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National Industrial Court

Dr Austine Chikaodi Njoko -VS- Zennith Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: THURSDAY 29TH NOVEMBER 2018SUIT NO.NICN/OW/69/2016

 

 

BETWEEN:

 

  1. AUSTIN CHIKAODI NJOKO…………………………CLAIMANT

 

 

AND

 

 

ZENITH BANK PLC……………………………………….DEFENDANT

 

 

APPEARANCES:

  1. JAHWINS UGOKWE FOR THE CLAIMANT.
  2. BABATUNDE OSINBANJO FOR THE DEFENDANT.

 

JUDGMENT

INTRODUCTION

This suit was commenced by complaint on 26/10/2016. The Amended Statement of Facts dated 28th November 2017 and filed 4th December 2017has the following reliefs in its paragraph 38:

1)                            A declaration that the claimant’s said dismissal on the aforesaid grounds or any other ground is unjustifiable, wrongful, unlawful and void.

2)                            An order directing the defendant to pay to the claimant all entitlement due to him on termination of employment as an officer/staff of his level and years of service in the defendant.

3)                            The sum of N500,000,000.00 (Five Hundred Million Naira) as general damages for wrongful dismissal of the claimant by the defendant.

4)                            An order directing the defendant to withdraw the said memo of dismissed staff with the claimant’s photograph from its intranet page and its in-house computer network and in its place, to publish a full retraction of the contents of the memo of dismissed, and an unqualified apology in respect thereof, at its said internet page [sic] computer network system; within 7 days of the delivery of judgment in this suit.

5)                            The sum of N500,000,000.00 (Five Hundred Million Naira) being general damages for the said libel.

Against the above, the defendant filed her Statement of Defence and Counterclaim on 6th February 2017. Against this too, the claimant filed Amended Reply to the Defendant’s Statement of Defence and Defence to the Counterclaim 4th December 2017. On 27th November 2017, the claimant’s counsel moved the motion for amendment of the Statement of Facts, Reply and Defence to Counterclaim, Claimant Written Statement on Oath, Claimant’s Additional Written Statement on Oath, Claimant’s List of Documents and leave to frontload additional documents. The application was granted as prayed. Thereafter, the matter was adjourned to 29th January 2018. Before the adjourned date, the claimant filed these processes on 4th December 2017.The defendant did not file any consequential amended process. The matter did not come up as adjourned on the 29th January 2018. It was adjournedoff record to 26th February 2018. Again, the matter could not come this day due to the demise of my brother judge, Hon. Justice Auwal Ibrahim. It was therefore adjourned to 20th March 2018 for hearing. It came up as adjourned on the 20th March 2018.

TRIAL PROCEEDINGS

On the 20th March 2018, the matter came up for hearing, and the claimant opened his case testifying as CW1. He was sworn on the Holy Bible. After compliance with other preliminaries, CW1 adopted his twoWritten Depositions on Oath both made 4th December 2017. CW1 tendered 10 exhibits without objection and they were marked seriatim A(1-2), B, C, D, E, F, G, H, J, and K(1-2). On this same day, CW1 was cross-examined. The cross-examination was brought to an end the same day. There was no re-examination. The claimant closed his case immediately thereafter. The case was thereafter adjourned to 7th and 8th May 2018 for defence.

On the said 7th May 2018, the case came up as adjourned and the defendant opened her defence with DW1. DW1, who gave his name as George Anyaegbulam, affirmed and complied with other preliminaries. Thereafter, DW1 adopted his Written Statement on Oath. DW1 tendered 12 documents without objection and they were marked accordingly as DWA, DWB, DWC, DWD, DWE, DWF, DWG, DWJ, DWK, DWL, DWM, and DWN respectively. At this point, the learned counsel to the defendant closed the evidence-in-chief and the case proceeded to cross-examination. The cross-examination was completed the same day. There was no re-examination, and the defence closed her case. The case was therefore adjourned to 9th July 2018 for adoption of final written addresses. But this could not be, as the service was effected on the claimant in Court. The matter was therefore further adjourned to 24th September 2018 for adoption of final written addresses. On this date too, the matter could not go on, as adjourned because, I was transferred out of Owerri Division before the date and had not secured fiat to complete my part-heard matters. The matter was therefore adjourned sine die till obtainment of fiat. After securing the fiat, it was adjourned to 19th October 2018 for adoption of the final written addresses.

On this 19th October 2018, the matter came up as adjourned. After announcing legal representations for the parties, the learned counsel to the claimant, JAHWINS IGOKWE, informed the Court that he had an application to regularize the claimant’s final written address dated 20th September 2018 and filed same date. The learned counsel to the defendant, N.A. ODUWOLE, indicated he was not opposed to the application. It was moved. Thereafter, the Court granted it and deemed the final written address of the claimant filed out of time as properly filed and served. Thereafter, the learned counsel to the defendant moved that,the Reply on Points of Law be deemed, as properly filed and served. As there was no opposition, the application was granted as prayed. Thereafter, the learned counsel to the defendant,N.A. ODUWOLE adopted the final written address of the defendant dated and filed 25th May 2018 and the Reply on Points of Law dated and filed 18th October 2018. The learned counsel also urged the Court to dismiss the case and grant the Counterclaim.

In adumbration, the learned counsel to the defendant submitted that the claimant failed to discharge the burden on him thus making it unnecessary for the defendant to discharge any burden.At this point, the learned counsel to the defendant applied that leave be granted to affix the seal of Mr. Fagbohungbe, SAN the counsel who franked the Bill of Cost without seal. The learned counsel to the claimant opposed this application. The Court ruled that the application was unnecessary and struck it out. Thereafter, the learned counsel to the claimant adopted the final written address of the claimant dated and filed 20th September 2018. In adumbration, the learned counsel submitted that, once a reason is given for dismissal, the burden shifts to the defendant to justify the reasononce,it is challenged by the claimant; and that, if allegation of crime is made in civil suit, it must nonetheless still be proved beyond reasonable doubt. The learned counsel thereafter urged the Court to grant the reliefs claimed by the claimant and, dismiss the counter-claim. Thus ended trial proceedings, adoption of final written addresses and adumbrations thereon.

Consequently, the matter was adjourned to 8th November 2018 for judgment. As the judgment was not ready on this date, it was further adjourned to 29th November 2018. The next work for meis, to summarise the final written addresses of the parties.

SUMMARIES OF THE FINAL WRITTEN ADDRESSES

  1. Final Written Address of the Defendant

CHIEF F.O. FAGBOHUNGBE, SAN and DAPO ODUWOLE franked the final written address of the defendant titled “Defendant/Counterclaimant’s Final Written Address.” The duo formulated four issues, to wit:

  1. Having regard to the allegation against the Claimant and the findings of the Defendant, whether it was justified by the Defendant to dismiss the Claimant from its employment?
  2. Whether the Claimant is entitled to damages and or terminal benefits?

iii.              Having regard to the facts of this case, whether the Claimant has made a case of libel against the Defendant to warrant the award of damages and tender of apology?

  1. Having regard to the facts before this Honourable Court, whether the Defendant is entitled to the reliefs sought in its counterclaim?

Issues 1 & 2 were argued together. The learned counsel submitted that, from the evidence before the Court, the case of the claimant was that the grounds for his dismissal were unjustifiable and unlawful and not that he was denied fair hearing. The learned counsel submitted that, these grounds are to be gleaned from paragraph 27 of the Amended Statement of Facts [ASOF] andthe letter of letter of dismissal dated 18thMarch 2018; and that, they are lawful and justifiable. The learned counsel further justified the dismissal by arguing that,when the operation of the proxy accounts and money laundry were discovered, one of which accounts [Actinum Ltd] was overdrawn by N1,116,000.00, approved by the claimant; a query [Exhibit DWJ] was sent to one Mr. Emeka D. Nwankwo, to which he replied videExhibit DWEthat, all the accounts in issue belonged to one Chief Tony Chukwu, which were opened to increase the chances of the said Mr. Tony Chukwu from winning contracts from NDDC. The learned counsel argued further that, the said Mr. Nwankwo further replied in the query that Mr. Tony Chukwu nominated his sister [Gertrude Eke], who was not a director in the companies on whose names the accounts were opened, as the sole signatory. Counsel said the claimant introduced these accounts to the defendants and that, consequently, query was issued to the claimant on 19th January 2016vides Exhibit DWA, to which the claimant replied vide Exhibit DWB dated 20th January 2016.

The learned counsel went further to state that these accounts were opened in Owerri Branch under the supervision of the claimant, and that, huge cash withdrawals made therefrom were unexplained by the customer.The learned counsel stated further that another query [Exhibit DWF] was issued to Mr. Nwankwo and he replied vides Exhibit DWG and explained that one of the accounts, Rocani Ventures Ltd was originally domiciled at Uyo Branch of the Bank, the former Branch of the claimant, and that, it was transferred to Owerri 3 Branch, to which the claimant was transferred on the order of the claimant. The learned counsel also stated that Mr. Nwankwo further replied in the second query that,the claimant introduced all the other accounts and that he submitted the opening documents too.

The learned counsel went further in the narration justifying the sack of the claimant to state that Mr. Emeka Nwankwo further stated in Exhibit DWG that he was informed of the difficulty Chief Tony Chukwu had in moving his funds to the bank begging him to persuade other account holders in the bank to allow the use of their accounts, and that on basis of this that Mr. Emeka Nwankwo opened the three further different accounts, which accounts details were given to the claimant who handed them over to Chief Tony Chukwu.The learned counsel stated further that Emeka Nwankwo confronted the claimant with the above allegations, and the claimant did not deny. The learned counsel however argued that, the claimant made an unsuccessful attempt to deny prior the knowledge of Mr. Emeka Nwankwo’s allegations under cross-examination, saying that, he only became aware when the Statement of Defence was filed 6th February 2017, but latercapitulated and admitted prior knowledge when he was confronted with the contents of paragraph 16 of the Statement of Facts filed 26th October 2016. The learned counsel also stated that, the Disciplinary Committee via Exhibit DWJ unearthed, during interrogation of Mr. Emeka Nwankwo, the passage of about N28.1Billion through the account between January 2015 and December 2015 via cash withdrawals, which Mr. Emeka Nwankwo confirmed and added that, the signatory mostly signed off the instruments and left while the brother and driver of Chief Tony Chukwu would come to pick the cash, sometime accompanied by the Chief Zonal Head.

The learned counsel went further in their narration to state that the Report of the Executive Disciplinary Committee of 23rd January 2016 also found that the position subsequently taken by the claimant was contrary to the position earlier taken in the presence of Mr. Emeka Nwankwo. They said further that, this Report also confirmed that, the funds that passed through the account belonged to Chief Tony Chukwu, that Chief Tony Chukwu used the various companies to bid for contract in NDDC, that the claimant admitted introducing the account but was not the account officer and that, he admitted accompanying cash delivery to its destination, and consented to Mr. Emeka Nwankwo opening two accounts through which some of these funds passed. The learned counsel submitted that, it was pertinent that no evidence was produced that Chief Tony Chukwu ever won any NDDC contract, and it was on the basis of this that the defendant dismissed the claimant.

The learned counsel referred to the Back’s Law Dictionary definition of money laundry and submitted that, it was not coincidental that Chief Tony Chukwu and the claimant failed to tender evidence of winning any contract from the NDDC, that Chief Tony Chukwu is not a signatory to the accounts in issue while Gertrude Eke, who is the actual signatory, only came to the Bank to sign counter cheques without knowing the worth of her signature; and that, sections 15 & 16 of Public Procurement Act 2007, which deals with bidding for contract would have revealed the identity of Chief Tony Chukwu to the companies. The learned counsel submitted further that, it was still not coincidental that, the huge cash withdrawals, were ostensibly meant for payment of workers on site, and these contracts were not shown to be within Owerri 3 Branch; and that the alleged workers, would have been sourced by an agent who would receive payments on their behalf rather than payments made by transfer to the accounts of the workers.

The learned counsel submitted further that, the plot is further revealed when it is realized that the cash payment on site demanded withdrawals of N300,000,000.00 and N390,000,000.00 at a go and that, the claimant joined the vehicle that delivered the funds to Chief Tony Chukwu. The learned counsel submitted further that the non-coincidental nature of the facts of this plot is further strengthened when it is realized that the cash withdrawal of 23rd March 2015 was from NPG Ltd Account No. 1014099772 and that of 8th April 2015 was also from the same account while other accounts not belonging to Chief Tony Chukwu were used to warehouse these funds. On the basis of the foregoing, the learned counsel submitted that, the claimant was rightly dismissed for transgression of ethical rules as well as aiding and abetting money laundry. The learned counsel submitted that,the claimant is confusing the money laundering with the cashless policy of the CBN and urged the Court to reject this and hold that the defendant was intra vires in dismissing the claimant.

The learned counsel submitted on the issue of terminal benefits that the claimant failed to state the basis of this claim and argued that the claimant is only entitled to pension by virtue of section 4 of the Pension Reform Act [PRA]. The learned counsel submitted that, there is nothing before the Court to show that the pension of the claimant was not remitted as required or that the claimant was prevented from accessing his pension benefits. The learned counsel, on the basis of the foregoing, submitted that, the defendants is therefore, not liable to the claimant in respect of terminal benefits.The Court was therefore urged to reject this relief. The learned counsel submitted further that the frivolity of the relief is accentuated when it is realized that the relief is vague because the claimant could not even show exactly what he was entitled to. The learned counsel finally urged the Court to resolve issues 1 and 2 against the claimant and in favour of the defendant. The learned counsel thereafter moved to issue 3.

On issue 3, the learned counsel argued that libel was not made out against the defendant because the publication in issue was within the enclave of the defendant’s staff alone through intranet, which is just a private computer network of the defendant, and not to the general public and that this was justified because it was to alert the staff from divulging information to ex-staff. The learned counsel submitted that, the record of the Court bore the fact that the claimant did not call any third party that became aware of this information.The learned counsel submitted that the claimant is under obligation to show that he suffered damage to his reputation thereby, and that, this important prerequisite was not met. On this basis, the learned counsel urged the Court to reject this head of claim. The learned duo referred to Iwueke v. IBC (2005) 17 NWLR (Pt. 955) 447 at 483, Paras. E-G to the effect that, it is the duty of a claimant to prove that a third party’s perception of him was negatively affected by the publication, even when no Statement of Defence is filed. The learned counsel submitted that since it was the claimant alone that testified, there was nothing before the Court to show that the publication negatively affected the opinion of third party against the claimant. On the basis of this, the learned counsel submitted that, the case of libel must fail.

The learned counsel urged the Court to expunge the said publication from the record of the Court because under cross-examination, the claimant agreed that it was not printed from the computer but ‘obviously’ snapped by a phone [gsm] because the hp computer and the phone box could be clearly seen on the table. On the bases of all the foregoing, the learned counsel invited the Court to resolve issue 3 in favour of the defendant; and moved to issue 4.

On issue 4, the learned counsel moved to the issue of counter-claim. The learned counsel submitted that, the standard of proof in civil cases is based on the balance of probability and cited Shuaibu v. Muazu (2014) 8 NWLR (Pt. 1409) 207 at 317, Para. B. The learned counsel argued that evidence has been adduced on the fact that the claimant played active role in the money laundry in issue and approved overdraft of 1.11million to Actinum Nig. Ltd and that, the facts relating to the authorization of the overdraft were pleaded in paragraph 17 of the Statement of Defence and Counterclaim while in reaction to this allegation, the claimant merely stated in paragraph 8 of the Amended Reply and Defence to Counterclaim that, paragraph 17 of the Statement of Defence is denied while the defendant is put to strict proof thereof and that, the claimant never took part in any of the incidents contained therein. The learned counselsubmitted that, these denials amount to evasive denials and as such, not qualified as denial. The learned counsel argued that, this is more so, because Emeka Nwankwo made all these allegations against the claimant, in his presence and he did not denythem, and more so, the fact that the claimant failed to sue the said Emeka Nwankwo for defamation showed admittance. The learned counsel submitted that, the fact that the claimant failed to sue Emeka Nwankwo, whom he agreed under cross-examination,that there was no animosity between them to induce the allegations, is a further proof that the indictment was true. The learned counsel therefore urged the Court to find the claimant liable for the N1.11Million.

The learned counsel also submitted further that, because the defendant incurred cost in the professional fee paid to the lawyer and transport fee of N150,000 per trip to the Court, which is exhibited in the Bill of Cost, the defendant had proved the relief against the claimant. The learned counsel opined the rules of this Court which provides for reimbursement of parties on unwarranted cost incurred in prosecuting frivolous suits, and that as such, the defendant is entitled to be compensated by granting the cost of the professional fee. The learned counsel submitted that, this is more so, because the defendant became liable for sanctions by the reason of the defendant’s facilities used by the claimant for money laundering, which violates the Banks and other Financial Institutions Act. On the bases of the foregoing, the learned duo invited the Court to resolve issue 4 in favour of the defendant and grant in her favour damages.

The written address of the counsel to the defendant was brought to an end at this junction. I shall now proceed to a summary of the written address of the claimant in rebuttal.

  1. Final Written Address of the Claimant

CHIEF P.M.B. ONYIA and JAHWINS UGOKWE franked the final written address of the claimant titled “Claimant’s Final Written Address.” Four Issues were formulated, they are:

1)    Whether the dismissal of the claimant by the defendant is not wrongful, and unjustifiable. [sic]

2)    Whether the publication of the claimant’s wrongful dismissal on the defendant’s intranet was not libelous. [sic]

3)    Whether the defendant proved its counter-claim. [sic]

4)    Whether the claimant is not entitled to the reliefs sought. [sic]

 

The learned counsel to the claimant argued these issues seriatim. On issue 1, the learned counselreferred to the reasons given in Exhibit E, the letter of dismissal of the claimant, and argued that, the position of law is that once a reason is offered for dismissal in common law employment, and this reason is contested by the employee, the burden of justifying the reason ison the employer. On this, the learned counsel cited Walters v. Frank Harrison (1922) 4 NLR 73 and I.H.A.B.U.M.B. v. Anyip (2011) 5 SC Pt. 1, 54 at 71.The learned counsel submitted that, that being the case, the defendant herein was bound to lead evidence to show what the rules of the bank were and which of them were breached to justify the dismissal based partly on breach of banking policies and procedures. The learned counsel drew attention of the Court to the fact that, DW1 under cross-examination admitted hat the policies and procedures of the bank were documented. The learned counsel submitted that, arising from this, the failure of the defendant to produce the policies and procedures of the bank raised the presumption, by virtue of section 167(d) of the Evidence Act that, the alleged violated policies and procedures are not in existence, and if in existence, it was not shown that how the claimant breached them. The learned counsel submitted further that, the allegations that the claimant opened proxy accounts contrary to policies and procedures, apart from being unsubstantiated,was equally disproved. The learned counsel submitted that, this is so, because the claimant testified, in paragraph 16 of his Additional Statement on Oath that,he approved none of the documents by which these accounts were opened, and that, opening of account was a branch affair and not his duty.

The learned counsel submitted further that, the allegation of aiding the withdrawal of huge cash via counter cheques against banking policies and procedures was also disproved when DW1 admitted under cross-examination that, there was no limit on the number of transactions that could be carried out on an account and that withdrawals could be made via counter cheques, and that corporate customers use counter cheques when they do not come to bank with their cheques. The learned counsel submitted that, this is more so, because it was not shown or suggested that any of these accounts belonged to the claimantand that, none of the owners of these so-called proxy accounts was called as a witness, and not even Mr. Emeka Nwankwo who allegedly implicated the claimant, was called as a witness, even when the defendant obtained a subpoena for this purpose.

The learned counsel went further to submit that the claimant testified at page 5 of the Amended Statement on Oath that,if it was true that any transaction was done by him contrary to procedures and policies, the defendant had inbuilt control mechanisms and resident auditor at each branch, that would have automatically detected any anomalous transaction and that, none of the cash withdrawals through counter cheques that went for years was ever queried or disallowed. The learned counsel further stated that, on page 3 of Statement on Oath, the claimant went on to state that, in capping the internal control measures, the bank had the compliance group at the Headquarters in Lagos, whose duty is to monitor daily all banking transactions to detect non-compliance. The learned counsel argued that, the above testimonies of the claimant were confirmed under cross-examination by DW1. The learned counsel argued that, with the confirmation of the claimant’s testimonies, it becomes impossible for the defendant to justify the reasons given in Exhibits E and K for dismissing the claimant; and submitted that, this being so, these admissions were damaging to the defendant’s case and strengthens the claimant’s testimonies. The learned counsel cited Adeboye v. Baje (2016) LPELR-40578, and Egbe v. NUT (2008) 5 NWLR (Pt. 1081) 604 to the effect that, admission against interest is the best evidence in favour of an opponent since such admission would never have been made except it is true. Counsel cited Adeosun v. The Governor of Ekiti State & 5 Ors. (2012) 1 S.C. (Pt. 1) 180 to the effect that, evidence elicited at cross-examination on facts pleaded forms part of the evidence produced by the plaintiff and could be relied upon.

The learned counsel submitted further that the dismissal of the claimant was a witch-hunt; and argued that,this submission is valid because none of the staff of the defendant whose duty it was to detect unprofessional transaction testified against the claimant and none of them was indicted for dereliction of duty. The learned counsel also supported this argument on the basis that the automated computer system never queried any of these transactions and while there was no evidence that the claimant approved any of these transactions, evidence is on record that, the defendant made appropriate revenues from all these transactions on the accounts now being questioned. The learned counsel argued further that, assuming the claimant played any role in the opening of the said accounts, the defendant failed to prove that anything was wrong because she failed to tender the account opening forms and related documents to prove this, and that, whereas, the claimant had, in his Reply, denied all allegations of incomplete documentation, thus shifting the burden of proof to the defendant. The learned counsel submitted that, the Court could not speculate on the issue of incomplete documentation.

On the issue of escorting bullion van to deliver huge cash sums to Chief Tony Chukwu, the learned counsel argued that, this also fails since the defendant did not call any eye witness to testify and neither did they produce CCTV footage showing this. The learned counsel submitted that, proof beyond reasonable doubt is the standard of proof required on allegations of crime in any civil suit and cited Agi v. PDP & Ors. (2016) LPELR-42578 (SC). The learned counsel argued that, the defendant who alleged fraud and violation of the Money Laundry Act against the claimant did not state which section of the Act was violated. The learned counsel also submitted that, any confessional statement made by Mr. Nwankwo binds [Exhibits DWD, DWF, DWE, & DWG] only him and cannot be relied upon as evidence against the claimant. The learned counsel cited Mbang v. State (2009) 12 SC (Pt. III) 193. The learned counsel submitted that, till date, the claimant had not been charged on these allegations even with the defendant’s petition to the EFCC and that DW1 confirmed under cross-examination that the claimant was not under investigation, and that these point to the fact that, the EFCC did not find merit in the petition. Citing I.H.A.B.U.H.M.B. v. Anyip (supra), the learned counsel urged the Court to hold that the defendant failed to discharge the burden placed on her to justify the reasons given for the dismissal and submitted that, the claimant not being entitled to reinstatement, is entitled to damages. Thus ended argument on issue 1, and the learned counsel moved to issue 2.

On issue 2, relating to defamation, the learned counsel argued that, the publication in issue was libelous and entitled the claimant to damages. The learned counsel relied on Iloabachie v. Iloabachie (2005) 5 SC (Pt. II) 149; Din v. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392; and Onejike v. Anyabor (1992) 1 NWLR (Pt. 218) 437 on the ingredients of libel. The learned counsel referred to Exhibit K [the notice of dismissal] to argue that, the claimant discharged the burden of proof on the issue of libel. The learned counsel argued that, the claimant showed that the publication,with the claimant’s photo attached, was done on the intranet of the defendant and all its networked computers in Nigeria and abroad, thus affording countless number of people to read; and that those who read it firsthand would in turn tell others such that, the whole world would come to hear of it. The learned counsel argued further that the claimant proved the defamation when he testified that he received numerous calls from his colleagues and peers in the banking sector, friends, relations and associates on the libel, and that, this evidence was not shaken under cross-examination. On this, the learned counsel cited Mogaji v. Nigerian Army (2008) 3 SCNJ 82.

The learned counsel argued that the claimant proved that the reasons given in Exhibit K for the dismissal were false and that the law is that if a defendant pleads justification of libel, the burden of proof is on such defendant to prove the truth of such libel and not on the claimant to proof the falsity. On this, the learned counsel cited Onabanjo v. Concord Press (1982) 2 FNR 75 and Bardi v. Maurice (14 WACA) 414, and submitted that, as argued under issues 1 & 3, the defendant failed to prove the truth of the contents of Exhibit K. The learned counsel argued that since there was no shred of evidence presented to back up the allegations, it followed that they amounted to giving a dog a bad name to hang it. The learned counsel submitted on the 3rd ingredient, that the publication was published to a third party because the parties in this case are the defendant; Zenith Bank Plc and the claimant: Mr. Austin Njoko, hence dissemination of the publication to all the staff of the defendant [home and abroad] in their computer networks amounted to publication to third parties. The learned counsel cited Nsirim v. Nsirim (1990) 5 SC 94 to the effect that, publication in libel means publication to a person other than the person of whom it is written; and submitted that, Exhibit K was authored by the Management of the defendant, as clearly evident on Exhibit K and as admitted by DW1, and this was published to entire staff, which constitute publication to third parties. The learned counsel submitted that the defendant, as a corporate body, is separate and distinct from its members of staff. On this, the learned counsel cited Onuekwusi & Ors. v. The Registered Trustees of the Christ Nethodist Zion Church (2001) 2-3 SC (Pt. 1).

The learned counsel cited the Lexicon Webster Dictionary and Black’s Law Dictionary on the meaning of Management to show that the management of a company are the people responsible its operation and thus different from the other staff, who constitute the third parties in the instant case. The learned counsel moved to the 4th ingredient on the fact that the publication referred to the claimant and was in fact defamatory, and submitted that,this is proved by the Exhibit K specifically referring to “Mr. Austin Njoko” with his passport photo attached thereto and that fact that the publication is defamatory in its ordinary and natural meaning. The learned counsel submitted that, this becomes accentuated when it is realized that the claimant had served meritoriously and received several award/commendation evident in Exhibits B, C, and D, that by saying in Exhibit K that he was involved in “fraudulent opening and operation of proxy accounts with the intent to aid and abet money laundry activities’; ‘collusion with customers for money laundry activities’; and ‘unethical and unprofessional practices in the operation of various account [sic]”, his good standing was tarnished. The learned counsel argued that, it was immaterial that the claimant did not call any person to testify on the libel because the libel was self-evidently defamatory, submitting that libel is actionable per se. The learned counsel cited Oduwole v. West (1990) SCNJ 187.

On the 5th ingredient of libel, which is that the defendant made the publication, the learned counsel submitted that, the facts are rep ipsa loquitor and that, in addition, this was admitted in paragraph 34-36 of the Statement of Defence and in the Counterclaim. The learned counsel submitted that, the claimant is thus entitled to damages and cited Labati v. Badmus (2007) 1 NWLR (Pt. 1014) 119 on how to calculate damages in libel. The learned counsel submitted that, the claimant attained very high level in the banking career, and was a PhD holder in Economics and Chartered Banker, and that by that, the defendant was reckless in the publication and its continued justification of it and that, the publication, being through digital means, had the ability of viral dissemination of the libel to the whole world. The learned counsel also invited the Court to take judicial notice of the depreciated value of the naira. The learned counsel submitted further that, it became clear that, the claimant made a good case of libel against the defendant entitling him to damages and cited Edem &Anor. v. Orpheo Nig. Ltd & Anor (2003) 111 SCM and Oduwole v. West (supra). Thus ended arguments on issue 2, and counsel moved to issue 3.

On issue 3, which deals with the counterclaim, the learned counsel cited section 132(1) of the Evidence Act and Echi v. Nanamani (2005) 5 SC 62 and submitted that, since issues have been joined on the counterclaim, the defendant had the responsibility to prove same. The learned counsel submitted that, all allegations in the counterclaim remained bare facts without evidence in support. The learned counsel argued that, since banking transactions are carried out by documentation, the defendant ought to tender documents in proof of the averment but failed to do so. The learned counsel submitted that DW1 admitted that there was no document to show that the claimant’s approved any overdraft or liquidation of unripe fixed deposits or ordering the payment of interests. The learned counsel submitted that the best proof of the contents of a document is the document itself. The learned counsel relied on Oghareh & Anor v. Mimra & 2 Ors. (2008) 1 SCNJ 409; Eghareba v. Osagie (2009) 12 SC (Pt. III) 123, and section 128 of the Evidence Act.

The learned counsel submitted that, the implication of failure to tender these documents means that there was none and that the allegations were fabricated. The learned counsel argued that the defendant instead of making losses actually benefited from the accounts in question because DW1 agreed under cross-examination that charges were made on all the transactions in issues and that,the defendant has not refunded the profits. The learned counsel submitted that, none of these transactions was queried by all the internal check mechanisms of the bank. On the basis of the foregoing, the learned counsel invited the Court to come to the conclusion that, the bank did not sustain any loss by virtue of theses accounts and were neither sanctioned by the government. The learned counsel argued that, this becomes more so, since the defendant never called any of the alleged customers to give evidence that the claimant perpetrated all these illegalities on their accounts.

The learned counsel now moved to the issue of N200million cost of prosecution. On this, it was submitted that,it becomes preposterous that the defendant would hire an SAN at the alleged cost to prosecute a case she described as frivolous at paragraph 40 of the Statement of Defence. The learned counsel argued further that, the defendant did not prove that she engaged the services of the SAN at the alleged cost. The learned counsel argued that Exhibit DWN [the Bill of Cost] is just a letter of offer to the bank, which offer, was not shown to have been accepted northe bill shown to have been paid. The learned counsel submitted that, the implication was absence of contract contrary to the claim of the defendant. They cited Omega Bank v. O.B.C. Ltd (2005) 2 SCNJ 119.  The learned counsel argued that DW1 admitted under cross-examination that, he had no receipt or letter of acceptance of from the defendant on the Exhibit DWN [the Bill of Cost]. The learned counsel submitted that, even if the bill was even paid, it is not legally enforceable against the claimant by virtue of Michael v. Access Bank of Nigeria Plc (2017) LPELR-41981 CA; Guinness Nigeria Plc v. Nwoke (2000) 15 NWLR (Pt. 689) 135 at 159; and Nwanji v. Coastal Services Ltd (2004) 36 WRN 1 at 14-15, the claim for solicitor’s fee not being part of the cause of action.

Still on Exhibit DWN, the learned counsel submitted that, it is not even admissible in law by virtue of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2010 because no stamp and seal was affixed as required. The learned counsel submitted that, since Exhibit CWN was a letter purportedly written by defendant’s counsel without stamp and seal affixed, it must be deemed, not to have been properly signed by virtue of Omega Bank v. O.B.C Limited (2005) 2 SCM 119. The learned counsel thereafter urged the Court to dismiss the counterclaim; and moved to issue 4.

On issue 4, which relates to whether the claimant is entitled to the reliefs claimed, the learned counsel to the claimant submitted that, based on the arguments canvassed under issues 1 & 2, the claimant had discharged the burden placed on him. Citing Ikoku & Ors. v. Ekuekwu & Ors. (1995) 7 SCNJ 180, the learned counsel submitted that, civil cases are proved on the balance of probability, and that, the evidence adduced in proof of the claimant’s case was totally unchallenged. After issue 4, the learned counsel moved to reaction to the final written address of the defendant.

On the final written address of the defendant, the learned counsel reacted first to the issue of Exhibits DWD, DWF, DWE, & DWG, the queries issued to Mr. Emeka Nwankwo and his responses to them, where it was alleged he made confessional statements implicating the claimant. The learned counsel argued that the purported confessional statements are documentary hearsay; and cited Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298) 24. The learned counsel submitted that, these pieces of alleged confessional statements of Mr .Emeka Nwankwo could not be relied on to dismiss the claimant. The learned counsel argued further that, the report of the alleged investigative panel [Exhibit DWL] showed that the Mr. Emeka Nwankwo and his wife were running the purported proxy accounts in issue,as they were the signatories to the accounts.The learned counsel also argued that, it was wrong to say that the claimant did not deny the allegations against him as he debunked these allegations in his responses [Exhibit G & H] to the two queries issued to him. The learned counsel also attacked the reliance placed on the report of the Executive Disciplinary Committee [Exhibit DWL]in paragraph 4:15 of the defendant’s address, faulting it on the ground that, the proceedings on which the report was based was not tendered, hence it was not seen how the Committee arrived at its findings.The learned counsel argued too, that, these proceedings would have shown whether or not the defendant gave the claimant fair hearing by allowing him opportunity to cross-examine his accuser: Mr. Emeka Nwankwo. The learned counsel submitted too, that failure to call members of the Committee as witnesses is fatal to the report. The learned counsel submitted that, all these anomalies made the report [Exhibit DWL] a self-serving document concocted for this case,which the Court is precluded from relying upon.

The learned counsel replied to the issue raised in paragraph 4: 16 of the defendant’s address that, no document was submitted to show that Chief Tony Chukwu ever won any contract with NDDC, on which basis, the accounts were regarded as phony, and the claimant dismissed. The learned counsel submitted that, the claimant debunked this by deposing in paragraph 3 of his Amended Additional on Oath that Chief Tony Chukwu appeared before the Committee and presented his contract papers to them; and that, this piece of evidence was not challenged under cross-examination. The learned counsel submitted that, it was not even the duty of the claimant as Zonal Manager to ensure that contract papers were attached to a customer’saccount. The learned counsel submitted that issues connected to account opening and money transfers are schedules at the confines of branch managers and operation managers, which evidence as given by the claimant is on record. The learned counsel submitted that, the failure of the defendant to tender the response of Chief Tony Chukwu to the allegation of absence of contract papers and her failure too, to inquire from the NDDC the legitimacy of money inflow into Chief Tony Chukwu’s account showed that the defendant did not discharge the burden of proof placed on her to justify the reasons given for the claimant’s dismissal. On this, the learned counsel cited Akanbi v. Alao (1989) 5 SC 1. Referring to Adekunle & Anor. v. Ajayi (Nig.) Ltd (2013) LPELR-21959 (CA), the learned counsel submitted that, it is not the duty of the Court to speculate on facts not placed before it. The learned counsel submitted further that facts pleaded by a party must be supported by evidence except admitted by the other side, and that the defendant failed in this respect.

The learned counsel replied to the issue of counter cheques raised in paragraph 4:18 of the defendant’s address that, the alleged counter cheques were not tendered and as such,the amounts involved in the transactions were not before the Court by way of the instruments of withdrawal or the statements of accounts.The learned counsel also argued that, the account opening documents were not before the Court. The learned counsel submitted that what the learned duo to the defendant is inviting the Court to do is to engage in conjecture and speculation to determine this case.The learned counsel replied to the issue of non-entitlement of the claimant to terminal benefits raised in paragraph 4:22-23 of the defendant’s address, and submitted that, considering that the claimant spent about 16 years in the Bank he is entitled to terminal benefits.

The learned counsel moved to the issue of Iwueke v. IBC (2005) 17 NWLR (955) 447 cited by the defendant’s counsel to buttress the need to show that before libel could be established, the claimant must call a third party to testifythat his opinion of the claimant was negatively affected by the publication. In reaction, the learned counsel argued that,because the dismissal of the claimant was on allegation of crime [money laundry] Iwueke v. IBC was not applicable. The learned counsel cited Gidendo v. Odo-Ado (1962) NNLR 122; AIB Ltd & Ors. v. Asaolu (2005) All FWLR (Pt. 270); and Oduwale v. West [supra]. The learned counsel also submitted that the aspect of Iwueke v. IBC quoted by the defendant’s counsel was not the ratio because the judgment in Iwueke v. IBC was entered in default of appearance.The learned counsel also submitted that, the prayer that the Exhibit K [the publication] be expunged from the record is a non-starter in view of the fact that, notice to produce it was given in paragraph 32 of the Amended Statement of Fact, and it was tendered in failure to produce, the defendant cannot complain against its admissibility by virtue of section 91 of he Evidence Act. The learned counsel submitted further that the failure of the defendant to tender any document showing the claimant’s schedule of duty is fatal; and that, since all the allegations occurred in just branch, the claimant who operated as at Zonal Legal level could not be expected to be fixated on just the activities of just one branch of the many branches in the East of Nigeria, which branches individually has managers and staff trained to detect and reject unlawful instructions.

The learned counsel reacted to the issue of non-denial of approval of the over draft raised against the claimant as canvassed in paragraph 4:41 of the defendant’s address by arguing that this is misconceived as paragraph 8 of the claimant’s Reply was a complete denial of this. The learned counsel further submitted that, the defendant did not prove that the over draft facility in issue was improperly granted or that it was forbidden to grant over draft; and that, the burden to prove the allegation is on the defendant and not the claimant. The learned counsel referred to section 131-133 of the Evidence Act. The learned counsel submitted that, contrary to the arguments of the learned counsel to the defendant in paragraph 4:43-44 of the defendant’s address, the defendant did not have the vires to dictate who the claimant should sue, since the right to institute legal action is constitutionally reposed at the discretion of the person suing. The learned counsel to the claimant finally brought the address to an end by urging the Court to grant the claimant’s reliefs and dismiss the counterclaim.

  1. Reply on Points of Law

CHIEF F.O. FAGBOHUNGBE and DAPO ODUWOLE franked the “Defendant’s Reply on Point of Law to the Claimant’s Written Address” dated and filed 18th October 2018. The learned counsel replied on the point that the burden of proof lies on an employer who gives a reason for termination to justify the reason. The learned duo submitted that the authority of Institute of Health Ahmadu Bello University v. Anyi cited by the counsel to the claimant is irrelevant as the facts of the case are different from this one because in that case, the Supreme Court held that since the Panel set up exonerated the plaintiff of criminal allegation, before the plaintiff could be dismissed, he ought to have been tried and convicted to be dismissed on such allegations. On this basis, the learned counsel submitted that the ratio therein is not applicable in the instant case. The learned duo argued that, section 131 of the Evidence Act placed the burden of proof on the claimant and cited Amuebie v. British International School (2014) 48 NLLR 293 at 302, paras. D-E and Sidmach Technologies Nigeria Ltd v. Onuorah (2014) 46 NLLR 258 at 297, paras. C-I to buttress the submission.

The learned duo argued further that, where a claimant seeks declaratory reliefs, he cannot rely on the admission of the defendant nor shift the burden of proof on the defendant, but must proof his case, and submitted that, the claimant failed to prove that the reasons for his dismissal were not contained in the defendant’s Employees Handbook. The case of Enoch v. Fab-Rem Project International (2014) 49 NLLR 375 at 403, paras. A-C was relied upon. The duo argued further that since it is the claimant that asserts that his dismissal was unjustifiable, it was the claimant’s duty to prove this by tendering the Employees Handbook. The learned duo replied on the point that, the section of the statute infringed,on allegation of withdrawal of huge cash, was not cited, by submitting that the law is that only facts are pleaded and not law. On this, Order 30, Rule 3(1) of the NICN Rules was cited. The learned counsel thereafter replied on the point that,allegation of crime must be proved beyond reasonable doubt by submitting that the defendant did not make allegation of crime against the claimant, besides the fact that, Agi v. PDP cited by the counsel to the claimant, was irrelevant since it was on election petition which is sui generis. The learned counsel cited Osaye v. Honda Place Limited (2015) 53 NLLR 52 at 108D-109A to the effect that, the mere employment of strong language in describing the conduct of a dismissed staff does not make that conduct a crime.The learned counsel also quoted Osaye v. Honda Place Limited [supra] to the effect that, the law has changed on the need to secure conviction against an employee where allegation of crime is made before dismissing the employee on the allegation, and that, the current law is that, such an employee must be confronted with the allegation and afforded fair hearing before being dismissed, and that, once these are done, the dismissal stands. The learned counsel also cited Edward Chukwuemeka v. Enterprise Bank [Unreported decision of this Court in Suit No. NICN/LA/181/2011, judgment delivered May 13 2014] and other authorities on the same issue.

The learned counsel moved to the issue non-affixation of lawyer’s seal to the Bill of Cost and submitted that, claimant having failed to object to the Bill when it was tendered, the claimant has waived the right to complain against the admissibility since failure to affix lawyer’s seal is a mere irregularity. On this, the learned counsel cited Chuku v. Kalio (2018) LPELR-44867 (CA) [no paragraph or page given] and Etim v. Ekpe & Anor (1993) 3 SC 12 at 36-38.The learned counsel argued that, in the event that the Court is of the view that it was necessary to affix the seal, leave should be granted to enable the learned counsel to affix it. Thereafter, the learned counsel went to the issue that the Bill is an offer, which cannot be enforced in the absence of acceptance. The learned duo submitted that there is no dispute that there was a contract of service between the defendant and the learned SAN, who franked the Bill and that, the Bill was prepared pursuant to section 16(2) of the Legal Practitioners Act [LPA]. The learned counsel submitted that, as a result, the Bill is not an offer but actually for recovery of charges, as stated in section 16 of the LPA. The learned counsel also cited Order 55 of the rules of this Court to buttress their arguments.

The duo replied the contention that the posting of the dismissal of the claimant on the intranet of the defendant is defamatory and entitled the claimant to damages by submitting that, the since the dismissal is justifiable, the posting on the intranet is not defamatory and as such, the claimant is not entitled to damages. The learned counsel also urged the Court to hold that the publication, as exhibited, does not have probative value because, it was not printed from the computer, which fact was admitted by the claimant under cross-examination and thus, illegally obtained. On the issue of documentary hearsay, the learned counsel submitted that, the case of Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298) 24 cited is irrelevant because the facts relate to election petition which is sui generis and because the document tendered in the case was INEC Form CF001 whereas, in the instant case, the documents in issue were documents addressed to the defendant by the said Emeka Daniel Nwankwo. The learned counsel submitted further that, by way of analogy, if the argument of the claimant that answers to the queries by Emeka Daniel Nwankwo are documentary evidence is correct then, it followed that the letter of appointment, letter of dismissal etc. tendered by the claimant are also documentary hearsay.The learned counsel ended the reply on points of law and urged the Court, once more, to find in its favour.

As it is now, I have carefully summarised the written addresses of the parties. The next duty placed on me, is to resolve the issues raised, apply the law to the facts and come up with a reasoned decision, one way or the other. First, in doing this, I wish to state that I have carefully studied all the processes and documents in the case file. I have equally carefully perused the exhibits and appreciated the evidence led by parties and their cross-examinations. I have also researched the important authorities cited. I have therefore fully understood the case and digested all the relevant facts and authorities. To this sacred duty of reaching a reasoned decision, I now turn.

DECISION OF THE COURT

In doing justice under this part, I adopt the issues formulated by the claimant’s counsel because they are concise and hit the nail on the head.They are:

1)    Whether the dismissal of the claimant by the defendant is not wrongful, and unjustifiable. [sic]

2)    Whether the publication of the claimant’s wrongful dismissal on the defendant’s intranet was not libelous. [sic]

3)    Whether the defendant proved its counter-Claim. [sic]

4)    Whether the claimant is not entitled to the reliefs sought.

 

I shall therefore take them seriatim.

 

 

 

ISSUE 1:

Whether the dismissal of the claimant by the defendant is not wrongful, and unjustifiable?

The arguments under this issue revolved around who shoulders the burden of proof where an employer gives reasonsfor terminating an employment and the employee challenges this reason. The claimant is of the view that the defendant has the burden while the defendant is of the view that the burden is on the claimant, because the claimant’s action is declarative and that, even the reason for the dismissal has been justified. It was also argued that because the allegations herein amounted to crime, the proof is beyond reasonable doubt and the burden is on the defendant while the defendant lacked the vires to base a dismissal on it without charging the claimant to court. The defendant countered this by saying that the allegations were not criminal in nature simply because strong words were employed and that, as such, the defendant lawfully dismissed the claimant.

The first thing to do here is to ascertain who has the burden of proof before going to examine whether the reasons had been justified or not or whether criminal allegations were involved or not. I think the classical statement of the law on who shoulders the burden of proof where a defendant offers reasons for dismissal was stated in SPDC V.OLAREWAJU [2008] LPELR – 3046 [SC], where the Supreme Court opined that:

“The guiding principle which has been articulated and applied in many cases including Olatunbosun V. N.I.S.E.R. Council [1988] 1 NSCC 1025; [1988] 3 NWLR [Pt. 80] 25, is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court”. [See p. 19 paras E – G]

The argument that the Institute of Health Ahmadu Bello University v. Anyipcited by the claimant is not relevant is misconceived. The ratio is applicable to this case. It is not all facts of a case that must be on all fourswith another before a ratio is applicable. Once the relevant facts on the issue at stake are similar, a ratio applies. The issue at stake in Institute of Health Ahmadu Bello University v. Anyipand relevant to this case, is the issue of who shoulders the burden of proof when an employer, even though, not obliged to give reasons for termination, nevertheless elects to state reasons for termination. The Supreme Court clearly held therein [at p. 21, paras. A-C]that, it is the defendant that shoulders the burden of justifying the reason offered. If any doubt exists, this is resolved against the defendant on this point in SPDC V. Olarewaju cited and quoted by me above.

Thus, it is the duty of the defendant to justify the reason offered for dismissing and not for the claimant to disprove it. It is therefor after such justification that the claimant has a duty to rebuff it by giving evidence in contradiction. At the initial stage, all that the claimant needs do is to reject the reason and assert its opposite. The burden lies on the defendant to proof the truth of the reason. This must be so, because it is the defendant, who had the right to fire without offering reason, that nevertheless elects to offer a reason, thereby asserting a reason for termination, and by virtue of section 133 of the Evidence Act, obliged to proof this reason to the satisfaction of the court. So, the case of Enoch v. Fab-Rem Project International cited by the defendant, on the general principle that, in a declarative action, the claimant has the duty to prove, is inapplicable to this case where the defendant is obliged by law to prove a specific fact.It is not even correct to say that the Evidence Act placed burden of proof on the claimants. All that sections 131-133 or any other section of the Evidence Act say, is that, the person who would lose if no evidence is adduced on a fact in issue is the person to shoulder the burden of proof. All the claimant need prove, in this situation, by law, is that his appointment was determined for a particular reason, which is being challenged. This the claimant had done by tendering his letter of dismissal, which contained the reasons for his dismissal.The claimant thus, has satisfied the law by tendering evidence of the facts that his appointmentwas terminated and for specific reasons through the tendering of the letter of termination. The justifications of these reasons go to the defendants who assert them: period!He who asserts must prove. This reasoning is encapsulated in Abdulganiyu v. Adekeye & Anor (2012) LPELR-9250 (CA) 34-35, paras. C-A:

“…it is the law that he asserts the affirmative has the duty to prove same. There is no duty generally on a party to prove the negative. In the instant case, it is the appellant who asserted the affirmative or positive and therefore has the burden of proving same, particularly as the respondent denied what was pleaded…This is rooted in the settled position of our law that the burden of proof in a suit or proceedings lies on the party who will fail, if no evidence is adduced on either side…”

In the instant case, it is undoubtedly the defendant who asserted the affirmative while the claimant refuted. Hence, the defendant had the duty to prove the affirmative or positive asserted and it is she that would fail if no evidence were led by either side. The fact that the action commenced by the claimant is declaratory does not shift this burden of proof. It is true that a claimant must prove to succeed in declaratory action, but this simply means such claimant must prove those issues on which the law places the burden of proof on him and not otherwise. That is to say, he must prove that which he asserted, and not that asserted by the other side. In any case, even if this is not so, it must still be held that,the rule that the defendant must justify the reasons given for dismissal, constitutes an exception to the rule that the burden of proof is on the claimant. It thusmakes a special instance where the defendant must prove a particular fact because, in all the cases, the Supreme Court did not say the burden would shift when it concerns an action that is declaratory in nature.

It follows that, it is only in those cases where the defendant did not offer a reason for the termination or dismissal that the burden of proving all ingredients of wrongful dismissal would be on the claimant throughout, because in that situation, the defendant did not assert any reason for the dismissal so, the claimant would be burdened to show how the dismissal was wrongful. But where the defendant has offered a reason for the dismissal, whether or not the dismissal is wrongful now rests squarely on the reason offered by the defendant. Then naturally, the defendant, who asserted this reason, is logically expected to justify it because it is she who fathomed the reason and that must have at her bosom, the justification; and the law rightly placed on her, the burden to justify such reason simply because it is the defendant that has asserted a reason, which she must justify.

Let me say that, it is not even the law that a claimant must ipso facto tender his employment handbook/letter of employment whenever he sues for termination/dismissal of appointment. Whether or not he would need to tender it would depend on the cause of action and whether it could be sustained without tendering the handbook/letter of appointment – seeNigerian Institute of International Affairs V. Ayanfalu [2006] LPELR – 5960 (CA) 28 – 29, PARAS. G – G and Okoebor V. Police Council [2003] LPELR – 2458 (SC)37, paras. A-B it was held that it is not in all cases that the plaintiff need to tender letter of appointment to succeed in termination of appointment and that, it depends on the issue at hand.That’s whether s/he can prove the case without it.In any case, the burden of proof is by law, placed on the defendant to justify the reasons offered for the dismissal; and to do this, she must tender the necessary documents. The claimant herein, based his case on wrongful termination due to unjustified reasons and libel, and the burden of justification of these reasons offered by the defendant, is by law, placed on the defendant. It is therefore axiomatic that the defendant, who has the burden of proof in this respect, must tender the necessary documents to prove her case: that is, to justify the reasons offered for removal. It is only after the defendant discharges this burden that it shifts to the claimant; and only then, would the need arise to tender or refer to the handbook, the implication of the burden on the defendant in this respect, being that, if no evidence is led by both sides on the issue of justification of the reasons for the dismissal, the person who has the burden of proof, in this case, the defendant, must lose.

In effect, the person who asserts the affirmative must lose if no evidence is led on both sides. Therefore, if the handbook is necessary to justify the reasons offered for the dismissal, and both sides do not tender it, the defendant, who needs it to justify the reasons for the dismissal must fail in that aspect. The claimant has tendered the letter of his appointment; the letter of dismissal together with the publication he claimed was libelous. That is all he needs to establish the issue of dismissal on unjustified grounds. He doesn’t need the handbook. All he needs show is that,the defendant employed him, his appointment was terminated, and reasons were offered for the termination by the defendant, and the evidence of the reasons offered, and that, he is contesting these reasons. All these he has done. Then, the defendant must justify the reasons offered by bringing in the necessary evidence that would enable her do this. I therefore hold that the burden of justifying the reasons offered for the dismissal of the claimant herein rests squarely with the defendant.

Having held that the burden rests on the defendant to justify the reasons offered for the dismissal of the claimant, it is now left to see whether the defendant in deed, justified these reasons to the satisfaction of the Court. It should be noted that, there are three parts to the justification of the reasons given for the dismissal. The first is that, the claimant denied the allegations in their entirety, the second is that, the claimant said even if these allegations were true, no rule of the bank [the defendant]or law were breached, and the third is that, because the allegations were criminal in nature, the defendant had additional burden of proof beyond reasonable doubt, which she failed to discharge.

On the denial of the truth of the allegations in their entirety, what is the nature of evidence that would be adduced to justify these allegations? Amongst several documentary exhibits tendered by the defendant, Exhibits DWJ and K are very germane. I shall therefore reproduce the relevant contents of the two exhibits in full. Exhibit DWJ dated January 15, 2016, is report of the Internal Control & Audit Department to the Executive Management on Emeka Daniel Nwankwo – SM/Branch Head, Owerri 3 Branch. In Exhibit DWJ, at the part marked “SUMMARY OF ISSUES”, the following appears:

  1. “Actinum Limited, Global Construction & Logistics Limited, NPG Nigeria Limited, Skyworth West Africa Limited and Rocanni Ventures were all opened with incomplete documentation – Search Report, References, PUR, CAC 2.1, Visitation report and TIN are all outstanding;
  2. All the accounts in (1) above belonged to the same promoter – Chief Tony Chukwu and one Getrude Eke is the sole signatory to all the accounts;
  3. Inflow into the accounts are majorly from Niger Delta Development Commission accounts domiciled in First Bank of Nigeria Limited, Keystone Bank Plc and Ecobank Nigeria Plc;
  4. All inflows into the accounts are withdrawn via counter cheques usually in favour of Getrude Eke in tranches of N250Million and N500Million at Owerri 3 Branch;
  5. The total credit and debit turnover through the accounts between January 2015 and December 2015 was N28,118,856,600.59;
  6. Most movement of funds (in and out) of the accounts are usually described as “Transfers”;
  7. A review of the withdrawal tickets revealed that they are signed by Emeka Daniel Nwankwo but he claimed that the signatory usually comes to the Bank to sign the withdrawal tickets and leave without collecting the cash.
  8. Account number 1013312432/Consumer Enterprisees belong to Emeka and the signature on the account bears semblance with that of account number 1013888672/Nezah Integrated Services. The picture on the incorporation documents of Nezah Integrated Services is that of Uzomah Nwankwo (Emeka’s wife), though the account was opened with a pseudo name Nnnenne Azih. Nezah Integrated Services was closed on 07/12/2015 and Emeka alleged that the account holder has relocated to United States of America;
  9. The total credit and debit turnover on Nezah Integrated Services which was opened on 11/06/2014 was N5,408,133,498.56Cr and N5,408,032,926.75Dr respectively. Emeka admitted that Tony Chukwu is the beneficiary owner of the inflows into the accounts;
  10. Emeka claimed that the accounts were introduced by his Group Zonal Head – Austin Njoko/GM and that the ZH authorised all the transactions in the accounts and that most of the time the Zonal Head joins the beneficiary owner’s driver to deliver the cash withdrawn from the accounts;
  11. Henry Obichukwu Nwankwo (Emeka’s younger brother) maintains four (4) accounts with the Bank with four different signatures. Emeka claim that the account holder is music producer but there are huge transfers between the account holder and Nezah Integrated Services and upon inquiry, Emeka claimed that his younger brother bought a property from Nezah Integrated Services”.

Exhibit DWK, is still on the same Emeka Daniel Nwankwo with the same subject matter but from the Disciplinary Committee and directed to the GM/Group Head, Human Resources, contains the following on the part marked Daniel Emeka Nwankwo:

    “Daniel Emeka Nwankwo informed the Committee that he is the Branch Head of Owerri 3 Branch;

    When the Committee asked Emeka to explain his involvement in conflict of interest and operation of proxy accounts, he stated that the five accounts belong to Chief Tony Chukwu, a well-known business man in Owerri;

    He claimed that the customer nominated his sister – Gertrude as the sole signatory to the accounts;

    Emeka averred that the accounts were introduced by the GM/Group Zonal Head, Imo & Abia;

    The Committee noted that about N28.1Billion passed through the account between January 2015 and December 2015 especially via cash withdrawals and upon enquiry, Emeka stated that most of the payments from the accounts were cash withdrawals and the signatory mostly signs off the instruments and leaves the branch, while the brother and driver of Chief Tony Chukwu comes to the Branch to pick the cash, sometimes accompanied by the Group Zonal Head;

    Emeka explained that most of the outstanding documents on the accounts have been regularized. The Committee noted, however that this is not true as the list of accounts with outstanding documentations was presented to him;

    The Committee observed that two accounts belonging to Emeka Nwankwo also benefited from the proxy account and when Emeka was presented with this fact, he admitted that Consumart Enterprises accounts belonged to him and that he nominated Nezah Integrated Services to receive funds belonging to Chief Tony Chukwu with the consent of his GM/Group Zonal Head, Imo & Abia. He also admitted using Splashbeats Enterprises accounts owned by his brother – Henry O. Nwankwo as well as his brother’s personal account, for this purpose;

    The Committee noted that Nezah Integrated Services which was used to receive about N2.1Billion belonging to Chief Tony Chukwu was closed in December 2015and upon interrogation, Emeka claimed that the account holder has relocated to United States of America hence the account was closed;

    A review of the account opening package however revealed that the signatory is a little girl contrary to Emeka’s claim that the account holder is a practising legal practitioner;

    The Committee noted that Emeka opened and operated the proxy accounts through which enormous suspicious cash transactions passed and benefited personably through his two accounts and that of his brother and that he granted an unauthorized facility to Actinum Nigeria Limited which account is still in overdrawn position;

    The Committee concluded that Emeka Nwankwo’s conduct was extremely unethical and unprofessional as it has potential adverse consequences.

 

 

RECOMMENDATION

The Committee agreed that the staff – Emeka Daniel Nwankwo should be dismissed from the employment of the Bank for opening/operating proxy accounts with incomplete account opening documentation which were used for suspicious transactions with potential adverse consequences for the Bank and personally benefitting from same and for unethical/unprofessional conducts”.

          Exhibit G [photocopy tendered also by the defendant and marked Exhibit DWB] is the reply of the claimant to query issued him vide Exhibit F from the GM/Chief Inspector. In Exhibit F dated Tuesday, January 19, 2016 and titled “Operation of Proxy Accounts, Money Laundering and Conflict of Interest”, the claimant was accused of operation of proxy accounts, money laundering and conflict of interests by operating 7 listed accounts with incomplete documentation for a long time contrary to policies and procedures of the Bank. In the answer of the claimant, vide Exhibit G dated Wednesday, 20 January 2016, the gravamen was that the accounts and funds that passed through them belonged, to the best of his knowledge, to Chief Tony Chukwu, a major NDDC contractor and that, from the explanation of Chief Tony Chukwu, he used the various companies to bid for contracts in NDDC because of competitiveness. The claimant admitted knowing Chief Tony Chukwu and related with him as key customer of the bank, but that he was not the account officer of the said Chief Tony Chukwu. The claimant also stated that the huge cash withdrawals were unexplained by customer. He admitted that, the continued use of counter cheques was an operational lapse, which he tried hard to address at the time but that the accounts were fully regularized while they were also reported as politically exposed. He also stated that he did not authorise the opening and operation of Consumart Enterpises and Nezah Integrated Services and that, neither did he approve the decision to close Nezah Intergrated Serviceson 07/12/2015.

          After this, Exhibit DWC titled “Report on Breach of Policies and Procedures, Operation of Proxy Accounts and other Infractions by Augustine Chikaodi Njoko – GM/Group Zonal Head, Imo/Aba/Cross River Zone” dated Saturday, January 23, 2016 from the Executive Disciplinary Committee was transmitted to the GM/Group Head, Human Resources on the claimant. It claimed the claimant appeared before the Bank’s Executive Disciplinary Committee on 23rd January 2016. The highlights of the report are that, the claimant admitted accompanying the delivery of the cash withdrawalsand noted that, the claimant lied when he said the account documentation had been regularized because the same claimant had earlier promised, when the list of accounts with incomplete documentation was presented to him earlier, to ensure they were fully regularized.

The report also noted the claimant consented to the opening of two accounts belonging to Emeka Nwankwo which benefited from the proxy accounts without the knowledge of Chief Tony Chukwu thus committing deceit and cover up and that Consumart Enterprises and Nezah Integrated Services belonged to Emeka Nwankwo but that the claimant said he did not authorise the opening and operation of the two accounts. The Committee noted in the report that the present stance of the claimant was contradictory to the position of Emeka Nwankwo presented to the Executive Management in the claimant’s presence without objections. The Committee noted in this report that the claimant introduced and authorised the opening and operation of proxy accounts through which large suspicious cash transactions passed thereby suspecting that the claimant benefited personally since he was personally involved in the cash delivery. The Committee thereafter concluded that the claimant breached laid down policies and procedures of the Bank, colluded with and aided customers to open and operate proxy accounts and intentionally concealed the suspicious transactions. These conducts the Committee termed extremely unethical and unprofessional as it had the potential adverse consequences. The Committee therefore recommended the dismissal of the claimant.

Exhibit J dated Monday, 25 January 2016 is another query from the Executive Management to Austin Njoko [the claimant] titled “Re: Unethical and Unprofessional Conduct”. In it, the same accusations, as in the previous queries, were raised except that the claimant was frontally accused that he authorized withdrawals from the accounts largely by cash and with counter cheques, aided the use of Nezah Enterprises as a proxy account, though totally unconnected with Chief Tony Chukwu, to channel funds for Chief Tony Chukwu, which it said amounted to cover up. Another addition is that, the list of banks was increased from 7 to 12. In this too, the accusation on overdraft on Actinum Limited was omitted. The claimant answered this query vide Exhibit H titled “Unethical and Unprofessional Conduct” and dated Monday 25 January 2016. In it, the claimant listed 9 accounts and stated that though, he supported the affected branches in marketing the customer in his capacity as Zonal Head but was not involved in the account opening details as that was the role of the affected branch heads and that he was not aware of any outstanding documentation on these accounts. The claimant also stated categorically that he did not authorise or influence the use of Nezah Enterprises to receive payments for Chief Tony Chukwu as he did not know the owner of the account nor the transactions in the accounts. The claimant went to another account Reudo Nig. Ltd, which belonged to Chief Tony Chukwu and stated that, it was opened long before he assumed duty in the Zone. He maintained that the inflows to these accounts were to the best of his knowledge payments for NDDC contracts.

The claimant now added the explanation that the large cash withdrawals were explained by Chief Tony Chukwu to the EXCO on the previous Saturday penultimate to Monday 25th January 2016 that they were necessitated because, cash payments had to be made at the sites of the contracts in the swamp of the Niger Delta where there were no banks or ATMs. He reiterated that the use of counter cheques was an operational lapse, which he tried hard to address at the time. He explained the accusation of absenting from work that, he had sought permission from the signer of the query to be allowed to travel back to Owerri to collect his work clothes, after the meeting on Saturday, which permission was granted and that, his inability to turn up early on Monday was due to flight delay.

Subsequent to the report of the Committee and these queries, the claimant was dismissed vide Exhibit E dated March 18, 2016 with immediate effect for:

  • “The fraudulent opening and operation of proxy accounts on behalf of customers with the intent to aid and abet money laundering activities.
  • Collusion with customers for money laundering activities through the operation of proxy accounts with enormous cash transactions.
  • Unethical and unprofessional practices in the operation of various accounts”.

From the scenario painted above, it would be clear that Emeka Daniel Nwnakwo was the person directly involved in all the transactions in issue and that, the result of the defendants investigations indicted him at all material points. He directly perpetrated all the allegations. It is also clear that the claimant denied all the essential aspects of the queries issued to him and that the results of investigations conducted by the defendant did not yield any negative results against the claimant by finding a single shred of evidence that directly connect him with the allegations, as were those against Emeka Daniel Nwankwo. It is also clear that, the major accusations against the claimant were lifted from the testimonies of Emeka Daniel Nwankwo. Even when it was said that the claimant demurred and kept quiet in the presence of Emeka Nwankwo but subsequently reneged, it is not tendered before the Court the proceedings from which this was unearthed and the claimant had challenged this as untrue. The claimant also emphatically stated that it was not part of his schedules to superintend over the details of account openings but that this was squarely the duty of the branch manager and that, neither was he aware of any shortfall in documentation. The claimant pushed the issue of huge cash withdrawals back to the defendant whom he claimed, the owner of these accounts explained to the EXCO that these were necessitated by the swampy areas where the contracts were to be executed, which lacked banking facilities and payments had to be made therefore by cash. These, the defendant did not deny in the Committee report or anywhere. Although, the claimant admitted that the ‘continued’withdrawals by counter cheques was an operational lapse, which he tried hard to address at the time. Edging the cash withdrawals by the word ‘continued’, suggests that the use of counter cheques was not ordinarily forbidden, but used sparingly, otherwise, it would not have existed in banking practice.

Now, in a situation like this, what nature of evidence would the defendant need to adduce to justify the allegations for which the appointment of the claimant was terminated? It is surprising that the defendant who continually harped on breach of policies and laid down procedures of the Bank failed to tender the book containing these policies and procedures. It is also surprising that the defendant in all their queries, investigations and reports failed to point to the particular provisions of their policies and laid down procedures breached. In this wise, even though, the claimant admitted thatthe continued cash withdrawals vide counter cheques was too frequent but that, he tried to prevent this and reported the accounts as politically exposed. Evidence is on record, during cross-examination of the DW1, that it was admitted that, there is a document known as counter cheque by which withdrawals could be made by corporate accounts and current accounts owners who did not come to bank with their cheques but that, frequency of use is escalated for due diligence purpose.

Thus, it is clear that, it is not an offence to use counter cheque but that it may only become improper when it is frequently used. The number of times that would elevate the practice to an offence is not stated. What the punishment for the offence isnot stated.And it is evident that huge cash withdrawals were not banned at the time in issue. Yet, the defendant who claimed that the claimant breached laid down policies and procedures did not tender the document containing these so-called laid-down policies and procedures! Even if this were tendered, it would still have been fatal, if the defendant did not point to the specific provisions of the policies and procedures breached or the ethical rules breached and the sanction thereof, since this would have amounted to dumping the document on the Court. This becomes more poignant when it is realized that DW1 admitted under cross-examination that policies and procedures of the Bank were documented but that it was not amongst the documents tendered. Since the burden of justifying the reasons given for the dismissal lies with the defendant, it is she who ought to tender the documents to prove that the claimant actually committed an offence known to the rules and that, appropriate punishment was meted out to the claimant, if indeed, the claimant actually committed any offence. Failure in this regard is fatal to the defendant in justifying the reasons for the dismissal. It is against the yardstick of the bank’s handbook that the reasons offered for the dismissal must be tested to see if they are justifiable or not.

On the issue of criminal allegations, I want to say that in the letter of dismissal it was clearly stated that the claimant colluded with customers for money laundering activities through the operation of proxy accounts with enormous cash transactions. Money laundering is, no doubt, a criminal offence in Nigeria. To show that the defendant meant business on this allegation to be a crime, the defendant, vide Exhibit L, reported the claimant to the EFCC for investigation and prosecution. So, the argument of counsel to the defendant that the mere use of strong language does not turn misconduct to crime is of no avail. The ingredients of the allegations, if proved, could amount to the criminal offence of money laundering. But as it is, no proof is shown that the claimant committed any of the allegations raised against him. The claimant who was alleged to be in the habit of escorting cash to the house of his alleged collaborator- Chief Tony Chukwu, which allegation he denied, could not be shown otherwise to have committed the unethical behavour, than through the confessions of Emeka Daniel Nwankwo, which implicated the claimant.

DW1 who under cross-examination stated that the claimant used to escort monies to the collaborators house was not an eyewitness, and the security people, whom he said were witnesses, none was called to testify. It is also surprising that the defendant did not deem it fit to tender the CCTV footage of the claimant escorting the vehicle for delivery of the alleged monies to the owner and neither was the evidence of actual withdrawal tendered. And yet, all these are documentary evidence.  It is clear that, the evidence on which the accusation was based was that of Emeka Daniel Nwankwo, a co-accused.The law is trite that evidence of one accused person cannot be evidence against another co-accused accused – see Yongo & Anor v. COP (1992) LPELR-3528 (SC) 31-32, paras. F-A and Akinlolu v. The State (2013) LPELR-21876 (CA) 69, paras. E-F. Thus, I find that the justification for the reasons given for the dismissal and the criminal allegations were not proved against the claimant.

Having come to this conclusion, issue 1 is resolved against the defendant and in favour of the claimant. I therefore hold that the dismissal of the claimant is wrongful and unjustifiable. I now move to issue 2.

 

ISSUE 2:

Whether the Publication of the Claimant’s Wrongful Dismissal on the Defendant’s Intranet was not libelous?

          The arguments and counterarguments here are centred really on whether the alleged libel is justifiable, whether there is publication to a third party to warrant damages, whether, without proof of lowering the image of the claimant in the estimation of people,the claimant is entitled to damagesand, whether the evidence tendered in proof of the publication of the alleged libel in the intranet of the defendant is admissible in law.

I take the issue of inadmissibility of Exhibit K, tendered in proof of publication of the libel first, because it is threshold issue. The present objection against it is that, it was not downloaded from the computer but photographed from the computer and as such, inadmissible. The claimant’s counsel on the other hand argued that, the defendant could not be heard to complain against the exhibit, being that, notice to produce was given and not complied with. I have observed that this document [Exhibit K] was tendered without objection. I also observed that truly, notice to produce was given. In Venn v. Access Bank Plc & Ors (2014) LPELR-24077 (CA) 44-45, PARAS. A-D, the Court of Appeal held that, the effect of failure to comply with notice to produce is, to afford the party who gave the notice to adduce any type of secondary evidence in his possession. There is no argument that the contents of Exhibit K are not the true and exactly the photocopy of the posting or publication in contention. In fact, the defendant, holding fast to the veracity of Exhibit K, had sought to justify the defamatory words in issue by admitting the truth of the contents – see A.C.B. Limited & Ors. v. Apugo (2001) LPELR-9 (SC) 18, paras. D-Ehence, this belated objection after the document had been admitted without objection, is abuse of the Court’s process. Besides, the law is trite that, where a document is not totally inadmissible in law and it is tendered without objection, such document is legally admitted and cognizable in law and the other party is estopped from challenging its admissibility thereafter by reason of waiver her right at the point she ought to have objected – see Jelili v. Adebomi &Ors. (2009) LPELR-4351 (CA) 28, Paras. E-F and Agagu v. Mimiko (2009) LPELR-21149 (CA) 81-83, Paras. F-C.Arising from the foregoing, the bleated objection lacks merits and is accordingly dismissed. I therefore hold that Exhibit K was validly admitted and the Court is bound to take cognizance of it in deciding the issue at hand.

On the issue of justification of the libel, it is logical that once I have found the reasons for the dismissal of the claimant unproved, it follows axiomatically that, these reasons, which were stated in the letter of dismissal and posted on the intranet of the defendant with the picture of the claimant embossed, are not justifiable. On the issue of publication, the defendant is of the view that the publication was not to a third party to sustain defamation because, it was done on the intranet of the defendant, for the staff alone in order to stave off the possibility of divulging trade secret to the dismissed staff. I think what is to be determined here really concerns whether all the staff of the defendant is to be regarded as one with the defendant. It is not in doubt that the parties to this case are the claimant: Austin Njoko and the Defendant: Zenith Bank. The question is, who amongst the staff of Zenith Bank [the defendant] constitutes/approximates to the defendant? Are all members of staff of Zenith Bank regarded as Zenith Bank? I found useful the clarification made on this issue in Standard Trust Bank Ltd v. International Nigeria Ltd & Anor (2006) LPELR-9848 (CA) 21, paras. A-E:

“The law ascribes to a limited liability company the possession of a brain and nerve centre, which controls what, it does. Since it cannot form an intention within its abstract body, to operate, it must act through its agents; its employees or servants, who are often regarded as the hands to do the work of the company these are not in law, regarded as representing the mind or will of the company. Another category of employees of the legal fiction is the managers and directors; the law ascribes the right to control the will and mind of the company to this category of higher employees; the state of their minds is treated by law as that of the limited liability company, a mere fiction…”

From the forgoing, I have no hesitation in agreeing with the counsel to the claimant that, communication of the reasons for the dismissal of the claimant to the entire staff is communication to third parties. As is evident in the above authority, it is the top management echelon of a corporate body, that is, the directorate/managerialstaff that constitutes the mind and brainof a corporate body and therefore, one with it. So, it is the directors and managers of the defendant that are approximate to the defendant. And if defamatory matters were communicated, as in this case, amongst them [directorate and managerial staff] against the claimant, it might be held that the communication is still between the claimant and the defendant and not, to a third party, and therefore could not ground an action in defamation. This is understandable, as those who constitute the brain and mind of a company, as indicated in the cited authority, are not just a single person,actually a category/groupof persons,within the echelon of the company. As such, they have to discuss and communicate amongst themselves before reaching a decision and after reaching a decision. Thus, it would have been impossible for them to function if the law had not given them the immunity in defamation.

All other categories of staff are mere servants and cannot therefore, be regardedas approximated to the company, so communication of defamatory matters by the directorate of a company against a member of staff to the entire staff would be defamatory, simply because the publication has gone beyond the group that approximate to the company to the ordinary group that are not regarded as the company. It would have been another thing, if the entire staff were communicated merely that the claimant was no longer a staff, without stating the reasons for this, if truly the intention of the defendant were to make the staff aware that, it should no longer relate with the claimant as a staff. But when she goes on to offer reasons for the cessation of membership of staff of the claimant and these reasonshave been found to be unjustifiable, the defendant must be held to have communicated defamatory matters to third parties. I therefore hold that the posting of the dismissal of the claimant in the intranet of the defendant with the reasons for the dismissal and with the picture of the claimant embossed, is communication to third parties, and therefore defamatory.

I now come to the last of the issues identified in relation to the arguments of parties on the defamatory publication: the issue of whether it is necessary to call witness before damages could be granted. Under this, the argument of the defendant is that, the claimant must call witness to show that his estimation was lowered as a result of the publication, in the eyes of reasonable men in the society. On the contrary, the claimant’s counsel is of the view that the defamation in issue, being libel, it was not necessary to call witness to prove entitlement to damages, and that, damages flows naturally and are grantable without proof. I think without wasting time, it is trite that libel is actionable per se without proof of damages – see Ishaku & Anor. v. Aina (2003) LPELR-7255 (CA) 41, paras. A-B. The crux now is whether the publication in issue is libel or slander, there being, a world of distinction between the consequences on damages.  The defamation or publication in issue was posted in the intranet of the defendant. Is this posting, libel or slander? The Supreme Court seemed to have answered this in Guardian Newspapers Ltd & Anor. v. Ajeh (2011) LPELR-1343 (SC) 36-37, paras. G-C, when it said:

“After all, libel is defined as a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material…”

In the above definition, I think, what matters is the nature and the mode of publication, whether it is transient, as in mere spoken words in oral communications not recorded or whether, such publication is contained in a any external retrieval system of any kind like television, internet/intranet that makes it permanent and retrievable at will at any point in time. The publication in in issue is both in writing and pasted in picture in the intranet of the defendant and retrievable at will by the entire members of staff of the defendant. So, the publication to the entire members of staff of the defendantconstitutes continually retrievable publication in permanent and non-transient form to third parties.It is clearly therefore libel and not slander, notwithstanding that it could be removed from circulation subsequently, which does not alter its non-transient nature, just like, a libelous book could be removed from circulation, which does not alter the permanent form of the book and the intention that, it be in existence for indefinite time and retrievable at will. The Supreme Court stated further in Guardian Newspapers Ltd & Anor. v. Ajeh [supra] 24, paras. D-F that:

“In libel cases, once the offensive article is found to be libelous of the plaintiff, damages follow and damages awarded is general damages. On the other hand where there is direct pecuniary benefit from the offensive publication punitive damages are awarded…”

In the instant case, there is no allegation that any pecuniary gains were made by the defendant in publishing the libel in issue. Therefore, the damages to be awarded must be general damages as against punitive damages. In all, the issue 2 is resolved against the defendant and in favour of the claimant. I therefore hold that the publication of thedismissal of the claimant and the reasons for dismissal on the defendant’s intranet is libelous and not mere slander; and I so hold.In the event, issue 2 is resolved in favour of the claimant and against the defendant. Consequently, I move to issue 3.

ISSUE 3:

Whether the Defendant Proved its Counter-Claim?

Under this issue, the items claimed in the counterclaim, which runs from paragraph 41-51 of the Statement of Defence/Counterclaim are: N200milion, as cost of hiring an SAN to prosecute this case, overdraft of N1,110,000, which the claimant/defendant to counterclaim allegedly approved and which hasremained unpaid, liquidation of fixed deposit before the maturity and payment of interest in full thereof, operation of account without full documentation, which exposed the defendant/counterclaimant to sanction and fine. The counsel to the claimant/defendant to counterclaim had submitted that these heads of claims were not proved and could not therefore be granted. Specifically with regard to cost of N200millio, the counsel to the claimant/defendant to counterclaim submitted that, this cost could not be granted under the extant legal regime in Nigeria, because counsel fee is not grantable in law and that, it was even not proved,and that the Bill of Cost tendered, is not even admissible in evidence, because the lawyer who franked it did not affix his stamp/seal as required by law. The counsel to the defendant/counterclaimant, in opposition, argued that, the non-affixation of seal and stamp, being mere irregularity, which was not objected at the point of tendering the document, the other side is estopped from challenging its admissibility. The learned counsel also submitted that, the non-affixation of seal could be remedied by affixing it with leave of court.

First of all, let me agree straightaway with the counsel to the claimant/defendant-to-counterclaim that, with regard to the issue of liquidation of fixed deposit, I cannot see any evidence led on it nor any relief related to it. It is therefore deemed abandoned, and I so hold. I move to the issue of fines/sanctions allegedly incurred by the alleged actions/inactions of the claimant/defendant-to-counterclaim and for which relief vi is claimed by the defendant/counterclaimant. I observed too, that I couldn’t find any evidence led in proof of the so-called sanctions/fines. The claim for cost of sanctions paid, is one in the neighborhood of special damages that must be proved to the hilt, by leading evidence to show the fines incurred, the means by which the regulatory authorities communicated these fines to the defendant/counterclaimant, the means by which the fines were paid by the defendant/counterclaimant. I cannot find any. So, relief vi. of the defendant/counterclaimant fails.I now move to the issue of N200million cost of litigation.

I take the issue of admissibility of the Bill of Costs [Exhibit DWN] first, being a threshold one. In this, I share the opinion of the learned counsel to the defendant/counterclaimant that, the counsel to the claimant/defendant-to-counterclaim is precluded from challenging the admissibility of the document, having been admitted without objection. I am in support of the view asserted that,the non-affixation of seal is a mere irregularity that does not affect the jurisdiction of the Court. That is the current state of the law in Nigeria as demonstrated in the authorities cited by the learned counsel to the defendant/counterclaimant. Thus, it is a right that is waivable, and once the document is admitted without protest, it cannot be assailed later. Let me state too that, it is the purpose for which a document signed by a lawyer is to be put that determines whether or not the absence of seal on it would be fatal. Where the purpose is to show that the lawyer indeed signed the document or to prove the receipt of the document from the lawyer or to show by it, evidence that the lawyer collected some money, it would be preposterous to hold that, it could not be tendered in proof thereof, simply because the lawyer did not put his seal and stamp.This would defeat the purpose of Rule 10 of the Rules of Conduct for Legal Practitioners 2007 [RPCLP].I think the intendment of the rule is to prevent fake lawyers/lawyers without seal from practising in courts.

Thus, the intendment is to stop documents without seals and stamps of lawyers, from being filed in courts and not to prevent any document signed by a lawyer and sent to a third party and which becomes the property of the third party and in his custody, from being tendered.The law is trite that illegality, which attaches to the means of retrieval or source of such evidence, would not ordinarily affect the admissibility.That this is so, is evident in the said rule, when it said rule says, it is the lawyer that must not file or sign any document without his stamp and seal. It simply means that, the intention is to prevent the lawyer from making use of such document, by filing it in courts, and not that, such document cannot be tendered in evidence. To file a document is quite different from tendering it. You do not pay fees for tendering documents, but must pay for filing. The mere fact that frontloading system has been introduced does not detract from the nature of exhibits and mode by which they are brought to the courts. I wish to observe that, the rules of the RPCLP do not contain provisions on admissibility of documents;hence, the Evidence Act governs admissibility of document without regard to the rules. I therefore hold that, the objection to the admissibility of Exhibit DWN on the ground that the seal and stamp of the lawyer who franked it were not embossed is misconceived. This objection is therefore dismissed as totally lacking in merit. But that is not the end of the matter. Admissibility is different from probative value. A document may be admitted yet have no probative values. That is the crux in regard to Exhibit DWN [the Bill of Costs] and, Iproceed to examine it.

First, I hesitate, not in the least, to agree with the submissions of the learned counsel to the claimant/defendant-to-counterclaim that, under the present legal regime in Nigeria, solicitors fee is not grantable as cost against the unsuccessful party. I therefore endorse:Michael v. Access Bank of Nigeria Plc; Guinness Nigeria Plc v. Nwoke; and Nwanji v. Coastal Services Ltd [supra], cited by the leaned counsel to the claimant/defendant-to-counterclaim, as the true position of law in Nigeria on the fact that, counsel fee cannot be shifted to a party that lost in a suit. If this were not so, poor litigants would have been unwittingly scared from entertaining any hope of prosecuting any genuine opinion that their rights had been infringed, for fear of the possibly incurring heavy cost in solicitors’ fees, if per chance,they lose. Besides, the hiring of counsel is the private option of a party,in which the other side is not involved and is not responsible for, and cannot therefore be asked to pay, in the event that the other side loses the action. It is the private business of a client if she decides to hire the most expensive lawyer to prosecute his case. She alone knows what the case is worth to her and cannot therefore expect the other side to bear the cost. It should not be forgotten that parties to suits retain the right to personally prosecute their suits without hiring lawyers. Hence, hiring of lawyers to act as their agent is a matter of choice, which must not be borne by the other side. That is the public policy rationale behind the rule that, cost of hiring counsel, cannot not be shifted to the other side in lawsuits.

In addition, it would appear that the cost of N200million, being claimed, is in the nature of special damages that must be proved to the hilt. Evidence must be adduced showing that the Bill of Costs [Exhibit DWN] was actually paid by tendering the receipt acknowledging payment or evidence of receipt of it in the bank account of the recipient, either by showing the Statement of Account of the payer or that of the payee. There is none shown in this case. Thus, the Bill of Costs [Exhibit DWN] is a worthless piece of paper, without any probative value. Having come to this conclusion on the Bill of Costs [Exhibit DWN], the claim for cost of N200million is therefore dismissed in its entirety as totally lacking in merit. In this event, relief v. of the defendant/counterclaimant fails.

I move to reliefs ii.,iii., and iv. of the defendant/counterclaimant. These three reliefs have the same fulcrum. The fulcrum is the overdraft granted to Actinum Limited in account No. 1014132932. As found earlier on, the defendant/counterclaimant has not been able to link theclaimant/defendant-to-counterclaim to any of the atrocities allegedly committed in the accounts in issue. The claimant/defendant-to-counterclaim stated in the answers to the queries issued him that his duties did not include opening of accounts. He also testified in his evidence-in-chief and under cross-examination that his duty does not include the day-to-day management of customers’ account, and that, he was not the account officer to the accounts in question. In fact, Exhibit DWD dated Monday, 25 January 2016 from the Executive Management to Emeka D. Nwankwo, at the first page, last paragraph on the page, which runs to the second page therein, stated that:

“You engaged in unethical behavior by operating and allowing enormous suspicious transactions in accounts belonging to your wife…including granting unauthorized Facility [sic] to timum [sic] Nigeria Limited which is currently overdrawn by N1.11M”.

I cannot fathom how an overdraft allegedly approved by Emeka D. Nwankwo, would at the same time, be approved by the claimant/defendant-to-counterclaim. In any case, no evidence is tendered showing the approval of the claimant. It follows that this piece of claim is not proved against the claimant/defendant-to-counterclaim. In this event, the reliefs ii., iii., and iv. based on this claim,are not sustainable. They fail, and I hereby dismiss them.

I come to relief i. As held earlier on, all the reasons given in the letter of dismissal were not proved, relief i. is an offshoot ofthereasons given for the dismissal. Having held earlier on that all these reasons were not proved, relief i., which stems of therefrom, cannot be sustained. It must fail. It ought ordinarily not to be a relief claimed in counterclaim, but a defence. For this additional reason, it amounts to abuse of process, and therefore, doubly fails, and is hereby dismissed.Having resolved all the reliefs claimed in the counterclaim against the defendant/counterclaimant and dismissed them, it follows that issue 3 is also resolved in the favour of the claimant/defendant-to-counterclaim and against the defendant/counterclaimant.I therefore hold that, the defendant/counterclaimant failed woefully to prove her counterclaims. The counterclaim is therefore dismissed in its entirety. I move to issue 4, the last issue in the case.

ISSUE 4:

Whether the claimant is not entitled to the reliefs sought?

The claimant framed five reliefs. I pick relief 2) first. It is my view that it cannot be granted. This I say because, there is no basis on which the claims therein could be granted. To succeed in such a claim, a party must tender to the Court the source from which s/he derived the right to such relief.In this regard, the necessary document is the employer’s handbook or letter of appointment,if the conditions of service being claimed are stated in therein. In this case, the claimant tendered the letter of appointment. I cannot find any evidence of what is being claimed therein. In any case, it is the duty of the claimant to point to the particular provisions of the document that contains the right to the relief claimed. The claimant did not tender the employer’s handbook, which contained the conditions of his service. In this regard, it is the duty of the claimant to tender it in consonance with the doctrine that he who asserts must prove. Failure to tender the handbook, just like it was fatal to the defendant in discharging her burden of proof on the reasons offered for the dismissal of the claimant, is also fatal to the claimant in justifying relief 2).Secondly, the relief is even vague. A court of law has no jurisdiction to grant a relief that is vague and nebulous. To do this would necessarily entail that the court engages in speculative game. Hence, relief 2) is not proved, it fails, and I so hold. I move to relief 3).

Relief 3) is also not grantable. Why? I have held that the failure to tender the handbook is fatal to relief 2). It is also fatal to relief 3. It is from the handbook that it could be deciphered the amount of damages to which the claimant is entitled, as measured in relation to the length of notice to which either side is entitled in master/servant employment in the event ofdetermining the employment without the necessary notice. This is usually measured in terms of monthly salaries to be paid in lieu of the necessary notice. Theseare the only damages to which the claimant is ordinarily entitled in master/servant employment determined without notice, as it is, in this case. Since the handbook was not tendered, there is no way I can figure out the damages being claimed, which is measured by the length of notice required to terminate the appointment.The two sides have failed to tender the handbook in prove of the burdens on them, and borne the brunt. Once I hold that the appointment was wrongly determined, this would ordinarily be the damages to which the claimant would have be entitled. This is not to say that I am not conversant with the fact that, this Court can grant damages apart from the damages in lieu of notice, where the situation warrants. But in this particular instance, I take cognisance of the fact that, the claimant also claimed under relief 5) for damages arising from the libel. If he did not claim under this head, it could have been taken into account to go beyond the damages in lieu of notice.To consider relief 3) and consider relief 5) again would amount to granting double portions. I am still going to consider relief 5). By the combined effect of the above reasons, relief 3) fails, and is accordingly dismissed.

I am now left with reliefs 1), 4) and 5). Relief 1) is granted without much ado. It is a corollary to my finding that the reasons for the dismissal of the claimant were not justified. Relief 4) is also a corollary to my finding that the publication of the dismissal of the claimant on the defendant’s intranet, with the reasons for the dismissal and the picture of the claimant embossed, is libelous. I therefore grant relief 4) in its entirety. I now move to relief 5), which is the last in the series. I once more quote Guardian Newspapers Ltd & Anor. v. Ajeh [supra] 24, paras. D-F that:

“In libel cases, once the offensive article is found to be libelous of the plaintiff, damages follow and damages awarded is general damages. On the other hand where there is direct pecuniary benefit from the offensive publication punitive damages are awarded…”

Damages flows naturally from a finding of libel and when no pecuniary gains are mentioned against the tortfeasor, the damages awarded is general damages. But I am bound here to take into consideration the fact that the defendant did not retract the libelous publication and kept on justifying it up till her final written address. I cite the Ojukwu v. Nnoruka (1999) LPELR-5683 (CA) 28, paras. B-D where the Court of Appeal opined:

“Now, in a case of defamation, where the defendant sets up the defence of justification but fails to prove or justify it such a course attracts aggravated damages. Again, where there is evidence that the defendant repeats the publication of the defamatory matter, it attracts aggravated damages if the plaintiff succeeds.  The court also takes into account the station of the plaintiff and any damage which he may have suffered as a result of the publication of the defamatory matter”.

In elucidating further on the measure of damages, I refer to Shell Petroleum Dev. Co. Ltd V. Chief Victor Sunday Olarewaju [2008] LPELR – 3046 [SC]7, Paras. D-E, where the Supreme Court said:

“The matter then went on trial, concluding with the address [sic] of counsel for the parties. In his judgment on the 18th of July, 2000, the learned trial judge, E. Akpomudjere, J., allowed the claim in part. Specifically, he held that the dismissal of the plaintiff was wrongful and therefore null and void, granted reliefs V and VI and awarded N3m as damages for his arrest, detention and humiliation…

‘Both parties not being satisfied with the judgment of the trial court appealed to the Court of Appeal. By its judgment on the 21st day of January, 2002, the Court of Appeal affirmed the judgment of the trial court and dismissed both the appeal and cross-appeal.”

At page 30, paras. B-Cof this case, the Supreme Court affirmed the decision of the trial court as affirmed by the Court of Appeal and quoted above, thus affirming the grant of N3Million Naira damages for humiliation and deprivation suffered by the plaintiff from being falsely reported to the police. This shows plainly that, in deserving cases, damages, which take into consideration, hardship and humiliation suffered by the claimants could be granted in cases of breach of contract of employment. How much more, in a case of libel, which was justified till the last minute. It should not be forgotten too that, the claimant was also reported to the EFCC on this issue. It should not be forgotten also that, the claimant was a high ranking officer in the defendant’s bank and holds PhD in in Economics in addition to being a chartered banker, whose career seemed to have been totally shattered by this uncanny turn of events, because it is not likely that any financial institution would like to employ the claimant again.

When all these factors are taken into consideration, together with the fact that, in as far back as 2008, 10 years ago, the Supreme Court approved the award of N3Million damages in Shell Petroleum Dev. Co. Ltd V. Chief Victor Sunday Olarewaju [supra] in similar situation, I am of the candid view that, it would not be out of place to award the sum of N10Million Naira damages against the defendant and in favour of the claimant for the libelous publication against him. Relief 5) is therefore granted in part. I hereby award damages of N10Million Naira only for the libelous publication against the defendant and in favour of the claimant.

In all, reliefs 1) and 2) are granted in full. Relief 5) is granted in part to the tune of N10Million Naira only. Reliefs 2) and 3 are rejected and dismissed in their entireties. Cost of N100thousand is awarded against the defendant and in favour of the claimant. Apart from the fact that relief 4) is granted in full as framed, the monetary aspects of the judgment are to be complied with within one month from the delivery of this judgment, failing, which the judgment sums begin to attract 10% interest rate per annum.

Judgment is entered accordingly.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA

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