IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 3RD OCTOBER, 2018 SUIT NO: NICN/BEN/02/2016
BETWEEN
RASHEED OZIEGBE ABIEBHODE ……………………………..CLAIMANT
AND
ECO BANK NIGERIA LIMTED……………………………….. DEFENDANT
Representation:
Enadoro Aghomon for the Claimant
Abayomi Idowu for the Defendant
JUDGMENT
The Claimant by an Amended Statement of Fact filed on the 9th November, 2016 Claims against the Defendant as follows:
a. A Declaration that there is no reasonable or probable ground upon which the Claimant could have been validly found to have committed any fraudulent act in breach of the Defendant’s Credit Policy as set out in the letter of Dismissal dated 24thFebruary, 2015.
b. An Order Setting aside the letter of Dismissal dated 24th February, 2015 issued by the Defendant to the Claimant.
c. An Order restoring the Claimant to his office or position as the Manager in the Defendant Company and directing the defendant to pay the Claimant all his entitlements, allowances and sundry financial entitlements from the 24th February 2015 to the date of judgment in this matter
d. The sum of N200, 000,000(Two Million Naira Only) being the cost of this action.
ALTERNATIVELY
The sum of N268,899.793.88 ( Two Hundred and Sixty Eight Million, Three Hundred and Ninety Nine Thousand, Sven Hundred and Ninety Three Naira, Eighty Eight Kobo) being total emoluments payable to the Claimant for the residue of the period he would have contractually remained in the Defendants employment till when he would have attained 60years retirements age.
The case of the Claimant is that he was employed by the Defendant Bank in 2007, and rose to the grade of Manager. That he was the Branch Manager of Uselu Benin Branch of the Defendant as at 24th February, 2015 when his employment was purportedly dismissed by the Defendant. That prior to his dismissal, he had earlier been directed to proceed on what was termed “Recovery Suspension with Half Pay”. He stated that after his suspension, he received a letter of “Merit Pay Increase from the Defendant for his satisfactory performance in 2013 the year within which the alleged fraudulent loans were granted. He stated that it was revealed in the letter of suspension and dismissal that the actions taken against him were because he allegedly authorized fraudulent employee credit loans for staff of Edo State Sport Council. He was thereafter issued a query on the14th and 28th October, 2014 respectively and that he responded to the queries stating clearly that he followed the conditions stipulated in the Defendant’s credit Policy and Guidelines which was confirmed by the Accounts officer one Mr. Doyin Abiodun. According to him, upon investigation, it was revealed that the loan documentation were handiwork of some other co-staff. Also, he was invited to the Disciplinary Committee of the defendant, where an allegation of “threat to life reported by one John Ebosele was leveled against him. That in spite of the facts that the perpetrators of the act confessed to the Police and were indicted, he was exonerated, but was still issued a letter of dismissal. He contended that he was not guilty of any misdeed or in breach of any regulation or procedure of the defendant to warrant any disciplinary action. Furthermore, it is the contention of the Claimant that he was not given fair hearing in respect to the issue for which he was dismissed from the service of the Defendant and that he was forty-two (42) years as at the time of the purported dismissal and would have retired at the age of Sixty (60) years in line with the Ecobank Group Policy on employee retirement. Also that he would have been entitled to an increment of N2, 000,000 every two years until his retirement under the regulations of the Defendant.
The Defendant on the other hand admitted that the Claimant was indeed the manager of the Uselu Branch of the bank before his exit that the allegation that he was disengaged without any reasonable cause is false as he was dismissed because he negligently authorized employee credit loans for purported staff of the Edo State Sports Council who turned out fraudulent. It averred further that the Claimant failed and refused to carry out his responsibility to confirming if the purported staff of the Edo staff Sports Council who applied for salary advance loans were actually staff of the organization before granting the loan to them. That the Claimant was placed on Recovery Suspension with half pay and was subsequently dismissed after he appeared before the Bank’s Disciplinary Committee to explain his level of culpability in the allegation levied against him as it was established that he authorized credit loans for purported staff of Edo State Sports Council which turned out to be fraudulent. It averred further that it issued queries to the claimant to which he responded vide a letter dated 15th October, 2014, the Claimant conceded to have neglected and failed to carry out his responsibility of confirming the authenticity of the employment of the applicants from the Edo State Sport Council, who applied for the salary advance loans from the defendant and conduct due diligence investigation as required of him under the terms and conditions stipulate in the defendant’s policy and guidelines of loan administration. Also that he has been incompetent in his duty as the Branch Manager of Uselu Branch of the Defendant and failed to meet the Bank’s standard in his work by conducting due diligence in respect of loan administration. That the failure to perform his duties and due diligence caused a huge loss of money and decrease in gross profit of the company.
During trial, the Claimant testified for himself as CW1, he adopted his sworn depositions on oath dated 25th February, 2016, 2nd June 2016 and 19th October 2016 as his evidence in the case, he also tendered some documents which were admitted in evidence and marked Exhibit RO-RO12. The Defendant also testified through One Mr. Francis Dehinbo, One of the employees in the Human Resources Unit as DW1, he adopted his sworn deposition on oath dated 16th May 2016 as his evidence in the case and tendered some documents which were admitted by the Court as Exhibit DF-DF2.
Parties caused their written addresses to be filed in compliance with the rules of this Court; the Defendant filed its final written address on the 30th of May 2018 and canvassed two issues for the determination of the Court viz:
1. Whether the Claimant’s evidence before the Court establishes any liability or breach of contract on the part of the Defendant to warrant the granting of the reliefs sought against the Defendant.
2. Whether by the Claimant’s pleadings/Claims and evidence, the Court has power to declare that it is liable to pay the sums claimed either as special or general damages and/or the sum capitalized as the alternative reliefs.
Learned defence counsel in arguing issue one submitted that the Claimant’s claim is mainly predicated on a claim for unlawful termination of his employment, and that the terms of contract of employment/letter of employment which is the bedrock on which his claim can be based was not tendered by him. Counsel submitted further that there is no documentary evidence before the Court to ascertain that the defendant was in breach of its condition of service with the Claimant. Reliance was placed on the following cases. Osumah v. Edo Broadcasting Services &Anor [2004] 17 NWLR part 902, page 322 at 351, para B-E. Olarewaju v. Afri Bank NigPlc [2001] 13 NWLR part 731 p 691-712, State v. Aibangbee [1988] 3 NWLR (Pt.84) 548 pp.577, paras B-C. He noted further that the Court is not entitled to consider such extrinsic facts which are not placed before the Court. He submitted further that it is an elementary principle of law governing private employment contracts that an employer is not under any form of obligation to give a query nor reason for termination of employment that the question in a pure case of master and servant does not depend on whether the master has heard the servant in his own defence, it depends on whether the facts emerging at the trial prove breach of contract. He argued further that the Claimant under cross-examination stated that his signature do not communicate his approval of the loan, and tendered Exhibit RO5 which is the defendant’s employee credit application form duly signed by the Claimant and Exhibit RO4 was equally tendered by the Claimant where he admitted he acted negligently. It is the argument of learned counsel that from Exhibit RO5, it is suggestible that the Claimant acted and held himself out that he has confirmed the information in the document submitted as genuine and in conformity with the policy that spells the conditions of the transaction. Counsel submitted that the position of the law is that a document duly signed by a person indicates the approval of such signatory and/or confirmation of intention thus the fact of his agreement is proved by his signature and in the absence of fraud or misrepresentation, whatever the document says and undertakes is binding on him, he cited Mobil Oil Nigeria Limited v. National Oil & Chemical Marketing Company Ltd (2000) 9 NWLR (Pt. 671) 44 @ 52 and Egbase v. Ohiareghan [1985] 2 NWLR 884, 899. Counsel submitted further that where written contract of employment is executed, such benefits and emoluments as may be payable to an employee shall be set out in the contract of employment which is not placed before the Court as such there is no valid claim before the Court as it cannot rewrite such a contract for parties, he cited Ladipo V. Chervon (Nig) Ltc [2005] 1 NWLR (part 907), P.277 at 289, par.H, Olarewaju v. AfriBank (Nig) Plc [2001] 13 NWLR (part 731)p.691 at 712, para C 714,
It is the submission of learned counsel on issue two that the law is trite that the burden of proving a particular fact is on the party who asserts it however, does not remain static in civil cases as it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced and if he fails to prove the assertion the proper order which the Court should make is one dismissing his claim. He stated further that from the totality of the pleadings and evidence, the Claimant has indeed failed to discharge the burden of proof placed on him and not entitled to the reliefs sought and claim should be dismissed in all its entirety, he cited Ademola v. Seven –Up Bottling Co. Plc [2004] 8 NWLR (Part 874), page 134, pp.147-148.
As to the claimant’s claim for an Order restoring him to his office or position as Manager in the defendant’s company and directing the defendant to pay to him all his entitlements, allowances and sundry financial entitlements from the 24th February, 2015 to the date of judgment in this matter and the claim for the sum of N268,399,793.88 (Two Hundred and Sixty Eight Million, Three Hundred and Ninety Nine Thousand, Seven Hundred and Ninety Three Naira, Eighty Eight Kobo) being total emoluments payable to him for the residue of the period he would have contractually remained in the defendant’s employment till when he would attained 60 years retirement age, Counsel argued that it is trite law that termination of contract of service, even if unlawful, brings to an end the relationship of master and servant/employer and employee and even though a servant/employee is willing and able, he cannot be imposed on an unwilling master/employer, thus, the Court will not make an order to reinstate an employee whose employment was terminated by his employer, credence was placed on the following cases Dudusola v. N.G. Co. Ltd [2013] 10 NWLR (Pt. 1363) 423 @ 436, paras D-E and Banke v. Akure North Local Government [2015] 6 NWLR (Pt. 1455) 400 @ 421 paras C-E. He submitted further that the instant case is that of master-servant relationship and that the contract of service between parties does not have any statutory flavour, it follows then that this Court cannot make an order to reinstate the claimant as this would amount to imposing a servant on an unwilling employer and more importantly, it will be ultra vires for the Court to make pronouncement in line with reliefs C-D and the alternative relief in the statement of claim and also, as such would imply a limitation on the powers of an employer to terminate his contract with an employee as it is the law that a person who has the power to hire also has the power to fire.
Counsel also submitted with respect to claimant’s claim for the cost of this action, that the Claimant in proving his case did not tender any invoice or receipt in respect of same, that it is trite law that the Court cannot act on speculation he cited TUAH v. Michael (2001) 10 NWLR (Pt. 1203) pg. 519 @ 543 para D and submitted that the grant of this claim will allow the claimant pass his financial responsibility to the defendant, which is improper and not part of the cause of action which the claimant complains. Reliance was placed on Guinness Nig. Plc v. Emmanuel Nwoke (2000) 15 NWLR (Pt. 689) 135 @ pg. 150, paras A-E. He concluded and submitted that the Claimant is not entitled to the reliefs sough as the entirety of the suit is frivolous ad gold-digging, thus urged to dismiss same with substantial cost and award damages against the claimant in favour of the defendant with respect to its counter-claim.
The Claimant on the other hand filed his final written address on the 19th of June 2018 and submitted a sole issue for the Court’s determination:
Whether the Claimant has proved his case to be entitled to the reliefs sought?
On the sole issue, the Claimant submitted that in respect of loans granted to Edo State Sports Council Staff, he observed that the necessary conditions were fulfilled and confirmed on the loan documents by the Accounts Officer, Mr. Doyin Abiodun before appending his signature and that a close examination of “Exhibit R05” (Employee Credit Application and Approval)reveals that:
(a) the photographs of the Applicants were duly pasted on the forms;
(b) the names and other particulars of the applicants were filled in the appropriate places and confirmed by the Accounts officer/loan initiator, Mr. Doyin Abiodun;
(c) on the bottom part of the form, the Accounts officer attested to the fact that the Applicant signed the form in his presence.
That based on the above observation, he signed his column as the Branch Manager (as stated in the defendant’s check list) which is not even the final Approval or Grant of the loan and that the evidence given by him in his Further Witness Deposition as to the various stages/levels of loan approval before disbursement at Head Office level (paragraphs 1 – 5) of Claimant’s Further Written Deposition was not denied or contradicted by the defendant and also maintained that as at the time of his signing the loan documents, there was no evidence that they were forged and he was not among those who were later found to have perpetrated the fraud. Counsel further submitted that the three members of staff (Mr. Doyin Abiodun, John Ebosele and Clement Atseghamen) who were discovered to have perpetrated the alleged fraud were indicted through a Police Investigation Report which is “Exhibit R08″ and that the claimant was never indicted by the Police in their investigation.
On the invitation by the Disciplinary Committee set up by the defendant, the claimant gave evidence to the effect that he was invited based on an allegation of threat to life by one of the perpetrators of the fraud, Mr. John Ebosele and not on the purported fraudulent loans per se. He tendered “Exhibit R013” through the subpoenaed witness to that effect but at the Disciplinary Committee Investigation, when the panel discovered that the alleged threat to life was a ruse, they ambushed him by veering into the issue of alleged fraudulent loans and that in spite of the cogent and convincing explanations by him, the panel members recommended him for dismissal. Counsel argued further that it can be deduced from the contents of “Exhibit RO6 & RO7” that the defendant’s officials were not happy with him for reporting the issue of the fraudulent loans to the Police especially as it concerns John Ebosele as “Exhibit RO6” (3 letters) shows that he was wrongly queried by the defendant’s Human Resources Officials for not visiting the said John Ebosele in hospital and later apologized for the wrong allegation. He went on to submit that from all indications, the said John Ebosele plotted, instigated or orchestrated the events that led to the claimant’s unwarranted dismissal. In order to prove the monetary claims, the claimant also tendered “Exhibits R011 and R012 to prove his age and the expected period of his retirement from the services of the defendant before his career was callously cut short by it.
Furthermore, the contention of the claimant’s counsel that his claim is for unlawful Dismissal as clearly shown in his pleadings contrary to the defendant’s submission where it erroneously stated that this case is predicated on “a claim for unlawful termination of his employment with the defendant”. He stated that in the instant case, the claimant’s case is that he was dismissed from employment for an offence he did not commit. He concedes that in a pure case of master and servant relationship, it is the law that an employer can terminate the services of an employee at anytime even without giving any reason, but it is also the law that where the employer has proffered any reason for the dismissal of his employee he is obliged to prove the same in a court of law. For this submission, he rely on the Supreme Court case of I.H.A.B.U HMB v. Anyip [2011]12 NWLR (Pt. 1260), 1 @ 19 Paras E – F and the cases of Dangote v. C.S.C. Plateau State Supra at Pg. 156.Sofekun v. Akinyemi [1981] 1 NCLR 135 or (1980) 5 – 7 S.C. 1 and F.C.S.C v. Laoye [1989] 2 NWLR (Pt. 106) 652 at 706, Paras G – H.
In the light of the above authorities, learned counsel submitted that the Claimant having been dismissed herein on allegation of serious criminal offence, the onus is on the defendant to prove same in Court which it had failed to do. Also, contrary to the submission of the defendant that the claimant did not tender the Terms of Contract of Service/Letter of Employment to prove breach by the defendant, he submitted that it is rather the defendant that should first prove the allegation of crime and then tender the Terms and Conditions of Service to justify the dismissal. He argued further that the fact of his employment was pleaded and admitted by the defendant in paragraphs 2 & 3 of its Statement of Defence and also paragraph 2.0.1 of its written address, therefore, the tendering or non-tendering of the letter of employment by him does not arise as it is trite law that facts admitted by parties need no further proof. See Ali v. Albishir [2008] 3 NWLR (Pt. 1073) 94 @ 150 Paragraphs D – E. Furthermore, that it was not alleged that he committed any breach of contract but the grounds for his purported dismissal were clearly set out in the dismissal letter “Exhibit RO1”and also “Exhibit R010”,
Counsel contended that apart from DW1, the defendant did not call any of the three staff who perpetrated the fraud to give evidence against him. Also, that the defendant did not tender any document to show the purported fraudulent loan documentations authorized by him, the names of the beneficiaries of the loans were not pleaded or shown by evidence and that the quantum of the purported loss to the defendant allegedly incurred by him was not pleaded or shown by evidence. Rather it is the claimant that tendered “Exhibit R05” (three sets of forms) to show that he followed the proper procedure before signing the application forms and forwarding them for final approval/disbursement to Head Office. He submitted therefore that the defendant has failed woefully to prove that he conspired to perpetrate or perpetrated any fraudulent act or that he incurred losses to it in respect of loan approvals or in any other manner.
The claimant further argued that the alleged breach was only a concocted allegation by the defendant in order to nail him as the defendant neither led evidence to prove this allegation nor did it tender the purported document but only tendered two documents in evidence out of several documents pleaded directly or by implication in their Statement of Defence and list of documents to be relied upon and that even those two documents it tendered as “Exhibits DF 1 and DF 2” were mere duplication of “Exhibit RO4. Counsel contended that the failure by the defendant to tender these documents shows that either the documents are non-existent or they will work against its case if provided. He relied on Section 167 of the Evidence Act, Ekweozor v. Reg. Trustees, SACN [2014] 16 NWLR (Pt. 1434) 433 @475 Paras A – E. In proof of the alternative relief for N268, 999,793.88 claimed in form of Special Damages, counsel posited that Exhibits R03, RO11 and RO12 tendered by the claimant and that the pieces of evidence were neither challenged under cross-examination nor was any contrary evidence produced throughout the trial by the defendant. It is his submission that claimant has proved the special damages under substantially exact calculations, he relied on Odulaja v. Haddad [1973] 11 SC 216 @ 220 Para 10 and N.B.C. Plc. v. Ubani [2009] 3 NWLR (Pt. 1129) 512 @ 547 Paragraph F. He concluded that he has proven his case through over-whelming evidence on the balance of probabilities and that the defendant, on the other hand, has no evidence to prove its case or controvert that of the claimant. He therefore urged the court to give judgment in his favour and grant the reliefs claimed particularly the alternative reliefs.
Having carefully gone through the Claimant’s Complaint and the Defendant’s statement of Defence as well as their accompanying processes; the oral evidence of witnesses before this Court and the written submissions of Counsel on both divide. It is my calm view that the sole issue that would best determine this case is the issue framed by the claimant; which is whether or not the Claimant has proven his case and thus entitled to the reliefs sought?
The Claimant’s grouse for which he took out a Complaint against the Defendant was that he was alleged to have authorized fraudulent employee credit loans for staff of Edo State Sport Council, sequel to which the Defendant issued him queries and invited him to appear before the Bank’s Disciplinary Committee which he did. His grouse is that the real perpetrators of the act confessed to the Police and were indicted, but he was however exonerated, nonetheless he was suspended and was wrongfully dismissed by the Defendant. The Defendant on the other hand argued that the Claimant admitted that he negligently authorized employee credit loans for purported staff of the Edo State Sport Council who turned out to be fraudulent and that by virtue of his position he failed to carry out his responsibility of confirming the staff of Edo State Sport Council, as such he was disengaged from its employment after he appeared before the Disciplinary Committee to explain the level of his culpability, also that he knowingly failed and refused to follow the stipulated terms and conditions in the Defendant’s policy and guidelines on loan administration.
Before delving into the substantive suit, it is clear from the circumstances of this case and both parties are ad idem that the relationship between them is purely a master and servant relationship. To this end, it is just to reiterate the position of the law on employment relationship of this nature, which is that the bedrock/foundation upon which the relationship can stand is on the terms and conditions of the contract for which parties are to be bound, See the notorious case of Osisanya v. Afribank Nigeria Plc [2007] ALL FWLR [Pt.360] 1480, Osakwe v. Nigeria Paper Mill Limited [2015] 65 NLLR [Part 213] 171. It is trite and notorious that a Claimant/employee has a primary duty of placing before the Court the terms and Condition of service regulating his employment with the Defendant/employer and also to prove the way and manner the said terms and condition were breached by the employer. See John Oforishe v. Nigerian Gas Co. Ltd [2017] LPELR-42766 SC, Mighty Plastic Industries Limited v. Okeke [2016] LPELR-41034, Nitel Plc v. Akwa [2006] 2 NWLR (Pt.964) 391.NRW Industries Limited v. Akingbulugbe [2011] 11 NWLR (pt. 1257) CA. Apposite to state that it is not in contention that the claimant was an employee of the defendant as argued by the claimant, as clearly averred vide paragraph 3 of the defendant’s statement of defence that “claimant was the Manager of Uselu Branch of the Bank before his exit” what the defendant is however contending is that the Claimant failed to tender the documents evincing the contract of employment between him and his employer. It is the position of the law as stated supra that an employee who is complaining that his employment has been wrongfully brought to an end has the primary duty to draw the attention of the Court to the terms and conditions of his employment and show in what manner the wrong was done. See Ogbonna v. Neptune Software Limited [2016] 64 NLLR (part 228)P. 518; Okumu Oil Palm Co. Ltd Vs. Iserhienrhien [2001] 6 NWLR Pt. 710 Pg 660. This the claimant has failed to do. It is apparent aside from the fact that the claimant failed to tender his contract of employment before the Court, that the relationship between both parties is master servant. I so find and hold.
Now to the gravamen of the suit, parties are in agreement on the fact that the Claimant was a Manager in the defendant bank having been promoted to the position on 1st of April 2012 vide a letter dated 17th February, 2012, Exhibit RO. It is also the averment of the Claimant that on the 15th of January, 2015 he was told to proceed on a “Recovery Suspension with Half Pay” vide Exhibit RO2 following his appearance before the Disciplinary Committee and his involvement in the authorization of credit loans to staff of Edo State Sports Council and especially his failure to conduct due diligence before granting the said loan that turned out fraudulent. His grouse however, is that there is no reasonable ground upon which he was found to have breached the defendant’s policy, warranting his dismissal. It is the admission of the Defendant vide paragraph 7 of the Statement of Defence and paragraph 5 of the written statement of DW1 that the dismissal of the Claimant’s employment was predicated on his negligence in the authorization of the credit loan to the purported staff of Edo State Sports Council. The defendant stated further that sequel to claimant’s dismissal he was issued queries on the 14th October 2014 and 28th October 2014 and by the letter dated 15th October, 2014, wherein he conceded to have neglected and failed to carry out his responsibility of confirming the authenticity of the employment of the applicants from the Edo State Sport Council who applied for the salary advance loans from the defendant. It is the law that an employer who hires an employee has the right to terminate/dismiss the employee for good, bad and of no reason at all, however, the right of an employer to dismiss its employee must be done in line with the conditions of service between it and the employee. See the case of Ante v University of Calabar [2001] 3 NWLR (Pt 700) 239 CA. I have stated supra that the claimant did not tender any contractual terms to aid the Court to determine whether or not the defendant breached any term of the contract between the parties. Howbeit, it is on record that the claimant in this case was issued queries in writing on the 14th and 28th October 2014 which he answered on the 15th and 29th of October, 2014. This is a clear indication that the defendant complied with the requirement of fair hearing before it dismissed the claimant. By the authorities of Imonike V. Unity Bank Plc [2011] LPELR-1503 SC; African Newspaper ltd &Anor v Mr Jacob O.Akano [2014] 4ACELR P.60, in an ordinary master and servant relationship, issuance of a query by an employer and response thereto satisfies the doctrine of fair hearing. It is the contention of the claimant that the defendant’s having given a reason for his dismissal must prove same. It is settled law that where a reason is given for the dismissal, the employer must justify same once it is challenged, See the cases of Institute of Health ABU Hospital Management Board V. Anyip [2011] LPELR -1517SC, PENGASSAN V. Schlumberger Andril Nig. Ltd [2008] 11 NLLR (Pt.29) 169. It is deducible from above that the defendant also has the duty to prove the reason for dismissing the claimant from its employment, the Defendant having stated vide Exhibit RO1, paragraph 25 of the Statement of Defence and the evidence of DW1 that the dismissal of the claimant was premised on the authorization and disbursement of fraudulent loan transaction. By Agbo v CBN [1996] 10 NWLR (Pt. 478) 370 CA, an employer who determines the employment of its employee, has to prove that the staff was removed for misconduct and also that the staff was given adequate opportunity to explain and or defend the alleged misconduct. At common law there are certain duties imposed on an employee towards his employer, one of which is to take reasonable care and to exercise due diligence in the performance of his duties. See Akinniranye v. Stanbic IBTC Bank & Ors [2014] LPELR-22250CA. The contention of the defendant is that the claimant failed in his duty of care towards ensuring due diligence and breached the defendant’s rules and guidelines when he authorized the disbursement of the fraudulent loan transaction without due verification. The apex Court in Usen v. Bank of West Africa Ltd [1965] 1 All NLR; where the Bank dismissed the Claimant for issuing a teller bearing his signature and the imprint of his rubber stamp to a customer for an amount which he neither entered nor accounted for and the manager felt obliged to honour the teller and pay on it, held that negligence even without a criminal import can be so gross as to be misconduct of a kind which justifies dismissal. This was followed in Akinniranye’s case supra, where the appeal Court held that the negligence of the claimant in disbursing the draft to the customer without following laid down procedure is a misconduct of a serious nature for which the defendant is justified by summarily dismissing her. The claimant in this case under cross-examination, stated that he is guided by the check list provided by the defendant to check if the documents are in place as submitted by the account officer, and once he does that he signs if the documents are all in place. He further stated that it is the risk management department that is in charge of approving loans. I have perused Exhibit RO5 which is the Employee Credit Application and Approval particularly at page 3, it discloses that the claimant alongside one Abiodun Doyin confirmed and agreed to grant the facility to one Osagie Rita, Osaro John and Nosa Osakuwa who are purported staff of Edo State Sport Council. Now having appended his signature of confirmation to authorize the disbursement of loans which turned out to be faux pas, can he claim that the defendant has not proved its reason for dismissing him? I answer same in the negative for the simple reason that as a Branch Manager, he has the huge responsibility of securing/safeguarding the interest of the Bank at all times and had it been he investigated properly as he claims, he would have found out the fraud about to be perpetrated and thus refuse to affix his signature therein for approval. I find it expedient considering the facts before me and on the authority of Usen’s and Akinniranye’s cases supra to find and hold that claimant’s dismissal from the employment of the defendant is justified and thus not wrongful. Accordingly, claimant’s relief A failed and thus dismissed.
It is claimant claim that he is entitled to reinstatement and that all his entitlements, allowances and sundry financial entitlements from the 24th February 2015 to the date of judgment in this matter. there is no general rule of a master and servant relationship which entitles the victim of a wrongful determined employment to a right or to order the Court for reinstatement, See Ogbaji V. Arewa Textiles Plc &Anor [2015] NLLR (part 212) 32 NIC, this is because to do so would amount to foisting a willing employee on an unwilling employer which the Court is precluded from doing. That is a servant will rarely be forced on a master and vice versa, see Osakwe V. Nigeria Paper Mill Limited supra. It is also trite law that where an employee under a simple contract as in this instance, is guilty of misconduct, he could be dismissed summarily without notice and without wages. It is in this light that I find that claimant’s claims C fails.
As regards the Claimant’s claim for cost of this suit in the sum of Two Hundred Million Naira (N200,000,000), the law is trite that cost follows event and usually granted to a successful litigant and by virtue of the provisions of Order 55 Rule 1 of the National Industrial Court rules 2017, cost is fixed at the discretion of the Court. The discretion has to be exercised judicially and judiciously, not by hunch or fancy, see the case of Nigeria Society of Engineers v. Ozah [2016] 64 NLLR (Pt 225)17-18. I hereby exercise my discretion and refuse an award as to cost in view of the fact that the Claimant in this case failed to establish his case before this Court.
It is obvious from the decision of Court herein that the claimant has failed woefully to substantiate his claims before this Court. Accordingly he is not entitled to all the reliefs sought.
It is for the avoidance of doubt that I hold that claimant’s claims fail in its entirety. Consequently, claimant’s case is hereby dismissed.
Judgment is accordingly entered
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
