying the said statement of result was fake.
- According to EFCC, the university sent Mr Ojo’s transcript from his year of entry to graduation and the order of proceedings to the 22 convocation ceremonies of the University which revealed the Claimant graduated with a Third-Class Honours and not the second class he present during employment.
- While concluding its investigations based on all the evidence gathered, they charged the claimant to court.
- EFCC contended that though Mr Ojo was discharged and acquitted and their failure to prove beyond reasonable doubt that the statement of result was forged does not make the statement of result presented by the claimant authentic.
- EFCC averred that the University of Ilorin still maintained that the statement of result presented by the Claimant for employment did not emanate from them.
- The Commission, therefore, asked the court to determine “Whether the Claimant has made out a case for his malicious prosecution and stopping of his salary.”
What the judge ruled
After listening to arguments and submissions from the Claimant and the Defendant, Justice O. Y. Anuwe of the National Industrial Court ruled as follows.
Ruling on relief 2, 3 and 9 sought by the claimant which relates to the unlawful imprisonment and malicious prosecution of the claimant, the court held that it does not have jurisdiction to entertain those claims. Consequently, the claims were struck out.
- The judge held that, “These claims of the Claimant are purely claims for unlawful imprisonment and malicious prosecution under the common law of torts. The matters for which this court is permitted to exercise jurisdiction in Section 254C (1) of the 1999 Constitution (as amended) does not extend to actions for unlawful imprisonment and malicious prosecution. Clearly, this court does not have jurisdiction to entertain these claims. The claims are struck out.
- “In relief 7, the Claimant sought an order directing the Defendant to release the result of the promotion examination he took. In paragraph 21 of his statement of facts and in his evidence, the Claimant stated that he wrote a promotion examination, but the Defendant refused to release the result of the examination. The Defendant denied this allegation of the Claimant in paragraph 23 of the statement of defence. The Claimant did not supply the particulars of the alleged promotion examination and he did not provide evidence to show that he wrote any promotion examination. I did not find any evidence to support the Claimant’s claim that he wrote any promotion examination. This claim fails.”
- “In the final result of this suit, I find that the Claimant has proved his claims in reliefs 1, 4, 5, 6 and 8. These claims are granted. Relief 7 is dismissed while reliefs 2, 3 and 9 are struck out for the reasons I have given in this judgment. Cost of N200,000.00 is also awarded in favour of the Claimant.”
- The court granted reliefs 1,4,5,6 and 8 which means;
- The court declared that Mr Ojo is still under the employment of EFCC, the court also declared that stopping of his monthly contribution to his Pension Administration is unlawful.
- The court ordered EFCC to pay Mr Ojo his salary from March 1, 2011, till the date at the rate of N123,000.00 per month or the rate that the Claimant’s mates are being paid with a 2% interest rate per month from March 2011 until total liquidation.
- The court also ordered EFCC to remit Mr Ojo’s pension managers his monthly contribution from August 2016 until he retires.
- The court finally ordered EFCC to allow Mr Ojo to continue work at the same grade level as his mates who were employed at the same time as him.
In my view, the sole issue to be determined in this judgment is whether the Claimant has proved his case to entitle him to the reliefs he sought in the case.
Basis for judgement
On the issue of whether Mr Ojo was still under the employment of EFCC, the judge held that
“From all the facts before me, there is nothing indicating that the Claimant’s employment has been terminated or he has been dismissed. This finding is strengthened by the evidence of DW1 under cross-examination by the Claimant’s counsel when he said he has nothing to show the Claimant was queried or dismissed. In the absence of evidence of the Claimant’s dismissal or termination of his employment, it implies that he is still in the employment. I hold therefore that the Claimant has proved that he has remained in the Defendant’s employment till date.”
On stopping the payment of Mr Ojo’s salary in February 2011, the judge said that “It is clear from the facts that the Defendant stopped paying salaries to the Claimant from the moment the charges were filed against the Claimant. Perhaps, the Defendant meant the filing of the charge to be a dismissal. That could explain why it stopped the Claimant’s salaries
“Let me point it out that merely filing a criminal charge in court against the Claimant for the alleged offence does not constitute dismissal from the employment nor does it amount to disciplinary action against the Claimant.
“The offences alleged in the charge were mere allegations against the Claimant. Until convicted, the Claimant cannot be said to be guilty of the allegations. Having filed the charges against the Claimant in court, it is only after the Claimant was convicted on the charges that the Defendant can validly take disciplinary action against the Claimant. Therefore, it was wrong for the Defendant to stop paying salaries to the Claimant on the basis of the charges filed against the Claimant. It was also wrong for the Defendant to stop paying salaries to the Claimant when no disciplinary steps had been taken to determine his employment,” the judge added.
Speaking on the judgement of the FCT high court. The judge said, “By the acquittal of the Claimant, the allegation that the Claimant forged the statement of result with which he was offered employment, being the reason the Defendant prosecuted him and stopped his salaries, has been resolved.
The Defendant has no justification after the judgment was handed down, to continue to persecute the Claimant in his employment because of the same unproven allegation. The Defendant ought to have immediately recalled the Claimant and paid his salary after the judgment. Rather, the Defendant refused and ignored the letter from the Claimant’s solicitor requesting the Claimant’s recall and payment of his salaries.”
On the reliefs granted, the judge said “The Claimant has given evidence to support the grant of these reliefs. In addition, having found in this judgment that the Claimant is still an employee of the Defendant till date, nothing stops him from getting all he was denied in the employment by the Defendant since the date of his arraignment in court up to date. Accordingly, the Claimant is entitled to all the entitlements which he ought to enjoy in the employment, this is inclusive of salaries, pension contributions and promotions, from 2011 to date.( 2018).”
What you should know
- Some laws governing employment-related matters in Nigeria include the Nigerian Labour Act, the Pensions Act, the Industrial Training Act, Employee Compensation Act and the Trade Unions Act.
- The Court of Appeal is the court of final arbiter in respect of labour and employment matters in Nigeria. This means that When it comes to labour matters, the appellate court is the final court to entertain an appeal regarding it.
- However, where among other things that is being contested, there is an issue of a fundamental right, then it can be further appealed at the supreme court.
- In summary, a party cannot appeal further, except where his appeal has to do with fundamental right or interpretation.
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