By Elvis Evbaruovbokhanre Asia
Case: Mr. Eshiet Etim Ekpenyong V. Cross River Basin Dev. Authority[1]
Judge: Hon. Justice Sanusi Kado
Date: 17/7/2024
Main issues of law
- Employer’s right to suspend an employee
- Employee’s entitlement to promotion
- Rights of employee in official quarters
- Treatment of the same sets of facts in criminal and civil proceedings
- Employees’ duty of diligence and good faith
Summary of facts
The Claimant was a Cashier responsible for receiving money on behalf of the Defendant, recording it, and depositing it into a designated bank account. Audit reports alleged that certain amounts of money were missing, leading to the Claimant being queried. Unsatisfied with the responses provided, the Defendant suspended the Claimant and reported the matter to the police for a discreet investigation. Although the Claimant was discharged and acquitted by the Chief Magistrate Court, the Defendant refused to reinstate him or pay his salaries and entitlements. As a result, the Claimant initiated legal action seeking, among other things, salaries, entitlements, and promotion that his colleagues received, as well as other declaratory reliefs and injunction restraining the Defendant from ejecting him from his official quarters. The Defendant justified the suspension and report to the police and counterclaimed for the missing money.
Court’s Decision
The court held that the report to the police was justified, but the Defendant had no justification for refusing to reinstate the Claimant or pay his salaries and entitlements after he was discharged. The court further held that the Claimant was not entitled to the promotion claimed, as there was no proof it was earned, and denied his claim for an injunction relating to his official quarters. On the counterclaim, the court found that the Claimant was negligent in handling the money and held that the Defendant was entitled to recover the missing amount, despite the Claimant’s discharge and acquittal in the criminal proceedings.
Legal principles relied on
a) Employer’s right to suspend an employee
An employer has the right to suspend an employee, regardless of whether this is provided for in the conditions of service. When there is an allegation of serious misconduct, particularly involving the commission of a crime or abuse of office, the appointing authority has the power to suspend an employee of any status to allow for a discreet investigation. It should be noted that suspension should not be based merely on suspicion or the mere receipt of a complaint without more.
b) Employee’s entitlement to promotion
Promotion is a privilege that is not granted merely for the asking, as it is not automatic. For a Claimant to succeed in a promotion claim, they must demonstrate that they have fulfilled all the conditions precedent to promotion. The law is clear that promotion from one level or position in an organization to another is a privilege that must be earned, not a right. An employer cannot be compelled to promote an employee, regardless of the employee’s good opinion of themselves
c) Rights of employee in official quarters
The law is well-established that an employee occupying official quarters has no right to continue occupying the premises of their employer once their service ends. This means that once the employment relationship is terminated, the employee must vacate the official quarters they occupied as a result of their employment.
d) Treatment of the same sets of facts in criminal and civil proceedings
The claim for the recovery of the sum of N8,446,148.38 is a civil matter, separate from the criminal charge against the Claimant for misappropriation or stealing. In law, certain facts can constitute both criminal and civil wrongs. In such situations, the mere fact that a criminal charge has been filed and the accused discharged does not bar the institution of civil action based on facts that also constitute criminality. In fact, a criminal action and civil prosecution can proceed concurrently or one after the other. The recovery of unaccounted funds is not the same as the misappropriation/stealing tried in the charge before the Chief Magistrate Court. There is no law barring an employer from taking disciplinary action against an employee even while a charge is pending against them
e) Employees’ duty of diligence and good faith
An employee owes a duty to their employer to protect its property or use it in such a way that no preventable loss occurs. If an employee is tardy, lacks diligence in their duties, or is negligent, resulting in loss to the employer, the employee is liable for whatever loss they caused. In employment jurisprudence, the doctrine of good faith in the master-servant or employer-employee relationship is not based on dishonesty but on absolute loyalty. It connotes that in the course of rendering services; the employee must apply utmost diligence and manifest work ethics that would put them in good stead with their employer. Therefore, a master or employer is entitled to dismiss an employee whose conduct is incompatible with the faithful discharge of their duties.
Commentary
This judgment is a textbook case on the relationship between criminal and civil proceedings in the discipline of employees, and the employees’ duty of good faith and diligence. It is instructive to note that, although the Claimant was discharged and acquitted in the criminal action instituted for the missing money, the court nevertheless found him liable to refund the money based on evidence showing that he could not give a satisfactory account of his handling of the funds. The reason for this is clear—the legal obligation placed on the state in prosecuting offenses is different from the standard expected in a civil case, and the two proceedings are largely unrelated and can run concurrently or one after the other[2].
The decision is unimpeachable on the facts and law considered. However, a small point could be made regarding the court’s treatment of the Claimant’s entitlement to promotion. While there is no doubt that promotion must be earned, if the Claimant was prevented from earning it due to the Defendant’s failure to reinstate him after the criminal proceedings or for any other reason, there should be room for equity to come to the aid of employees in appropriate cases. To assert that an employee must earn promotion where they were prevented from doing so would be asking the impossible. However, it is conceded that the court’s conclusion that the Claimant was negligent in handling the Defendant’s money may have justifiably influenced its decision in this case.
Footnotes
[1] SUIT NO: NICN/CA/01/2019. Available online at https://nicnadr.gov.ng/judgement/judgement.php?id=9185
[2] See FRN v. LALWANI (2013) LPELR-20376(CA) and OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205