IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN. Ph.D
DATE: 21st November 201
SUIT NO: NICN/EN/28/2014
BETWEEN:
IFEANYI EMMANUEL NWOK0L0 ==================================CLAIMANT
AND
DIAMOND BANK PLC DEFENDANT================================DEFENDANT
REPRESENTATION
⦁ Tochukwu Odo Esq. with Kevin Eya Esq., Chidinma Oko Esq. for the Defendant
⦁ Emeka Ugezu Esq. for the Claimant
JUDGMENT
The claimant commenced this suit on 27/3/2014 wherein he sought the following reliefs from the court;
1). A declaration that the dismissal of the claimant without due notice in compliance
with the Rules of Engagement amounts to breach of the contract of employment.
2). A declaration that the allegation of fraudulent financial practice on the claimant by
the defendant without any complaint or arraignment or any judicial proceedings
against the claimant, amounts to ruining the claimant enviable reputation and career
in the Banking Industry.
3). An order that the claimant’s dismissal exposed him to devastating and traumatic
conditions and exposed the family and dependants to vulnerable and despicable
conditions.
4). One hundred Million Naira (N 100,000,000) damages for the claimant.
OR IN THE ALTERNATIVE:-
⦁ Public apology to the claimant for wrongful dismissal and illicit utterances.
⦁ Immediate reinstatement of the claimant with promotions and other benefits due to him and payment of outstanding arrears of salaries and commissions without any conditions attached.
The claimant filed his witness deposition and bundle of document along with the writ. On the 15/10/2014 he filed a reply to the statement of defence and an additional witness deposition. The defendant filed their statement of defence/ Counter claim on the 23/5/2014 along with a witness deposition of their sole witness. The defendant denied the claims of the claimant and also counter claimed against the claimant as follows;
⦁ The sum of N3,095,060.53 representing the net terminal indebtedness of the Claimant/Defendant to counter Claim owed to the Defendant/Counter Claimant on the dismissal of the Claimant/Defendant to Counter Claim from the employ of the Defendant/Counter Claimant.
⦁ Interest at the rate of 18% on N3,095,060.53 from 30 August 2013 till judgment is delivered in this suit.
⦁ Interest at the rate of 10% on the judgment sum from the date of judgment is delivered in this suit till the sum is fully liquidated.
Hearing in this suit commenced on the 7/2/2018. The claimant testified as the sole witness and tendered the following documents;
⦁ Exhibit CW1-a. Letter of confirmation of appointment dated 25/5/2005
⦁ Exhibit CW1-b. Diamond Bank offer of appointment dated 5/9/2006
⦁ Exhibit CW1-c. UBA offer of appointment dated 14/11/2006
⦁ Exhibit CW1-d. ETB offer of appointment dated5/6/2007
⦁ Exhibit CW1-e. Ecobank offer of appointment dated 13/3/2008
⦁ Exhibit CW1-f Oceanic bank offer of appointment dated19/8/2008
⦁ Exhibit CW1-g. Diamond bank letter of offer of appointmentdated13/5/2010
⦁ Exhibit CW1-h. Diamond bank confirmation of appointment dated 5/6/2012
⦁ Exhibit CW1-i. Diamond bank cessation of employment dated 29/8/2013
⦁ Exhibit CW1-j. Claimant solicitor Letter dated 6/3/2014
⦁ Exhibit CW1-k. Diamond Bank letter titled cessation of employment without notice dated 13/3/2014
The claimant closed his case on the 7/2/2018. The defendant opened their case on the 24/4/2018 and closed their case on the 7/6/2018. The defendant called one witness and tendered the following documents in evidence;
⦁ Exhibit D1. Document titled ‘Anti-money laundering (AML)and know your customer procedure’.
⦁ Exhibit D2. Document titled ‘Credit Processing Policy’
⦁ Exhibit D3. Document titled Human Capital Management Discipline
⦁ Exhibit D4. Document titled ‘Minute of the Staff Disciplinary Panel (SDP) meeting dated 2/8/2013.
⦁ Exhibit D5. Document titled ‘offer of credit facility ‘ dated 10/12/2010
⦁ Exhibit D6. Document titled ‘offer of credit facility’ dated 22/9/2011
⦁ Exhibit D7. Document titled ‘offer of credit facility’ dated 20/7/2012
⦁ Exhibit D8. Document titled ‘offer of credit facility’ dated 7/6/2012
⦁ Exhibit D9. Document titled ‘RE; Cessation of employment’ dated 18/9/2013
BRIEF FACT OF THE CASE
The claimant was employed by the defendant on the 13/5/2010 Before this time, he had earlier worked with 6 other bank including the defendant before returning to the defendant bank again. The claimant was alleged to have facilitated the grant of credit facilities to the customers in the four accounts he managed at Onitsha Iweka Road branch of the defendant. To make the accounts meet up with the qualifying turnover condition for granting the facilities, the Claimant created dummy turnovers by stage managing deposits and withdrawals prior to the grant and disbursement of the facilities. When the facilities were disbursed, the Claimant failed to monitor the stock in the businesses to ensure the repayment of the facilities as contained in the offer of the facilities. The defendant conducted an investigation and recommended that the Claimant be referred to the Staff Disciplinary Panel of the Defendant to explain his role in the improper credit review, processing and management of the four accounts managed by him. The claimant was invited to appear before the panel on the 2/8/2018.
The panel found that the Claimant wilfully engaged in fraudulent financial practices and deviated from bank policies by misrepresenting facts in the processing and packaging of credit facilities. The Panel found that the Claimants actions were in violation of confidentiality. The claimant denies this finding as true. The defendant by a letter dated 29/8/2013 informed the defendant of the cessation of his employment. The claimant is contending that the determination of his employment was in violation of his terms of employment. The defendant in his defence contends that they followed the proper procedure in terminating the claimant. The defendant now counter claims the unearned loans and allowances alleged to have been paid to the claimant. This in a nutshell is the fact in issue in this suit.
ISSUE FOR DETERMINATION
From the facts and state of evidence adduce in this suit only two issues call for determination.
(1). whether the termination of the appointment was in accordance with the terms
of employment if not whether the claimant is entitled to the relief claimed
(2). whether the defendant has been able to prove their entitlement of the reliefs
in the counter claim.
Before I consider this issues, I must state that some of the exhibits tendered in the proceedings are of no help in resolving the issues formulated above. The important issue for consideration is the termination of the contract of employment between the parties. Therefore previous employment documents which have no nexus to this present employment are of no use in resolving the issues in contention. For this reason Exhibits CW1-a to Exhibit CW1-f are of no relevance to this proceedings and would not be considered.
ISSUE 1
The claimant who testified as CW1 was employed vide Exhibit CW1-g on the 13/5/2010. The appointment was confirmed as shown on Exhibit CW1-h. The claimant testified that he continued in the employment until on the 29/8/2013 when the defendant served him with Exhibit CW1-I. The defendant witness DW1 Ugonna Onyema testified on the 24/4/2018. In his evidence on oath he stated that in 2013, the Defendant conducted its quarterly loan review of branches within the South-East directorate of the Bank. following the review, the Defendant set up a committee to investigate some non performing loans in the sixteen accounts in the Onitsha Iweka Road branch of the Defendant. In the course of investigation, the Defendant discovered the flagrant breach of the credit processing policies of the defendant by the Claimant in the processing and management of four accounts. He tendered the offer of credit facility in respect of the said accounts vide Exhibits D5, D6. D7, and D8. He testified further that the claimant was invited to the Staff Disciplinary Panel of the defendant to explain his role in the improper credit grant, processing and management of the four accounts managed by him. The Staff Disciplinary Panel interviewed the claimant and conducted a thorough investigation and examination of the claimants responses. The claimant admitted during cross examination that he attended and testified at the disciplinary committee hearing. After their investigation, the panel established that the claimant wilfully engaged in fraudulent financial practices and deviated from the Bank’s policies. The defendant tendered the minute of disciplinary committee meeting Exhibit D4. In the minute, the panel duly recommended the dismissal of the claimant in line with the Human Capital Discipline Policy of the defendant which guides the employment of the claimant with the defendant. The claimant was informed of the decision vide Exhibit CW1-i on the 29/8/2013.
I have carefully examined the offer of employment i.e. Exhibit CW1-g, paragraph 3 provides;
‘You will be employed on a probationary basis for an initial period of twelve months during which notice of termination by either party will be two weeks or cash in lieu. If at the end of the twelve months your performance is considered satisfactory, your appointment will be confirmed in writing, after which notice of termination by either party becomes one-month notice or salary in lieu; or as may be subsequently prescribed in the personnel policies manual’.
The claimant contention was that he was not given the requisite notice before the termination of his appointment. This is his position in paragraph 8 of his solicitor’s letter of Exhibit CW1-j. I agree with the claimant that the defendant did not follow the procedure envisaged by the letter of employment by giving the claimant the required notice. The defendant has not also denied this fact. The law is that as regarding master servant employment, the master who hires can also fire. Nevertheless it still remains the law that the employer must observe the condition under which the employee is hired in firing the employee otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee. See Organ & V. Nigeria Liquified Natural Gas Limited (2013) LPELR-20942(SC), See also Garuba v. Kwara Investment Co. Ltd. (2005) 5 NWLR (Pt 917) 160: Osianya v. Afribank (Nig) Plc. (2007) 6 NWLR (1031) 565.
On the strength of the above cited authorities and the state of evidence this court hereby holds that the dismissal of the claimant without serving the requisite one month notice or salary in lieu of notice in accordance with the offer of appointment Exhibit CW1-g is a breach of the contract of employment.
It is a settled position of the law that in a master servant contract of employment once an employee succeeds in establishing a breach of the contract of employment, he is entitled to damages for the breach. The question is what is the claimant in this suit entitled to as damages for the breach complained of? The law has long been settled as to the quantum of damages awardable under this circumstance. In the case of Afribank (Nig) PLC. V. Kunle Osisanya [2007] VOL.149 LRCN. 1586. The Court of Appeal. Held ;
It is trite law in ordinary contract of employment where the terms provide for one month‘s notice before termination or salary in lieu thereof, the only remedy an employee who is wrongly terminated can get is a month‘s salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to an end.
See also Francis Adesegun Katto V. C.B.N. [199] 6NWLR (Pt. 607) 390 at 406. Nigerian Marketing Board V. Adewunmi [1972]7 NSCC, 662.
More incisively the Court of Appeal in BRITISH AIRWAYS V. ALHAJI A.O. MAKANJUOLA. [1993] 8 NWLR (Pt. 311) at 276 made a clear distinction on the quantum of damages recoverable in the two instances of termination of employment thus;
The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of failure to give the required notice or as a result of an alleged malpractice. If wrongful termination of the appointment is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter i.e. malpractice, then such a termination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period the notice was required, ( P. 289, paras C -0 ) .
On the strength of this authority, it is the decision of the court that the claimant in this case is entitled to one month salary in lieu of the notice he ought to have been given. However the claimant claims the sum of N 100 million naira damages. Even though the claimant did not claim the one month salary in lieu of notice as clearly stated in Exhibit CW1-g, this class of damages is one that can be awarded by the court since it is the class of damages directly recognised by the position of the law. In the light of the above this court hereby orders the defendant to pay one month salary in lieu of notice to the claimant.
The claimant also seeks a declaration that the claimant dismissal on an allegation of fraudulent financial practice by the Respondent without any proper investigation by the proper authority and/or arraignment before the proper court amounts to ruining the claimant’s enviable reputation and career in the banking industry. I have carefully considered this claim it does appear that the claimant is also challenging his termination on the grounds that his termination on the allegation of fraudulent financial practices is wrongful. The claimant denied that he was involved in any fraudulent financial practice in paragraphs 6 to 27 of the claimant further witness statement on oath. The law is trite and it is that a master has an unfettered right to summarily dismiss the employee without giving reason and for no reason at all. All the employer needs to do is to show that the allegation of misconduct was made known to the employee and he was given an opportunity to be heard in his defence. See Akpan V. University of Calabar. [2016] LPELR 41242.
The Supreme Court in Olarenwaju V. Afribank (Nig) Plc. [2001] LPELR-2573 held ‘ In a master servant class of employment, the master is under no obligation to give reason for terminating the appointment of his servant’ See also Olatubosun V. Niser Council. [1988] 1NSCC 1025.
Where he gives reason for the termination the law imposes on him a duty to establish the reason to the satisfaction of the court. See the case of Shell Petroleum Dev. Co. Ltd. V. Olarenwaju [2008] 12 SC. (Pt.111).
The claimant did not controvert the fact that the defendant set up a disciplinary panel to investigate the allegation of misconduct against the claimant. The claimant admitted he appeared before the panel. The panel recommended the dismissal of the claimant in Exhibit D4. The claimant was given opportunity to defend himself. This court is not called upon in this suit to set aside the proceedings of the panel or question the rationale for the decision of the panel. But rather this court is called upon to determine whether the claimant was properly terminated. Therefore this court cannot make a declaration that the reason given by the defendant for dismissing the claimant amount to ruining the claimant’s enviable reputation and career. The fact that the claimant was not investigated by any law enforcement agency or prosecuted is of no consequence here. This position has the support of the decision in Arinze V. First Bank Plc. [2000] 1 NWLR (Pt. 639) where the court per Olagunju JCA stated;
It seems to me from the perspective of the decisions on the powers of an employer to dismiss summarily his employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the court is satisfied that the employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence.
The law is trite and it is that the master who makes an allegation of misconduct or any other serious infraction that is likely to lead to the termination of the servant must give the servant an opportunity to defend himself before he is terminated.
The court of Appeal in the Case of British Airways V. Alhaji A.O. Makanjuola. [1993] 8 NWLR (Pt. 311) at 276
The proceedings of a panel of inquiry are subject to the rules of
Natural justice. In a case where an investigation is caused to be carried out by an employer to determine allegations made against the employee, the principle of fair hearing which is applicable, presupposes that the employee or the aggrieved party shall be given the chance to confront his accuser before the panel investigating his alleged misconduct.
The court went further to state;
One very related and most significant aspect of this matter and indeed matters of its kind is whether the rules of natural justice were adhered to in the course of either dismissing the servant or terminating his appointment. In a good number of cases, employers in the steam of the haste propelled by annoyance, knowingly or unknowingly breach the natural justice rules. That is where they get into trouble with the law. It is trite law that where a servant is alleged of wrong doing and he faces the risk of losing his job or faces other disciplinary measures on account of that wrong doing he must be given an opportunity to defend himself and this he can do by telling his side of the story. This is an area where the contract of service cannot remove. It is not within the competence of the parties to outlaw the rules of natural justice in a contract of service.
I must also add that it is not the law that in a master servant relationship an allegation of fraud and financial malpractices must be proved beyond reasonable doubt before a master can exercise his powers to terminate his servant. In Aberiola & Anor. V. Aliyu Toye & Ors. [2012] LPELR-14805 (CA) The Court of Appeal held;
To my mind, in a master/servant employment relationship, where an audit committee as in this case investigated the financial position of the employer and found some irregularities in the maintenance and keeping of the records of account, the usage of the word fraud or fraudulent or misappropriation of the funds of the employer is in the general sense and certainly not intended to be with a criminal flavour. And to that extent a proof of such an allegation beyond reasonable doubt will not arise.
From the state of the evidence adduced on this issue this court is satisfied that the defendant had given the claimant the opportunity to be heard on the allegations made against the claimant which led to the decision to terminate the appointment of the claimant. This court therefore refuses to make the declaration sought for in relief number 2 and 3. The said relief are hereby dismissed.
The law is that a court can only consider and award an alternative relief when it is practically impossible to award any of the items sought in the main relief. See the case of Holborn Nigeria Limited V. O. C. Chris Enterprises Ltd. [2014] LPELR-23972. The rule is either the plaintiff succeeds in the main claim or the alternative claim. Since one of the items in the main claim has succeeded, any item in the alternative claim cannot be granted. Accordingly the Alternative claim is hereby dismissed.
ISSUE 2
The defendant in this suit counterclaims the sum of – N 3,095,060.53 which the defendant states is the net terminal indebtedness of the claimant to the defendant. In his witness statement on oath DW1 stated that the defendant availed the claimant some facilities in the course of his employment in the bank. He stated that the facilities are contained in the defendant’s letter dated 18/9/2018 ie. Exhibit D9. This claim is in the nature of special damages and it is trite that law that the defendant must specifically claim the special damages and offer strict proof. See IBWA Ltd. V. Metropole International Ltd. [2010] LPELR-4272. See also the case of British Airways V. Alhaji A.O. Makanjuola. [1993] 8 NWLR (Pt. 311) at 276
Apart from itemising the heads of the said indebtedness of the claimant to the defendant, the defendant did not support his entitlement to that sum with evidence of the loan granted and credited to the account of the claimant. Interestingly in paragraph 25 of the witness deposition containing the items of the net terminal indebtedness the claimant stated ‘I have copies of documents relating to the above facilities’ however the defendant failed to tender the documents relating to the loans granted to the claimant. The mere fact that the claimant during cross examination admitted that he collected some loan from the defendant without stating what amount he collected is no admission of the claims of the defendant, The law is trite and it is that a plaintiff must succeed on the strength of his case and not in the weakness of the defence. See the case of Jovinco Nig. Ltd. &A nor V. Ibeozimako [2014] LPELR-23599.
The defendant therefore failed to discharge the evidential burden placed on them to establish their entitlement to the sum claimed. Therefore this claim fails and is hereby dismissed. As for the claim of interest since the main claim has failed the claim of interest must also fail and is accordingly dismissed.
Judgment is entered accordingly.
HON. JUSTICE I. J. ESSIEN. Ph. D
( Presiding Judge)
