Mr Ayodele A. Opaleye v Nigeria National Petroleum Corporation
| Judge | Hon. Justice B. B. Kanyip, Phd |
| Judgment Date | 28 July 2021 |
| Respondent | Nigeria National Petroleum Corporation |
| Appellant | Mr Ayodele A. Opaleye |
| Docket Number | NICN/ABJ/240/2018 |
| Counsel | C. Ogalagu, for the claimant. Miss Chioma Nwankwo, for the defendant. |
| Court | National Industrial Court (Nigeria) |
1. The claimant took out this action vide a complaint filed on 19 September 2018. The complaint is accompanied by the statement of facts, list of witnesses, list of documents and copies of the documents. By his statement of facts, the claimant is asking from the Court, against the defendant, the following reliefs:
(1) A declaration that the dismissal of the claimant by the defendant in utter disregard of the recommendation of the Investigative Panel was done in bad fate (sic), malicious and against the clear provisions of extant laws.
(2) A declaration that the selective recommendation by the defendant to the President of the Federal Republic of Nigeria the dismissal of the claimant whilst absolving several other members of the defendant’s staff in the loading operation in question was done in bad fate (sic), maliciously, capriciously and against the law.
(3) An order setting aside the dismissal of the claimant by the defendant having been done maliciously and in bad fate (sic).
(4) An order compelling the defendant to re-instate or properly retire the claimant.
(5) An order compelling the defendant to pay to the claimant all his accrued salaries, remuneration, allowances, benefits, gratuities, pension all such other entitlement accruable to the claimant by virtue of his office or employment from the date of the malicious dismissal, being the 25th day of October, 2005 till date.
(6) 10% post judgment interest monthly from the date of delivery of this judgment till the judgment sum is liquidated.
(7) The cost of filing this suit.
2. The defendant entered formal appearance and then filed its defence processes: the statement of defence, list of documents, copies of the documents, list of witnesses and witness statement under oath.
3. To the defence processes, the claimant filed his reply to the defendant’s statement of defence and a written statement on oath in support of the reply to the statement of defence.
4. At the trial, the claimant testified on his own behalf as CW and tendered the following exhibits: Letter of Appointment (Exhibit C1), Letter of Transfer (Exhibit C2), 2 Letters of Promotion (Exhibits C3 and C3a), Letter of Dismissal (Exhibit C4), Notice of investigation hearing of the House of Representative’s Committee on Public Petition (Exhibit C5), Pre-action notice (Exhibit C6) and letter from the Ministry of Communication (Exhibit C7). For the defendant, Tunde Abidoye, the Supervisor Consequence Management, formerly the Policy and Compliance Officer, testified as DW and tendered Exhibits D1, D2 and D3.
5. At the close of trial, the defendant filed on 4 March 2021 its final written address; and on 15 June 2021, its reply on points of law. The claimant on his part filed his final written address on 22 March 2021. All these processes were respectively adopted by the parties on 6 July 2021.
6. To the claimant, he was employed as a member of staff of the defendant on 1 June 1987. He rose through the ranks and after working with the defendant for several years, was promoted to the position of a Superintendent of Oil Movement (Operations) Department of Pipeline and Product Marketing Company (PPMC) of the defendant. That the duty of his Department includes raising of meter tickets based on nominated figures for loading of approved petroleum products including AGO on cargoes. The nomination ticket raised by the claimant’s Department is then transmitted to the Jetty Operation Department of the defendant who have the sole responsibility of communication of Cargo Order/notice to the cargoes’ vessel captains/masters for onward loading.
7. His case is that on 3 August 2005, the defendant nominated a cargo vessel (MT TUTUMA) to load 4000 metric tons of AGO product from Warri Refinery and Petrochemical Company (WRPC) Jetty. Upon receipt of the said nominated figure, which was transmitted to the claimant’s Department from the Supply and Distribution Department of the defendant in Lagos, the claimant’s Department in tandem with their responsibility (through the claimant’s subordinate, Mr F. I. Olofu) raised a meter ticket covering the said 4000 metric tons of AGO product as nominated by the defendant for subsequent issuance of the Cargo Order by WRPC Jetty Operators. Upon completion of the loading, the “PPQC/WRPC” in the course of preparing the shipping documents discovered conflicting figure of 4000 metric tons (the nominated figure) from the Jetty as opposed to the 5000 metric tons programmed. Upon this discovery of the conflicting figures, the WRPC commenced back pumping of the excess product. However, the back pumping was stopped by the office of the GMD who instructed that there should be no back pumping since the marketer (OBAT OIL) had paid for 6000 metric tons since January 2005.
8. Following the discovery of the said conflicting figures (the nominated figure and the figure programmed to the loaded) on MT Tutuma, the defendant set up a 6-man investigative panel, which after its enquiries recommended several disciplinary measures to be meted out to the claimant and 11 other members of staff of the defendant. The 6-member panel, despite the overwhelming evidence that the claimant’s Department performed its own responsibility by raising the appropriate meter ticket covering the nominated figure of 4000 metric tons, relied on a vague purported minute of meeting to hold that in view of the fact that the claimant attended meetings wherein the conflicting figures appeared, the claimant was complicit in the alleged top-up of petroleum products.
9. To the claimant, notwithstanding the criminal nature of the allegation against him (bothering on fraud), the said panel without recourse to the police for investigation, charge of the claimant to court and subsequent pronouncement of guilt, recommended the compulsory retirement of the claimant from the service of the defendant. That the defendant on its own part, totally went outside the recommendation of the investigative panel and obtained the approval of the President of the Federal Republic of Nigeria to dismiss him from the employment of the defendant. That he protested the unlawful dismissal through different fora without success and eventually filed this suit before this Court.
10. To the defendant, the claimant was properly dismissed in line with the law. That the claimant, as a superintendent or departmental head, attended series of meetings wherein they unlawfully altered loading figure of 5000 MT of AGO instead of the approved/nominated figure of 4000 MT featured prominently and the claimant negligently and/or acquiesced to the unlawful figure alteration conspiracy by not raising the issue and/or speaking against the alteration since he and the department that he headed prepared the ticket for loading and had the approved document. The defendant accordingly posits that the 5000 MT of AGO nominated for the vessel MT Tutuma was introduced surreptitiously by the claimant and his colleagues of the Oil Movement Department of the PPMC Warri refinery. It is thus the case of the defendant that the Oil Movement unit of the PPMC Warri refinery of which the claimant was the superintendent failed to confirm the nominated quantity of 4000 MT to their shore counterpart before the loading of the vessel MT Tutuma. Rather, the claimant and his team misled their shore counterpart into the loading of 5,000 MT of AGO on the vessel MT Tutuma. That the claimant and his colleagues never at any of the coordination meeting held raise the issue of the illegal loading of the vessel MT Tutuma with other teams at the coordination meeting of the PPMC. The illegal loading of the 5,000 MT of the vessel MT Tutuma was found out by the surveillance team of the defendant. The defendant went on that it did not act maliciously or in bad faith in dismissing the claimant as his dismissal would serve as a deterrent to other staff of the defendant who were in the habit of unlawfully altering and inflating approved figures of petroleum products for loading in the designated vessels thereby shortchanging the Federal Government of Nigeria and its citizens.
12. The defendant submitted two issues for determination, namely:
(1) Whether the defendant is bound by the disciplinary measures recommended against the claimant and the other staff by the investigative panel as to make the dismissal of the claimant illegal if not adhered to strictly.
(2) Whether the claimant has proved his case on the preponderance of evidence before the Court as to entitle him to the declaratory and other reliefs sought.
13. On issue (1), the defendant submitted that the investigation panel it raised acted as its agent for the purpose of the said investigation. That being its agent, the defendant is allowed by law to go beyond the powers given to the panel to investigate and make necessary recommendations, citing Mr Ibrahim Jubril v. Military Administrator, Kwara State [2006] 3 NWLR (Pt. 1021) 357 and Nigerian Gas Company Ltd v. Mr G. O. Dudusola [2005] 18 NWLR (Pt. 957) — the page was not given.
14. The defendant submitted further that the Public Service Rules (2009) allow the employer being the defendant in this case to use the findings and recommendations of the panel to reach a decision for the interest of the defendant. That this position the panel also acknowledged in its conclusion thus: “In view of the foregoing panel’s findings and recommendations thereto, NNPC management is hereby requested to kindly consider and approve the recommendations for implementation”. That from this it is clear that the panel acknowledged that it’s recommendations are subject to the final approval of the defendant and not sacrosanct as being canvassed by the claimant. That the Public Service Rules (PSR) of 2009 particularly Rule 030401, defined “serious misconduct” as a specific act of very serious wrongdoing and improper behavior which is inimical to the image of the service and which can be...
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