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National Industrial Court

Miss. Vivian Chinedu Okwudiafor -VS- Diamond Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

 

DATE: JULY 12, 2018                                                          SUIT NO: NICN/LA/364/2015

 

BETWEEN

Miss. Vivian Chinedu Okwudiafor                                  –                         Claimant

 

AND

Diamond Bank Plc.                                                              –                                   Defendant

 

REPRESENTATION

Paul .I. Omoijiade with Stephany Ukonga-Ojeikere

for the Claimant.

Udochi Iheanacho with Akudo Nnaji for the Defendant.

 

 

JUDGMENT

  1. Introduction & Claims

The Claimant commenced this suit on 24/7/15 via a General Form of Complaint, Statement of Facts and all requisite frontloaded processes and sought the following reliefs –

  1. A declaration that the purported dismissal from employment of the Claimant is unlawful and wrongful as the said dismissal was done without following due       process/procedure laid down in credit policies manual.
  2. An order of this Court compelling the defendant to withdraw the purported letter of dismissal.
  3. An order of this honourable court compelling the Defendant Bank to reinstate the Claimant to her employment which was terminated through dismissal without due            process/procedure laid down in the Defendant Bank’s credit policies manual.
  4. An order of this honourable court compelling the Defendant Bank to pay the salaries and other allowances due to the Claimant from the date when the Claimant    was placed on suspension, to the date of the purported dismissal.
  5. An order of this Honourable Court compelling the Defendant Bank to pay the salaries and allowances due to the Claimant from the date of purported dismissal         to the date of judgment or and in the alternative.
  6. An order that the Defendant Bank pay the sum of =N=3,000,000.00 (Three Million Naira) to the Claimant as damages for the setbacks and trauma suffered as    a result of the purported wrongful and unlawful dismissal or in the alternative.
  7. An order of this Honourable Court compelling the Defendant Bank to reinstate the Claimant to her employment which was terminated through dismissal without due            process/procedure laid down in the Defendant Bank’s credit policies manual.
  8. An order that the Defendant Bank refund all deductions from the account of the Claimant on the strength of the illegal “discipline loan” account opened in the         name of the Claimant in 2010.
  9. An order that the Defendant Bank credit the account of the Claimant with the unearned Rent allowance of =N=283,317,57 and unearned Medical Allowance of   =N=5,217.78 debited to the Claimant’s account by the defendant.
  10. An order that the Defendant reverse all interest debited to the Claimant’s account as a result of all the illegal deductions to the Claimant’s account.
  11. An order that the Defendant pay interest on payment under Paragraphs d, e, f and i at 20% to the Claimant.
  12. And such other orders the Court will deem just and equitable.

 

  1. Counter Claims

The Defendant entered an appearance to this suit on 12/11/15 and by her amended statement of defence and counter claim dated 10/7/17 sought the following counter claims –

 

  1. A declaration that the Defendant is entitled to recover the sum of =N=2,255,478.98 (Two Million Two Hundred and Fifty Five Thousand Four Hundred and Seventy Eight Naira, Ninety Eight Kobo only) claimed by the            Defendant.
  2. Judgment in the sum of =N=2,255,478.98 (Two Million Two Hundred and Fifty Five Thousand Four Hundred and Seventy Eight Naira, Ninety Eight Kobo only).
  3. Interest on the said sum at the rate of 22% per annum from the 30th day of April, 2017 until judgment and payment.

 

IN THE ALTERNATIVE

  1. A declaration that the Defendant is entitled to recover the sum of =N=1,788,731.94 (One Million Seven Hundred and Eighty Eight Thousand,   Seven Hundred and Thirty One Naira Ninety Four Kobo only) as at the 1st of September, 2015.
  2. Judgment in the sum of =N=1,788,731.94 (One Million Seven Hundred and Eighty – Eight Thousand, Seven Hundred and Thirty One Naira Ninety Four Kobo            only) as at the 1st of September, 2015.
  3. Interest on the said sum at the rate of 22% per annum from the 1st of September, 2015 until judgment and payment.

 

  1. Case of the Claimant

The Claimant opened her case on 17/5/16 and testified as CW1. CW1 adopted her witness statement on oath dated 24/7/15  and her additional witness deposition dated 19/2/16 as her evidence in chief and tendered 14 documents as exhibits. The 14 documents were admitted in evidence and marked as Exh. C1-Exh. C14 respectively.

 

The case of the Claimant as revealed from her witness depositions is that she was employed as a staff of the on 20/4/09; that she was placed on suspension without pay on 4/6/14 on the allegation that she failed to confirm invoices before facilities were extended to Sodium Brand Solution Limited (a customer of the Defendant Bank); that she was invited to the staff Disciplinary Panel on 12/5/15where she was told that she did not confirm invoices before facilities were granted to Sodium Solutions Ltd; that she responded to the allegation that she confirmed the invoice for =N=50.1 million in May 2013 verbally from Airtel while the second invoice was confirmed by her colleague Miss Alice Akpoguma; that the fact of the invoice issuance was confirmed to Diamond Bank Plc. by Airtel in their letter of 13/9/13; that Sodium Brand Solutions Ltd domiciled payment of the invoice proceeds to Diamond Bank Plc. on 18/6/13; that under the Defendant credit policy manual domiciliation/confirmation of invoices is the absolute responsibility of the Business Managers/Regional Managers and not that of the Account Officer; that the facilities extended to Sodium Solution Ltd were restructured on 24/12/14 by the Defendant; that she was dismissed on 4/6/15 on the allegation of non-confirmation of invoice before availment of invoice Discount facility; that the mandatory retirement in the Defendant Bank is 35 years in service and that she was dismissed after 6 years in employment; that under the Defendant Credit Policy Manual failure to observe due diligence in the confirmation of invoices financed by the Bank leading to loss shall attract caution letter, recovery suspension or termination not dismissal; that she contacted her Solicitor Mr. Paul Omoijiade of Paul Akhere Chambers who wrote the Defendant Bank on 17/6/15 and demanded my reinstatement; that the Defendant replied her Solicitor’s letter on 25/6/15 that her dismissal was in line with the policies of the Bank and cannot be reversed; that her dismissal from service for the allegation of not observing due diligence in the confirmation of invoices in high handed and done in violation of the provisions of the defendant credit policy manual.

 

Claimant added that her dismissal was done by the Defendant to avoid payment of her outstanding salaries while she was on suspension; that she was on a monthly salary of =N=328,000.00 before her dismissal from employment; that the Defendant created a loan tagged “Discipline loan” for =N=3 million in 2010 in her name on the facility extended to D’OSSYS CO (Customer of the Bank) that was not repaid on due date; that she did not apply for this loan nor guaranteed the facility; that she was debited unearned Rent Allowance of =N=283,317.57 from June 2014 to December 31, 2014 and Unearned Medical Allowance of =N=5,277,78 for the same period; that she was never paid the above sums; that she has never committed any irregularity nor given query or warning howsoever as an employee of the Defendant Bank for the past years she had been working with the Defendant as she carried out my duties diligently; that her dismissal from employment by the Defendant was done in bad faith, without giving her fair hearing and without following the procedure laid down in the Personnel policies manual and credit policy manual; that her dismissal from employment in the Nigerian financial sector caries negative tag on the former employee and may prevent her from securing employment in the financial sector in future and that the purported dismissal has caused her untold hardship as her salary is the only source of livelihood and that of her dependants.

 

Under cross examination, the Claimant testified that she joined Defendant on 10/4/09; that she had no previous disciplinary issues before this case; that the Disciplinary loan was a temporary overdraft that last for 30 days; that it was given to a customer of Defendant not to her; that it became issue for her because the customer did not pay back within 30 days allowed; that she is in Court because the Bank dismissed her; that she  was not given the responsibility to confirm the invoices of Airtel Networks respecting the facility; that she just decided on her own to take extra steps to confirm same; that she did the confirmation at the Airtel Headquarter at Banana Island, Lagos; that she went there to confirm and told the Bank that she went there and confirmed the invoice; that she endorsed on the credit approval document through a Software called “Kastle”; that she went to Airtel on 15/5/13 and that at Airtel Networks she was directed to the Finance Department where she showed the Invoice and same was confirmed to he verbally by one Mr. Kunle who told her that Airtel Networks does not confirm in writing. Claimant added that the Invoice was dated May 2013; that the facility was given in May; that she was the Account Officer to Sodium Brand Solution; that she is not too sure of  the amount on the invoice; that the customer presented the Invoice and 2 days later presented Exh. C2; that Exh. C4 refers to the Invoice in Exh. C2; that at the time Exh. C8 was made she was on suspension; that the Solicitor to the Customer gave her a copy of Exh. C8 because she was on suspension then; that she was later invited to staff Disciplinary Panel on May 2015; that there were 13 members on the Panel and that she was given opportunity to explain herself at the Panel; that she is aware that she is bound by the provision of Defendant Staff Handbook.

 

  1. Case of the Defendant

On 15/11/17, the Defendant opened its defence. It called one Ugonna Onyeama as its DW1. DW1 adopted his witness statement on oath dated 30/6/17 as its evidence in chief. Witness also adopted his additional witness deposition dated 18/7.17 as his additional evidence in chief in this case and tendered 8 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D8 respectively.

 

The case of the Defendant as revealed from its pleadings and evidence is that the Defendant is a public liability Company that carries on business as bankers and which engaged the Claimant in its employment as an Account Officer sometime in April, 2009; that the Claimant was an Account Officer to a borrowing customer of the Defendant – Sodium Brands Solutions Limited to whom the Bank granted an invoice Discount Facility in the sum of =N=50,100,000 (Fifty Million One Hundred Thousand Naira) and which facility had accrued to the sum of =N=55,700,000 (Fifty Five Million Seven Hundred Thousand Naira) as at the 27/11/13; that in the course of the facility approval process, the Claimant falsely confirmed the Airtel invoice presented by the Customer by entering and endorsing in the Credit approval documents in the Kastle Software claiming thereon that she visited the offices of Airtel Nigeria (customer of Sodium Brands Limited) and verified the invoice submitted by the said Sodium Brands Limited as security for the facility applied for; that the confirmation of the Claimant enabled the grant of the facility to the said Sodium Brands Solutions Limited; that the Defendant’s customer Sodium Brands Limited defaulted in the repayment of the facility and diverted the proceeds of the invoice to another Bank; that the Defendant subsequently became aware that there were irregularities in compliance with the credit approval and that the invoice was not confirmed; that following unsatisfactory responses from the Claimant it became necessary for the Defendant to investigate and ascertain the truth regarding the Claimant’s assertions and as a result of which the Defendant became exposed to the tune of =N=55,700.00 (Fifty Five Million Seven Hundred Thousand Naira) to Sodium Brands Solutions Limited.

 

It is the case of the Defendant that in line with the Defendant’s disciplinary policies and procedure the Claimant was placed on recovery suspension without pay in accordance with the rules and policy of the Defendant during which period the Defendant conducted an investigation and made concerted efforts to recover the outstanding sum from Sodium Brands Solutions Limited; that the Defendant discovered in the course of the investigation that the Claimant had lied and had been dishonest in endorsing on the credit approval documents/software that she had confirmed the invoice; that subsequently, the Defendant set up and invited the Claimant to a hearing of the Staff Disciplinary Panel where she was given due hearing and the opportunity to defend herself; that at the end of the hearing the panel found that the Claimant had been untruthful and negligent in the discharge of her duties to the Defendant and recommended that she be dismissed from the employment of the Defendant; that the Claimant was thereafter dismissed from the employment of the Defendant by virtue of the letter dated the 4/6/15; that upon her dismissal from the employment of the Defendant, the Claimant caused her Lawyer to write a letter to the Defendant in which it was claimed that the dismissal was wrongful and a demand for the re-instatement of the Claimant was made; that it was also claimed that the Defendant had debited the Claimant’s account with it to the tune of about =N=2,500,000; that at the time of her dismissal from the employment of the Defendant, the Claimant had an outstanding loan which had been granted to her by the Defendant and which had an outstanding balance of =N=1,746,336.36 (One Million Seven Hundred and Forty Six Thousand Three Hundred and Thirty Six Naira Thirty Six Kobo) as at the 15th day of June 2015; that by the terms of the loan and the policy of the Defendant the loan was to begin to attract interest at the Defendant’s commercial rates upon the determination of the employment of the Claimant in line with the practice of the bank, the Claimant had also been paid upfront rent and medical allowances which were amortized monthly as part of her pay package and which amortization ceased upon her suspension from the Defendant and no further amortization was done following her subsequent dismissal from the employment of the Defendant; that the Claimant also had an outstanding Disciplinary Loan with the Defendant which started in 2010 and had an outstanding balance of =N=742,665.21 at the time she was dismissed and that whilst the action was pending due to a change in the policy of the Defendant the Defendant reversed all the debits and charges made to the Claimant’s account as Technical Overdraft with regards to the disciplinary loan and as a result the Defendant amended its Counter Claim against the Claimant to reflect the correct amount that is outstanding from the Claimant and that as a result the Defendant counter-claimed against the Claimant for the sum =N=2,255,478.98 (Two Million Two Hundred and Fifty Five Thousand Four Hundred and Seventy Eight Naira, Ninety Eight Kobo only) as at the 30/4/17 with interest at the rate of 22% thereafter or in the ALTERNATIVE the sum of =N=1,788,731.94 (One Million Seven Hundred and Eighty Eight Thousand, Seven Hundred and Thirty One Naira Ninety Four Kobo only) as at the 1/9/15 with interest at the rate of 22% from the 1/9/15 until judgment is delivered. The Claimant duly admitted receiving the loan from the Defendant.

 

Under cross examination witness stated that he has been with Defendant for 12 years; that he has never worked in the Credit or Lending Department of the Defendant; that to allow a customer to draw on a facility, the facility must have been booked; that the security prescribed by the Bank must be in place; that the condition precedent to availment of the facility is confirmation of domiciliation of proceeds; that the Claimant was placed on recovery suspension pending the completion of investigation; that the Claimant was not paid during the period of recovery suspension; that the loss sustained by Defendant from the transaction leading to the Claimant’s dismissal was not known and that the indebtedness of the customer to the Bank can be verified from the customer’s statement of account.

 

At the close of trial, and pursuant to the direction by the Court learned Counsel on both sides filed their final written addresses in accordance with the Rules of Court.

 

  1. Submissions by Learned Counsel

The 31-page final written address of the Defendant was filed on 31/1/18. In it, learned Counsel set down the following 2 issues for determination –

 

  1. The Law permits an employer to discipline its workforce for misconduct or infractions in accordance with the terms and conditions of the employment in this        case due to her misconduct the Claimant was sent on suspension without pay and           after a hearing of the Claimant by the Defendant’s Staff Disciplinary panel, she           was dismissed. The steps taken by the Defendant prior to the dismissal were   incompliance with the staff Handbook governing the employment – “Human             Capital Management – Discipline”. Was the dismissal of the Claimant wrongfully           or rightly done and if wrongfully done what is the remedy that is available to the    Claimant?.
  2. At the time that the Claimant was dismissed from the employment of the Defendant, the Claimant was still enjoying a commercial loan from the Defendant            and which had an outstanding balance of =N=1,746,336.36 on the 4th day of June       2015 being the day the Claimant was dismissed and the Claimant also had             outstanding upfront payments for the year 2014 which she received before she was          sent on suspension is the Defendant not entitled to recover the outstanding sums             from the Claimant as claimed in the counter-claim.

 

Arguing the first issue set down for determination, learned Counsel submitted that from the pleadings filed this is simply a master/servant relationship matter; that both parties have the right to terminate same subject to complying with the terms of the contract citing Ansambe v. B.O.N Ltd (2005)8 NWLR (Pt. 928) 650; that the Claimant afforded opportunity to defend herself in the allegations leading to her dismissal and that she was dismissed in compliance with the provisions of Exh. D5 & Exh. D6; even if the dismissal of the Claimant is found to be wrongful, the remedy available to the Claimant is in damages rather than reinstatement as sought citing Onalaja v. African Petroleum (1991)7 NWLR (Pt. 206) 691. Learned Counsel further submitted that the Claimant is not entitled to be paid salaries and allowances for the period she was on suspension without pay and that the Claimant’s prayer for refund of deductions based on discipline loan has been extinguished since the Defendant discarded the practice and same admitted by the Claimant. On issue 2, learned Counsel submitted that facts admitted need no further proof; that the Claimant admitted to having obtained loan from the Defendant as well as having received some upfront payments in her account for medical and rents allowances. Counsel prayed the Court to dismiss the case of the Claimant and enter Judgment in favor of the Defendant respecting its counter claims.

 

A final written address was filed on behalf of the Claimant on 7/2/18. It is of 33 pages. In it, learned Counsel set down 5 issues for determination. They are as follows –

 

  1. Whether the Claimant’s dismissal by the Defendant accords with her contract of employment.
  2. Whether the Defendant can lawfully deduct an already earned income from the account of the Claimant after unilaterally dismissing her from employment.
  3. Whether the defendant can lawfully demand for the repayment of a loan repayable from the monthly salary of the Claimant after her dismissal.
  4. Whether the Defendant can suspend the Claimant indefinitely without pay when the powers to do so are not expressly provided under the contract of employment.
  5. Whether the Claimant is entitled to all her reliefs in this suit.

 

Counsel submitted that the dismissal of the Claimant was not in accord with her contract of employment; that by Exh. C3, confirmation of domiciliation shall be handled by the Business Managers/Regional Managers; that the Claimant is neither of these 2 officers; that there is no evidence before the Court to show that confirmation of invoices must be in writing; that by Exh. D6, the punishment for the alleged infractions by the Claimant is warning or termination rather than dismissal and that the Defendant has failed to prove the reason adduced for dismissing the Claimant; that the Defendant has no power to suspend the Claimant indefinitely as the right to do so is not provided expressly under the Claimant’s contract of employment citing ACB Limited v. Ufondu (1997)10 NWLR (Pt. 523) 169; that indefinite suspension without pay amounts to an unfair labour practice citing Reuben & Ors. v. Arik Air Limited (2013)34 NLLR 877-878. Learned Counsel prayed the Court to enter Judgment in favor of the Claimant and dismiss the counter claims sought.

 

Learned Counsel to the Defendant filed a 15-page reply on points of law to the Claimant’s final written address on 2/3/18. Counsel to the Claimant supplied additional authority pursuant to Order 45 Rules 1 & 5 of the Rules of this Court on 26/3/18 while on 30/4/18 learned Counsel to the Defendant also sent to the Court a Certified True Copy of the Court of Appeal decision in Coca Cola Limited v. Mrs. Titilayo Akinsanya.

 

  1. Decision

I have read all the processes filed by learned Counsel for the Claimant and the Defendant. I have a clear understanding of all the issues raised and argued. I listened to the testimonies of the witnesses called at trial both in chief as well as under cross examination. I also watched their demeanor. In addition, I evaluated all the exhibits tendered and admitted and heard the brilliant oral submissions by learned Counsel on behalf of the parties. Having done all this, I narrow the issues for the just determination of this case to be the following –

 

  1. Whether the Claimant has adduced sufficient evidence in proof of her case.
  2. Whether the Defendant has proved its counter claims to be entitled to a grant of all or some of them.

 

This case is a typical case employer/employee case. The Claimant in this case has the burden of proof resting on her to adduce cogent, credible and admissible evidence in support of each head of her claims in order to be entitled to a grant. This proposition is an age-long one to the effect that he who asserts must prove the assertions. See Sections 131 & 132, Evidence Act, 2011. The proof which may be by oral or documentary evidence or both must be such to tilt the pendulum of justice in her favor. The Claimant sought 11 reliefs in all. While some are declaratory in nature others are for sum of money certain. In his final written address, learned Counsel to the Claimant on page 2 abandoned reliefs for reinstatement and payment of salaries and emoluments from the date of the purported dismissal till date of Judgment on the ground that the employment of the Claimant is not with statutory flavor nor was her employment terminated on ground of trade union activities. These 2 reliefs are contained in Reliefs C & E. Therefore, having been abandoned, reliefs C and E are here struck out.

 

Now, has the Claimant adduced sufficient evidence in support of her remaining claims before the Court?  The first relief sought is for a declaration that the purported dismissal of the Claimant from employment by the Defendant is unlawful and wrongful as the said dismissal was done without following due process/procedure laid down in credit policies manual. The law is trite that contract of employment is a voluntary one. There is in it a right of free entry and free exit without let or hindrance subject to complying with the applicable terms and conditions. Either party in an employment relationship may elect out of same with or without giving reason for so doing. This is in tandem with the freedom to enter and to exit. However, where an employer offers reasons for terminating a contract of employment, the law imposes a duty on the employer to adduce sufficient evidence in support of the reason so offered. See Fakuode v. OAUTH (1993)5 NWLR (Pt. 291 47. This is the position of the law and it is supported by a plethora of judicial authorities. See Olaniyan & Ors. University of Lagos & Ors. (1985)2 NWLR (Pt. 9) 599 & WAEC & Ors. v. Nkanta (2006)LPELR-11752 (CA). Now, the employment of the Claimant was terminated by Exh. C9. The termination was by Dismissal. The Defendant was not obliged or under any compulsion to state the reason for reason. However, the exhibit states, in part, thus –

 

”Kindly recall that the Bank recently conducted investigations on your role in the       non-confirmation of discount invoices issued to Airtel on behalf of Sodium Brands    Solutions. Your were subsequently invited to a meeting with the Staff Disciplinary          Panel (SIP) to explain yourself.

Please be informed that the bank, after a thorough investigation of your   explanation, has established that you misled the bank by confirming Airtel’s             invoices submitted at the onset of availment of the Invoice Discount Facility        without visiting nor ascertaining same from Airtel. Your actions showed a lack of    integrity, breached credit policies and caused the bank financial losses.

In line with the policy, kindly be informed of the cessation of your employment            with the Bank by Dismissal with immediate effect”.

 

It was the case of the Claimant that she did not breach any of the policies of the Defendant in all that she did respecting the events leading to this case. Indeed, the Claimant had argued that it was not her responsibility to embark on any confirmation; that she did and that there was no report or complain from Airtel that she did not visit it for the confirmation required. Claimant had further submitted that there was nothing in the policy of the Defendant which required that any confirmation must be in writing. In support of her position, the Claimant had tendered Exh. C3 – a document headed Credit Policy Manual. Though objected to at trial, the document was admitted. Learned Counsel to the Defendant in her final written address had devoted the whole of pages 8-11 to attack Exh. C3 on the ground that it was an extract of a document; that Claimant ought to produce the entire document and that it failed to comply with the provision of Section 84, Evidence Act. During evaluation, I have had reason to have another look at the exhibit. Aside from the argument respecting S. 84 of the Evidence Act, 2011, I agree with the learned Counsel to the Defendant that Exh. C3 is inchoate. The entire document must be presented to the Court to enable the Court have a comprehensive opportunity for detailed evaluation and then take a decision. The trite position of the law is that when a document is necessary for the just determination of a case, the entire document must be tendered rather than a extract of it. It is the law that the whole document must be considered in totality and not in isolation so as to ascertain the intention of the parties rather than in isolation . See Adegbesan & Anor. Ilesanmi (2017) LPELR (CA). Of a truth, Exh. C3 was admitted, the Court is however not hindered at the time of evaluation to expunge a wrongly admitted exhibit or exhibits. See Mallam Dauda Alhaji Sabon Figi Biye v. Alhaji Saleh Ibrahim Biye (2014) LPELR-24003(CA). Therefore, considering the fact that Exh. C3 is an incomplete document same is here expunged from this proceedings. I must be quick to point out however that, Exh. D5 is the same as Exh. C3 already expunged. Exh. C3 is also the same as Exh. D5. They are the same both in contents and number of pages. Therefore, Exh. D5 suffers the same fate as Exh. C3. Thus Exh. D5 is here expunged from this proceedings for the same reasons as stated. The Defendant having hinged the dismissal of the Claimant on a particular reason, it is bound to adduce evidence in proof of same. See WAEC & Ors. v. Nkanta (Supra).

 

Of the 7 exhibits tendered by the Defendant, Exh. D5 has been expunged. I perused the remaining 6 exhibits. The defendant alleged that the Staff Disciplinary Panel found the Claimant culpable of some infractions of its credit policy. Yet, there is no evidence of that credit policy before me. The report of the Staff Disciplinary Panel which allegedly investigated the complaints against the Claimant was not tendered. There is also no evidence of any staff handbook regulating the conduct of staff of Defendant. I note that in all this there is no evidence of query issued to the Claimant and evidence of her reaction to same. From the evidence presented by the Defendant, although it alleged loss of millions of Naira as a result of the infractions committed by the Claimant, I find no evidence in support of that position before me. Aside from this and in tandem with the evidence in chief of the Claimant ( See paragraphs 7, 8 & 9 of the Claimant’s witness deposition dated 24/7/15 and adopted as evidence in chief by CW1), I found Exh. C2 & Exh. C4 germane. While the former is the Letter of instruction to Domicile Payment with Diamond Bank Plc from Sodium Brand Solution to Airtel Network Ltd the latter is a letter dated 13/9/13 from Airtel to the Branch Manager of Defendant titled Re: Letter to Domicile Payment in Favour of Sodium Brand Solution in which Airtel confirmed that ”the invoice payment of No: 0401 for =N=72,625,000 (Seventy Two Million Six Hundred and Twenty Five Thousand Naira) is still valid” and that ”The project verification has just been concluded and payment will be made soon”.

 

Perhaps the equivalent of staff handbook of the Defendant is Exh. D6 an electronic document allegedly effective on 13/3/06. It is headed Human Capital Management Discipline. I perused the 22-page exhibit. It contained among others Types of Disciplinary Action, Infractions, Handling of Infractions & Categorisation of Infractions. The allegation against the Claimant for which she was eventually dismissed is non-confirmation of account invoices issued to Airtel on behalf of Sodium Brands Solutions. See Exh. C9. I find that within the context of Exh. D6, and I agree with the learned Counsel to the Claimant that that amounts to an offence in the column 3 on page 5 of Exh. D6 i.e Misrepresentation of information or fraudulent reporting. Even at that assuming the Claimant was guilty of the infraction, the Range of Solutions prescribed therein are Warning – Termination rather than Dismissal as meted on the Claimant. In other words, by the evidence of the Defendant as put forward, the Claimant did not deserve the dismissal for the unsubstantiated infractions attributed to her. Even by Exh. D6, the Disciplinary Panel was to make recommendation on the available range of sanctions of which Dismissal is not one. Yet it is doubtful if that was done as there is no evidence to that effect before me. The report of the staff Disciplinary Panel is not placed before the Court. The Claimant ought not have even been placed on suspension without pay at all. This is because suspension without pay or indefinite suspension without pay is not one of the range of sanctions within the context of Exh. D6 that could have been recommended to be meted out on the Claimant. Can the dismissal of the Claimant stand taking cognisance of the available evidence led? I answer this in the negative. I declare that the dismissal of the Claimant by the Defendant is wrongful not having prove the reason for same as required by law.

 

The second relief is for an order of this Court compelling the Defendant to withdraw the purported letter of dismissal. The right and power to dismiss an employee is one solely inherent in an employer. It is a disciplinary power. See Calabar Cement Company Limited v. Daniel (1991)4 NWLR (Pt. 750). Dismissal is also a form of bringing a contract of employment to an end just like termination. However, dismissal not only brings a contract of employment to an end, it is also punitive in nature and depending on the contract of employment very often entails loss of terminal benefits. See Adeko v. Ijebu-Ode District Council (1962)1 SCNLR 349, UBN Plc v. (2012)29 NLLR 329, Ezenna v. KSHSMB (2011)1 NWLR (Pt. 1251) 89 & Ante v. University of Calabar (2001)3 WLR (Pt. 700) 239. However beyond all this, dismissal also carries with it some form of social stigma and unflattering public opprobrium on the employee concerned. See Jombo v. Petroleum Equalisation Fund (2005)40 WRN 17 at 43 & Kano State & Ors. Muhammad (2016) LPELR (CA). In her evidence in chief, the Claimant had testified inter alia that her dismissal from the Defendant was done in bad faith; ”that dismissal from the Nigerian financial sector carries negative tag on the former employee and may prevent me from securing employment in the financial sector in future” and ”that the purported dismissal has caused me untold hardship as my salary is the only source of livelihood and that of my dependants”. Considering the facts, the circumstances and the evidence led in this case, the Defendant is here ordered to withdraw the letter of dismissal from its employment served on the Claimant. The Defendant is further ordered to replace same with a letter of termination of employment. Having so found and held, the Court is empowered to make consequential orders to give effect to this Judgment accordingly. In SCOA (Nig.) Plc v. TAAN & Ors. (2018) LPELR-(CA) the Court pointed out that a consequential order is not merely incidental to a decision or judgment but one flowing directly and naturally from and inevitably consequent upon it. It must be to give effect to the judgment already given. A consequential order is thus an order necessary to give effect to the judgment and which flows from and is a necessary adjunct to the judgment. See Ikare Community Bank v. Bola Ademuwagun (2005) 7 NWLR (Pt. 924) 275. See also Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270 @ p. 288; Usiobaifo v. Usiobaifo (2005) 1 SC (Pt. 11) 60 & Adeyeri II v. Atanda (1995) 5 NWLR (Pt. 392) 516. Earlier the Court of Appeal had noted in Nwaigwe & Anor. v. Amaechi & Ors. (2017) LPELR (CA) that every Court has inherent jurisdiction to make such consequential orders as the justice of the case demands. The Court quoted Oputa JSC of blessed memory in Erisi & Ors v. Idika & Ors (1987) LPELR – 1160 SC; (1987) 3 NWLR (Pt.66) 503 where His lordship stated the position as follows –

 

“It is doubtful if justice can be effectively administered in our Courts, if the Court         do not possess inherent power to make consequential order, orders that directly           or indirectly immediately or intermediately promote the process of litigation and        ensure proper administration of justice. The jurisdiction, inherent through it, may be, to make consequential orders, is the most effective weapon in the      judicial and judicial armory of our Courts. After all, judgment in favour of one     party or the other should be consequential, in the sense that, it should follow from       the facts as found and from the operation of the law on those facts. A            consequential order should, therefore, be that which follows as a result of that has            gone before.”

 

In order therefore for this Judgment to be meaningful and beneficial and as consequential orders, the Defendant is ordered to pay to the Claimant all outstanding salaries up to the date of termination of employment together with all terminal benefits and emoluments as may be due. In its Amended Statement of Defence and Counter claim, Defendant admitted in paragraph 9 that the Claimant was placed on recovery suspension without pay on 20/6/14 while by Exh. C9, the Claimant was dismissed with immediate effect on 4/6/15. I have found in this Judgment that the Claimant ought not have been placed on suspension without pay. It is thus my finding that the Claimant is entitled to her salaries during the period of the suspension and up to the date of wrongful dismissal. I have evidence before me to the effect that the monthly salary of the Claimant was =N=328,000.00 while in the employment of the Defendant. As a consequential order therefore, the Defendant is ordered to pay to the Claimant her salary for the period from 20/6/14 to 4/6/15 in the sum of =N=3,936,000.00 representing her salary and allowances from 20/6/14 to 4/6/15 with 10% interest from June 2015 until final liquidation.

 

I have found and held that there is no justifiable basis for the dismissal of the Claimant. Now, I perused Exh. D6 and by same it is stated on page 2 that Dismissal shall be reported to Central Bank of Nigeria. Therefore as additional consequential order to fully give effect to this Judgment, the Defendant is ordered, if it had already reported the dismissal of the Claimant to the CBN, to again bring to the attention of the CBN the direction of this Court respecting reversal of the dismissal and issuance of letter of termination to the Claimant.

 

Claimant also sought an order that the Defendant Bank pay the sum of =N=300,000,000.00 (Three Hundred Million Naira) to the Claimant as damages for the setbacks and trauma suffered as a result of the purported wrongful and unlawful dismissal. This Court has found and held that the dismissal of the Claimant is wrongful and without basis the Defendant having failed to prove the reason offered the dismissal. The dismissal of the Claimant is a wrong for which this Court is empowered to redress. After all, where there is a wrong, there must be a remedy. See Nnaji v. Luka Madaki & Anor. (2012) LPELR-20097(CA). In plethora of cases, the appellate Courts have said clearly that the measure of damages for wrongful dismissal is, prima facie, the amount the Plaintiff would have earned had he continued in the employment but where the Defendant had the right to terminate the contract before the end of the term, then damages should only be awarded to the end of the earliest period at which the Defendant could have so terminated the contract. See Western Nigeria Development Corporation v. Abimbola (1966) All NLR 150 & Union Bank of Nigeria Plc v. Soares (2012) LPELR-8018(CA). However, the Court of Appeal, not too long ago, in Kano State Government & Ors. v. Muhammad (2016) LPELR (CA) stated that the only exception is that where the termination carries with it a stigma on the character of the employee, award of damages beyond the amount the employee would have earned might be considered. The Court in that case referred to earlier cases of Ezekiel v. Westminister Dredging Ltd (2000) 9 NWLR (Pt 672) 248, British Airways v. Makajuola (1993) 8 NWLR (Pt 311) 276 and Mobil Producing Unit Unlimited v. Udo (2008) LPELR-CA/C/11/2006. I have examined the whole gamut of and circumstances relating to the events leading to the dismissal of the Claimant which dismissal I have found and held to be wrongful. I note in particular the conduct of the Defendant; the suspension of the Claimant without pay and the diverse social consequences of her dismissal. It is my finding that the Claimant deserves to be awarded damages beyond the traditional and nominal pay in lieu of notice. In British Airways v. Makanjuola (supra) the Court of Appeal upheld the trial Court’s award of 2 years salaries as damages in favor of the dismissed employee. Section 19(d), National Industrial Court Act, 2006 empowers this Court to award damages/compensation in appropriate cases. The evidence led before me showed that the monthly salary of the Claimant while with the Defendant was =N=328,000.00. Consequently therefore I award to the Claimant the sum of =N=3,936,000.00 being his salary for one year as damages for the wrongful termination of her appointment. The Defendant is here ordered to pay to the Claimant the sum of =N=3,936,000.00 as general damages as damages for the setbacks and trauma suffered as a result of the wrongful and unlawful dismissal.

 

The  Claimant further sought an order that the Defendant Bank credit her account with the unearned Rent allowance of =N=283,317,57 and unearned Medical allowance of =N=5,217.78 debited to her account by the Defendant.  Exh. D4 which was the letter dismissing the Claimant stated these sums of money as part of the indebtedness of the Claimant to the Defendant. I find as a fact that the Claimant while in the employment of the Defendant was legitimately entitled to these sums of money. The medical and rent allowances were dully paid to her as a bona fide staff of the Defendant. It is on record that the Claimant was willing to continue to work with the Defendant. It is on record that she did not resign her appointment but rather she was wrongfully dismissed without justifiable reason. If the Claimant had resigned from the employment, it would have been a different ball game entirely. For the Defendant to have debited the Claimant’s account with the stated sums as it did, is not equitable or supported by law. There is presently a growing body of labour jurisprudence at the National Industrial Court of Nigeria to the effect that such allowances already paid to an employee could not be recovered nor deducted from the terminal entitlements of the employee. See for instance the Judgment of this Court in Ebenezer Aina Oladigbolu v. Union Registrars Limited Suit No: NICN/LA/440/2012 Judgment delivered on 19/6/14, John Ojuola v. Stambic IBTC Bank Plc Suit No: NICN/LA/444/2012 Judgment delivered on 8/7/16 & Eva Henrietta Akhere v. Union Bank of Nigeria Plc Suit No: NICN/LA/142/2014 delivered on 6/7/17. I find merit in this head of claim and same is granted. The Defendant is here ordered to credit the account of the Claimant with the unearned Rent allowance of =N=283,317.57 and unearned medical allowance of =N=5,217.78 debited to the Claimant’s account.

 

The Defendant sought counter claims against the Claimant as follows – A.            A declaration that the Defendant is entitled to recover the sum of =N=2,255,478.98 (Two Million Two Hundred and Fifty Five Thousand Four Hundred and Seventy Eight Naira, Ninety Eight Kobo only) claimed by the Defendant.;  B.         Judgment in the sum of =N=2,255,478.98 (Two Million Two Hundred and Fifty Five Thousand Four Hundred and Seventy Eight Naira, Ninety Eight Kobo only); C.          Interest on the said sum at the rate of 22% per annum from the 30th day of April, 2017 until judgment and payment. IN THE ALTERNATIVE Counter claimant sought the following –  A.  A declaration that the Defendant is entitled to recover the sum of =N=1,788,731.94 (One Million Seven Hundred and Eighty Eight Thousand, Seven Hundred and Thirty One Naira Ninety Four Kobo only) as at the 1st of      September, 2015; B.            Judgment in the sum of =N=1,788,731.94 (One Million Seven Hundred and          Eighty – Eight Thousand, Seven Hundred and Thirty One Naira Ninety Four Kobo only) as at the 1st of September, 2015 & C.       Interest on the said sum at the rate of 22% per annum from the 1st of September, 2015 until judgment and payment.

 

Counter claim is a procedure that allows the Defendant to maintain an action against the Plaintiff, provided the counter-claim is directly related to the principal claim. See Nsefik v. Muna (2007) 10 NWLR (Pt 1043) 502 & BOCAS Nigeria Limited v. Wemabod Estates Limited (2016)LPELR (CA). A counter claim is akin to and an hybrid of a new suit. By the same measure therefore, a counter claimant has the burden of proving his or her case by adducing sufficiently cogent, credible and admissible evidence in support of the counter claims sought. See Oba Isiaka Ogunmola & Anor. v. Alhaji Lasisi Saka & ors. (2011) LPELR-8946(CA). I have already found and held in this Judgment that it is inequitable for the Defendant to be allowed to recover the upfront medical and rent allowances paid to the Claimant. The counter claims of the Defendant are in alternative. It is founded principally on a loan given to the Claimant while in its employment. In her defence to counter claim dated 10/7/17, the Claimant/Defendant to counter claim admitted obtaining a loan from the Defendant; stated that she was making monthly repayment from her salary and that the outstanding balance on same was =N=1,300,000.00. A loan from any financial institution invariably involves some form of contract with accompanying terms and conditions. It must now be taken as an established custom and practice in the banking industry that a Bank will not grant a loan without a written document containing the terms and conditions especially as relates to repayment and interest chargeable. Indeed, part of the evidence of the DW1 in chief is that by the terms of the loan and the policy of the Defendant the loan was to begin to attract interest at the Defendant’s commercial rates upon the determination of the employment of the Claimant in line with the practice of the Bank. Yet, there is no evidence led in support or proof of the alleged terms as well as policy of the Defendant. Notwithstanding the admission of the Claimant to obtaining loan, the terms and conditions for repayment are not stated before me except that she was to be making monthly repayment from her salary paid to her by the Defendant. Now that the Defendant has wrongfully dismissed the Claimant, has the Defendant not made the continuous performance of that contract impossible?. Indeed, it is for the Counter claimant in the instant to place before me proof of the loan agreement and its terms and applicable conditions. That ought to be done. It was not done. For instance, I have evidence before me to the effect that the Claimant was making repayment on a monthly basis from her salary from the Defendant. It is thus important for the Court to be informed as to when and how the outstanding loan becomes payable immediately. I hold that the counter claims sought are not proved to warrant a grant by the Court. The entire counter claims are accordingly refused and dismissed for lack of proof.

 

Finally, for the avoidance of doubt and for all the reasons stated in this Judgment, the case of the Claimant succeeds in part and I find and hold as follows –

 

  1. I declare that the dismissal of the Claimant by the Defendant is wrongful not having proved the reason for same as required by law.
  2. Considering the facts, the circumstances and the evidence led in this case, the Defendant is here ordered to withdraw the letter of dismissal from its employment      served on the Claimant. It is further ordered to replace same with a letter of           termination of employment.
  3. The Defendant is ordered to pay to the Claimant all outstanding salaries up to the date of termination of employment together with all terminal benefits and           emoluments as may be due.
  4. The Defendant is ordered to pay to the Claimant her salary for the period from 20/6/14 to 4/6/15 in the sum of =N=3,936,000.00 being the outstanding salary of      the Claimant from the date of her unlawful suspension without pay to the date of    her wrongful dismissal with 10% interest per annum from June 2015 till final   liquidation.
  5. The Defendant is ordered, if it had already reported the dismissal of the Claimant to the CBN, to again bring to the attention of the CBN the direction             of this Court respecting reversal of the dismissal and issuance of letter of           termination to the Claimant.
  6. The Defendant is here ordered to pay to the Claimant the sum of =N=3,936,000.00 as general damages as stated.
  7. The Defendant is here ordered to credit the account of the Claimant with the unearned Rent allowance of =N=283,317.57 and unearned medical allowance        of =N=5,217.78 debited to the Claimant’s account.
  8. The counter claims of the Defendant are refused and dismissed in their entirety for lack of proof.
  9. Defendant shall pay the cost of this proceedings assessed at =N=100,000.00 only to the Claimant.

 

All the terms of this Judgment are to be complied with within 30 days from today.

 

Judgment is entered accordingly.

 

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge

 

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