LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

PIUSITY MARY ADAORA VS UNITY BANK OF NIGERIA

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE I.S. GALADIMA:

 

Date: 30 October, 2018.  

                      

SUIT NO: NICN/OW/79/2016

 

 

BETWEEN:

 

PIUSITY MARY ADAORA      

                                                               

CLAIMANT

 

AND

 

UNITY BANK OF NIGERIA

                  

DEFENDANT

 

REPRESENTATION:

–          Yemi George Okoro for the Claimant.

–          U. G. Ijeoma for the Defendant.

 

­JUDGMENT:

This Claimant’s suit was filed on the 2nd of December, 2016 wherein she seeks the following:

 

  1. A declaration that the purported summary dismissal of the Claimant from the employment of the Defendant by letter of 15/11/2016 is unlawful, wrongful, null and void.

 

  1. A declaration that the Claimant did not withdraw the sum of N 33,653, 000.00 or any amount at all from the accounts of  Pastor Boniface Anyike, Ezinwo Chinemenum, and Nyonwa Order as alleged by the Defendant in its correspondences including that of 15/11/2016.

 

  1. The sum of N 6,222,147.00 being the outstanding salaries, allowances, 13th Month, two months’ salaries in lieu of notice and the 2015 gratuity of the Claimant fixed by the Defendant.

 

  1. The agreed interest of 5% on the sum of N 2,760,526. 47 fixed by the Defendant for the Claimant from December, 2016 until Judgment is delivered.

 

  1. Cost of instituting this suit assessed at N 500,000.00.

 

  1. 10% post judgment interest on the whole judgment sum until the whole judgment is fully liquidated.

 

The Claimant filed all the necessary originating processes to accompany her claim on the 2nd of December, 2016 and testified as a sole witness in prove of same. The Defendant filed a Statement of Defense and called into evidence the testimonies of two witnesses in open Court. The Statement of Defense was filed on the 1st of March, 2018 albeit out of time. The Claimant opted to file a Reply to the Defense and a further witness’ deposition both dated 13th March, 2017 and filed on the same date.

 

FACTS OF THE CASE:

The Claimant was employed by the Defendant Bank in September, 2007. Unfortunately, her employment was purportedly terminated when she was summarily dismissed by the Defendant via letter dated November 15 on allegation of conducting herself in an “irregular and unethical” manner amounting to fraud. She had prior to her summary dismissal been on administrative suspension with effect from April 21 2016. Her offense allegedly was that she facilitated particularly three bank customers (who were purportedly ghost employees) into withdrawing monies from their bank accounts and thereby conniving to defraud the Rivers State Senior Secondary School Board. The Claimant’s case is that she was wrongfully and unlawfully summarily dismissed upon false allegations. She further alleges that she has been robbed of all outstanding allowances and salaries. The Defendant’s defense is that the Claimant was rightly and lawfully summarily dismissed based on substantial proof of irregular and unethical practices by her. She is accordingly not entitled to the reliefs she now seeks.

 

HISTORY OF CASE:

This suit was filed before my learned brother Anuwe, J and hearing had commenced before her until my deployment and resumption at the Owerri division of this Court. Accordingly and by consent of the parties’ Counsel, the matter continued before me from the 14th of December, 2017 when I first sat over this suit with the continuation of cross examination of the Claimant who is CW1.

 

THE CLAIMANT’S CASE:

Upon the settlement of pleadings between the parties, the Claimant’s case was opened on the 4th of July, 2017 with the adoption of her depositions dated 2nd December, 2016 and 13th March, 2017. She tendered a total of 29 exhibits lettered Exhibits C1 to C28 and 1 document which was refused by the Court and marked as so. She was duly cross examined by Counsel to the Defendant on the 14thof December, 2017 and 19th of February, 2018 and thereafter closed her case on that later date.

 

The list of the documents tendered by the Claimant is as follows:

  1. Exhibit C1 – CERTIFICATE OF IDENTIFICATION dated 30/11/2016.
  2. Exhibit C2 –CERTIFICATE OF IDENTIFICATION dated 11/03/2017.
  3. Exhibit C3 –Email titled “CREATION AS ACTING BM ON THE APPRAISAL PORTAL”.
  4. Exhibit C4 – email sent by Claimant to Defendant titled “RE: INVITATION TO APPEAR BEFORE THE STAFF DISCIPLINARY COMMITTEE”.
  5. Exhibit C5 – generated email messages detailing correspondence from the Claimant to various recipients as well as the Corporate Office of the Defendant Bank on the subject “SIX MONTHS ON SUSPENSION”.
  6. Exhibit C6–TERMINATION OF GRATUITY SCHEME dated 8/7/2015 written by Aisha Azumi Abraham acting MD/CEO.
  7. Exhibit C7 –email generated text titled “PAYMENT OF 5% SIMPLE INTEREST ON YOUR GRATUITY FOR JAN – MARCH 2016” sent from HCMD to the Claimant on May, 16 2016.
  8. Exhibit C8 – INTERNAL MEMO on subject “GRATUITY STATEMENT” dated January, 7 2016.
  9. Exhibit C9 – OFFER OF APPOINTMENT dated 4th September, 2007.
  10. Exhibit C10 – CONFIRMATION OF APPOINTMENT dated September 11, 2008.
  11. Exhibit C11 – INTERNAL MEMO dated June 27, 2012 titled YEAR 2011 ANNUAL APPRAISAL EXERCISE.
  12. Exhibit C12 – INTERNAL MEMO dated 12th April, 2016 on subject titled CASH WITHDRAWAL ON CUSTOMERS’ ACCOUNT(s).
  13. Exhibit C13 – INTERNAL MEMO dated 14th April, 2016 on subject titled RE: CASH WITHDRAWAL ON CUSTOMERS’ ACCOUNT(s) from Claimant to the Defendant via Group Head Internal Control Department.
  14. Exhibit C14 – INTERNAL MEMO “ SUSPENSION FROM DUTY FOR OPENING SUSPICIOUS ACCOUNTS WITHOUT RECOURSE TO PROPER KYC & EDD dated 21stApril, 2016.
  15. Exhibit C15 –Letter written and addressed to Jibril Sadiq, Head HCMD by the Claimant dated August 22, 2016 titled “RE: SUSPENSION FROM DUTY FOR OPENING SUSPICIOUS ACCOUNTS WITHOUT RECOURSE TO PROPER KYC &EDD, MY WRITTEN HUMBLE REACTION TO IT AND PASSIONATE APPEAL.
  16. Exhibit C16 –Red Star Express tracking Detail dated August 31, 2016.
  17. Exhibit C17 – SUMMARY DISMISSAL dated November 15 , 2016.
  18. Exhibit C18 – Solicitor’s letter on behalf of the Claimant on RE: SUMMARY DISMISSAL OF MRS. PIUSITY MARY ADAORA dated 16thNovember, 2016 addressed to the MD of the Defendant Bank.
  19. Exhibit C19 – Airway Bill.
  20. Exhibit C20 – EMPLOYEE HANDBOOK for UNITY BANK PLC.
  21. Exhibit C21 – STANDARD OPERATIONS MANUALS OF PROCEDURES for UNITY BANK PLC.
  22. Exhibit C22(A) – STATEMENT OF ACCOUNT FOR INDIVIDUAL HOLDER ANYIKE BONIFACE FROM 1/1/2011 – 8/8/2016.
  23. Exhibit C22 (B) – STATEMENT OF ACCOUNT FOR INDIVIDUAL HOLDER NYONWA ORDER N. FROM 1/1/2011 to 4/13/2016.
  24. Exhibit 22 (C) – STATEMENT OF ACCOUNT FOR INDIVIDUAL HOLDER EZINWO CHINEMENUM M. O. FROM 1/1/2011 to 8/8/2016.
  25. Exhibit C23 –Letter from Rivers State Senior Secondary Schools Board Emohua dated 9/5/2016.
  26. Exhibit C24 –Document indicating annual budgets for various regional branches of the Defendant Bank 2014/2015.
  27. Exhibit C25 –INTERNAL MEMO FROM KINGSLEY U. EREGBUO TO GH INTERNAL CONTROL DEPARTMENT TITLED “QUERY BY WITHDRAWAL BY PROXY IN RESPECT OF SUSPICIOUS CUSTOMERS PAYMENTS dated 22nd April, 2016.
  28. Exhibit C26 – Document dated 21/4/2016 from Umeh Chioma to Resident Controller of the Defendant Bank .
  29. Exhibit C27 –Acknowledgement and Acceptance form by Claimant dated 4/9/2007 in respect of the Defendant Bank Employee Handbook.
  30. Exhibit C28 – Mission and Vision Statements of the Defendant Bank.
  31. Internal Memo marked “REFUSED”.

 

Relevant portions of her testimonies as well as the answers given in her cross examination shall be analyzed in the course of making my findings.

 

THE DEFENDANT’S CASE:

The Defendant opened its case on the 16th of April, 2018 and relied on the testimonies of two witnesses. DW1, one Uche OnyemaechiAhunna relying on her deposition of 1/3/2017, testified under oath and tendered a total of 7 documents lettered exhibits D1 to D7. Upon conclusion, she was cross examined by the Claimant’s Counsel and a document was tendered through her by the Claimant’s Counsel as D8. The documents tendered by DW 1 are as follows:

 

  1. Exhibit D1 –Various Cheques (6 in number) allegedly cashed by the Claimant.
  2. Exhibit D2 – Another set of Cheques (3 in number) again allegedly cashed by the Claimant purportedly on behalf of three account holders.
  3. Exhibit D3 – Letter written by the RIVERS STATE SENIOR SECONDARY SCHOOLS BOARD dated 19th April, 2016 titled INVESTIGATION OF GHOST WORKERS”.
  4. Exhibit D4 – Another letter written by the RIVERS STATE SENIOR SECONDARY SCHOOLS BOARD dated 24th, June 2016 titled RE: INVESTIGATION OF GHOST WORKERS (REMINDER).
  5. Exhibit D5 (A) –DOCUMENTATION FORMS FOR ACCOUNT OPENING IN THE DEFENDANT BANK BY EZINWO CHINEMENUM M.O.
  6. Exhibit D5 (B) – DOCUMENTATION FORMS FOR ACCOUNT OPENING IN THE DEFENDANT BANK BY BONIFACE ANYIKE.
  7. Exhibit D5 (C) – DOCUMENTATION FORMS FOR ACCOUNT OPENING IN THE DEFENDANT BANK BY NYONWA ORDER N.
  8. Exhibit D6 (A) – Collection of Cheques allegedly paid by one Chioma Umeh at regional office Branch to Claimant on behalf of Ezinwo Chinemenum.
  9. Exhibit D6 (B) – Collection of Cheques allegedly paid by one Chioma Umeh at regional office Branch to Claimant on behalf of Nyonma Order N.
  10. Exhibit D6 (C) – Collection of Cheques allegedly paid by one Chioma Umeh at regional office Branch to Claimant on behalf of Ezinwo Chinemenum.
  11. Exhibit D6 (D) – Collection of Cheques paid at Onne Branch Office.
  12. Exhibit D6 (E) – Collection of Cheques allegedly paid by one Chioma Umeh at regional office Branch to Claimant on behalf of Boniface Anyike.
  13. Exhibit D7 (A)–Gratuity Scheme Agreement form between the Defendant Bank and ASSBIFI.
  14. Exhibit D7 (B) –Collective Agreement between NEABIAI and ASSBIFI.
  15. Exhibit D8 – document titled REPORT ON IDENTITY ISSUES OF THREE SALARY ACCOUNTS IN BRANCH 412 and dated March 21, 2016.

 

Again, relevant portions of her testimony shall be analyzed in the course of this pronouncement.

 

The 2ndand last witness for the Defendant testified on the 22nd of May, 2018. Mr. Jubril Ayeni is the Head Employee and Industrial Relations Unit of the Defendant Bank. He adopted his deposition of 1/3/2017 and he too was cross examined by the Claimant Counsel accordingly. Relevant portions of his testimony shall be reproduced for analysis too in the course of this judgment.

 

DEFENDANT’S FINAL SUBMISSIONS:

Upon conclusion of evidence by both sides, the parties were given a total of 49 days in keeping with the rules of this Court, for the purpose of filing their final addresses and reply. Interestingly, the period given was to fall during the vacation of this Court and as such it was expected that either side would have filed their briefs at the registry before this Court’s resumption. The Defendant’s Counsel who was accorded the first 21 days, did not however file his written submissions within time. The Claimant’s Counsel nonetheless, filed a written address upon the expiration of the 21 days granted the Defendant to file his and thereby seeking to foreclose the Defendant Counsel’s right to submit his written final arguments and a subsequent reply on points of law. The Claimant’s Counsel, thus being the first to file his brief of arguments, had argued before me on the 26th of September, 2018 after we resumed, that he had a right to be heard in reply on points of law.

 

By Order 45 rules 9, 10 and 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 which generally govern the filing of written addresses, where a party due to cogent and compelling reasons is unable to file his/her written address within the 21 days or time limit ordered by the Court, he/she may apply for an extension of time so to do. However, such an application for extension of time shall be made at least seven working days before the expiration of the 21 days or time limit ordered by the Court. Where a party who is in default fails to apply for such an extension of time, the Claimant may proceed to file his/her written address within the 21 days allotted or time granted by the Court.

 

Obviously, the Defendant’s Counsel here had on or before the 12th of June, 2018 which was when his 21 days would have lapsed from the 22ndof May, 2018. He however filed an application for extension of time to file his written address and reply on points of law and to deem them as duly filed and served on the 27th of July, 2018. The application wasmoved on the 26th of September, 2018 and warily granted by this Court although the Claimant’s Counsel had observed that he too reluctantly allowed him so doin the interest of justice.

 

I must state here that the attitude shown by the Defendant’s Counsel in not filing within time, is quite unfortunate. I understand but for the fact that Order 45 of our rules is discretionary, I ordinarily should have foreclosed the Defendant and asked him to address this Court only on points of law if he so wished. It is necessary for Counsel to always act professionally and diligently in the best interest of his clients. It is not sufficient and definitely not a cogent enough reason to state that the brief is yet to be perfected thus the cause for the delay. I overlooked the contents of the processes filed in support of the application for extension of time which are quite frankly, flimsy and fullof typographical errors. This Court merely elected not to foreclose the Defendant from being heard in the interest of justice.

 

Now, the Defendant Counsel’s final written address is dated 26th of July but filed on the July 27 2018.Two issues were raised for determination thus:

 

  1. Whether the Claimant’s summary dismissal by the Defendant was lawful?

 

  1. Whether the Claimant having been lawfully dismissed is entitled to her claims?

On issue 1 above, learned Counsel started by saying that the onus of proof in this case lies on the Claimant and not on the weakness of the Defendant’s case. He cited an authority and went further to state that like in EKEAGWU V. NIGERIA ARMY (2010) ALL FWLR (Part 531) 1442 at 1444, in an action for wrongful dismissal two primary issues must be determined. They are:

 

  1. Whether the dismissal of the Plaintiff is wrongful?;
  2. What is the measure of damages recoverable upon prove that dismissal is unlawful?

 

He said that like in FUT YOLA V. MAIWUYA (2013) ALL FWLR (Part 667) at 753 and 756, in the dismissal or termination of an employee on grounds of misconduct, all an employer needs to establish to justify his action is to show that the allegation was disclosed to the employee and he was given an opportunity of a fair hearing, the rules of natural justice were not breached and the disciplinary panel followed laid down procedures, if any, or that the employee accepted that he committed the act upon and after investigation.

 

It was submitted further that in this instant case, the Claimant was duly informed by means of a query letter, her misconduct leading to her suspension from performing her duties as recommended by an investigative panel that sat in Port Harcourt. She was again referred to a staff disciplinary committeein Lagos whereupon she was invited to face the committee to answer to the charges against her. That she was given amble opportunity to present her case and thereafter the committee recommended her dismissal and communicated her via letter which was tendered before this Court as Exhibit C17 dated 15th November, 2016.

 

Learned Counsel for the Defendant is confident that the steps taken towards the Claimant’s dismissal are in conformity with the decision of the Court in FUT YOLA V. MAIWUYA (Supra). Accordingly also, the Claimant had not challenged the fact that she misconducted herself because she admitted under cross examination that she cashed three Cheques dated July 92015. It is Counsel’s contention also that the Claimant could not have said she was merely facilitating the withdrawal of money on behalf of the account holders since such is not encouraged by the Defendant bank and that Exhibit C20 which is alleged to be the Defendant Bank’s employee handbook does not contain any provisions therein allowing staff of the bank to make withdrawals of money on behalf of account holders. Learned Counsel believes that because the Claimant acted unethically, she was compromised and she is guilty of making withdrawals for her benefit, and that this conduct is against the standard banking practice and a fraudulent misconduct worth dismissing the Claimant.

 

Again, that like was decided in the case of ANAJA V. UBA (2011) ALL FWLR (part 600) 1289, any acts outside the scope of an employee’s duties under his employer’s establishment which are prejudicial to the latter’s interests, amount to willful misconduct and that considering the nature of the business undertaken by the Defendant as a bank, there is an utmost need to ensure that the fiduciary responsibility held by the Claimant is utmost and not compromised. So the act of presenting Cheques presumably by customers is completely outside the scope of the Claimant’s employment. Adumbrating further, the Defendant’s Counsel said that it cannot be true that those customers in question, merely signed Cheques and deposited them for the Claimant to cash on their behalf; that it is an alien practice thereby, for which there are no exculpatory excuses for the Claimant’s behavior. This is more so since it is not a recommended bank practice. In fact, that the Claimant had signed that she received those monies by endorsing on the bank of the cashed Cheques as established in Exhibits D2 (A), (B), and (C).

 

On issue 2, which is whether the Claimant is entitled to her claims having been lawfully dismissed, learned Mr. Ijeoma states that the burden is on the Claimant to show that she is entitled to such. That the Claimant had reproduced in her paragraph 64 of her Statement of Facts, some monetary figures which she alleged are being owed her by the Defendant. She also pleaded her bank Statements of account where she lodged her salaries and had given the Defendant notice to produce same. According to Counsel, the Claimant failed to show that she was not paid all her entitlements since she could not produce her original statement of account for this Court’s inspection. It is accordingly not the Defendant’s onus to show that she was not paid but that of the Claimant as such; she is legally required to satisfy the burden placed on her.

 

As far as her claim for gratuity goes, Counsel argues that her claim that her gratuity was fixed in January 2015 and her tendering of Exhibit C6 only suggest that she is making a claim based on the collective agreement reached between the Defendant bank and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI).

 

According to learned Counsel, the Claimant cannot be entitled to any of the provisions of Exhibit D7 (A) which is a copy of the Gratuity Scheme Agreement between the Defendant and ASSBIFI because as stipulated in paragraph 1.2 of that exhibit, the agreement does not benefit any Senior Staff who has been dismissed. Moreover, it is contended that the Claimant had argued that Exhibit D7 (A) is a product of a collective agreement which had not been incorporated in her contract of employment as such it cannot be said to be enforceable against her. It is submitted therefore that the Claimant cannot blow hot and cold at the same time in that while she claims certain gratuity from Exhibit D 7(A), she denies the enforceability of the same Exhibit against her interest.

 

Learned Counsel finally urges this Court to dismiss this suit.

 

CLAIMANT’S FINAL SUBMISSIONS:

Claimant’s Counsel raised two issues for determination thus:

  1. Whether the Claimant has proved her case with pleaded Facts in the statement of facts and evidence in her deposition with preponderance of evidence as required by law?

 

  1. Whether the Claimant is entitled to all her claims as contained in the complaint, statement of facts and deposition?

 

On issue one above, the Claimant said it is not in dispute who the onus is upon to prove this case. And that like in the case of ISHOLA V. UNION BANK LTD (2005) 3 SC (part 11) 80, the Claimant is required to prove this civil case upon preponderance of evidence. As such, as shown before this Court in Exhibit C9 and as attested to in paragraphs 2 and 4 of the witness’ deposition, the Claimant joined the Defendant bank as an employee on the 4th of September, 2007 and her appointment was confirmed by letter on the 11th of September, 2008 (Exhibit C8). She also received salary increase too by letter communicated as Exhibit C11 on the 27th of June, 2012. Along with the terms and conditions of her employment in Exhibit C9, other terms of her employment are as contained in the Bank’s Employee handbook. The said handbook was tendered as Exhibit C20. It is therefore not contentious that her employment was guided by both her letter of employment and the employee handbook. The Claimant’s Counsel enjoined this Court to accept Exhibit C20 as the handbook given to the Claimant upon her employment.

 

In proffering his arguments in support of the Claimant’s case, learned Counsel asked two questions thus:

 

  1. Whether the Claimant committed any breach or offense known (contrary) to the standard operation (operational standards of the bank) i.e. Exhibit C21 or the Employee handbook (Exhibit C20) and whether the Claimant tampered with the accounts of the three suspected customers?

 

  1. Whether it is the Defendant’s handbook i.e. Exhibit C20 that guided the relationship between the Claimant and the Defendant or a Collective Agreement between NEABIAI and ASSBIFI i.e. Exhibit D 7(A)?

 

On the question whether the Claimant committed any breach or offense against the Standard Operations of the Defendant bank, Counsel relying on the pertinent portions of the Claimant’s deposition as well as exhibits tendered, submitted that it is clear the Claimant was not the only staff involved in the opening of the three accounts in 2011 for which she is now penalized. That there is ample evidence to show that three other staff of the Bank were strategic in their duties and had been involved in the opening of those accounts in 2011 when the Claimant was merely a Customer Service Officer and a junior staff in the Defendant bank. That this fact was copiously averred to by the Claimant and even the Defendant Witnesses had admitted when they remarked that there was no way a single officer could have been involved in opening bank accounts in the Defendant bank. Thus being the case, the other staff who were involved in the opening of those accounts should be just as liable as the Claimant if the Defendant ascribes any impropriety in the manner those accounts were said to have been opened.

 

According to the Claimant’s Counsel also, that one Ijeoma Obih, the BSM of Onne Branch of the Defendant bank was instrumental for having the Claimant removed as an Acting Manager of the same Branch because of “seniority issue” and that she had alleged that the Claimant had stolen monies from those accounts just to spite the Claimant. That the Claimant never endorsed any of the Cheques tendered as Exhibits D6 (A), (B), (C), (D) or (E). That there is irrefutable evidence to suggest that she never signed any of those Cheques. That the Claimant only collected cash on behalf of those three customers once on the advice of the BSM Ijeoma Obih and the Claimant endorsed the Cheques at the back as can be seen in the exhibits tendered as D2 (A), (B) and(C) respectively. As far as Counsel is concerned, the Defendant has to prove the allegation of criminal impropriety allegedly committed by the Claimant since in law, the burden to prove a crime lies with the party who alleges such. Accordingly also, the offense alleged against the Claimant cannot hold since it is based on hearsay as the said Ijeoma Obih was never called to testify in open Court to show that the Claimant stole the monies for which she now stands dismissed.  There is also no verifiable prove by the DWs to show how much money was allegedly stolen by the Claimant.

 

It is further argued that even the Rivers State Senior Secondary School Board which was alleged to have written a letter to the Defendant Bank complaining that the three account holders were ghost workers, never stated that the Claimant facilitated those three to commit any crime. That besides, the School board had written a letter (Exhibit D 3) which clearly stated that those three account holders were no longer staff of their schools. It however did not make any allegations against the Claimants particularly and or wrote to state that certain amounts of monies were found stolen.

 

Therefore, it cannot be said that the Claimant had breached any of the provisions of Exhibits C20 and 21 which do not expressly preclude the Claimant or any of the bank’s staff, from receiving cash on behalf of an account holder provided that it was done legally and in the manner prescribed by the bank. So, the failure of the Defendant to elicit any evidence to show how the Claimant improperly signed any Cheques, withdrew from customers’ accounts illegally and or received any monies for her personal benefit is inimical to the success of the Defendant’s allegation.

 

Furthermore, that the letter of summary dismissal tendered as Exhibit C18 which stated that she withdrew cash and assisted customers to make a total of 13 separate withdrawals in contravention of the bank’s standard of operations for third party withdrawals, is unfounded. Counsel admitted that although in common law a master needn’t give any reasons for dismissing a servant, he believes that the reasons given for the dismissal of this Claimant were unfair, particularly in view of the fact that the offense alleged is unsubstantiated. That based on the terms and conditions of the Claimant’s employment as well as the contents of Exhibit 20, the fact that the Claimant assisted some customers to withdraw some money from their accounts, is not a stated reason for terminating an employee’s employment since parties are bound by the terms of their contract. As far as can be said, Exhibits C9 and C20 are the terms making up the contract for which the two parties here are bound. Accordingly, the Claimant can only be dismissed provided the provisions under paragraph or article 12.8 (a) and (b) and paragraph or article 14.5 of Exhibit C20 are complied with. That those provisions stipulate that any reasons for an employee’s dismissal shall be expressly stated in the letter of dismissal. I have been asked to see the averments in paragraphs 52, 53, and 54 of the Statement of Facts.

 

Moving on to address his second question, which is whether it is the Defendant’s handbook i.e. Exhibit C20 that guided the relationship between the Claimant and the Defendant or a Collective Agreement between NEABIAI and ASSBIFI i.e. Exhibit D 7(A), learned Mr. Ojo of Counsel for the Claimant stated that collective agreements are at best, gentlemen agreements devoid of legal sanctions if breached. He cited NWAJAGU V. AIC NIG. LTD (2014) 42 N.L.L.R 167;  to buttress this point.  That being an extraneous agreement, Exhibit D 7(A) cannot be said to have been incorporated into the Claimant’s employment terms and conditions. In order for this Court to hold that Exhibit D 7(A) is binding on the Claimant, the Defendant must accordingly show that the agreement was incorporated either expressly or by necessary implication, into the contract terms of the parties. That like in ANAJA V. UBA PLC (2011) 5 NWLR (part 1270) 377, the Court of Appeal had held that there was no evidence on record that exhibit M (the main collective agreement made between the Nigerian Employers’ Association of Banks, Insurance and Financial Institutions) was adopted to form part of the terms of employment of the Appellant and as such it was held that the document did not regulate the relationship between the Appellant and the Respondent. Counsel therefore wants this a Court to hold that Exhibit D7(A) was never incorporated into the Claimant’s letter of employment and as such, it must be discountenanced. He wants me to treat the evidence as worthless more-so because of the following reasons:

  1. The collective agreement was made in 2005 whereas the Defendant bank was incorporated as a bank in 2006. See Exhibit C20 page 10.
  2. The Defendant and Claimant were not parties to the collective agreement.

III.           The agreement had duration of two years before extinction, i.e. from 1st April, 2005 to 1st April, 2007 whereas the Claimant was employed in September 2007.

  1. The copy of the said agreement was stated at page 55 to belong to WEMA BANK PLC which is not a party in this case.
  2. The said agreement was never incorporated into the Claimant’s agreement notwithstanding that it was purportedly made in 2005 while the Claimant’s employment was in 2007.

 

I was asked to consider the decision in OSHO V. UNITY BANK PLC (citation supplied) which is accordingly similar to the case at hand. Also, learned Counsel wants this Court to refuse to place any value on the said Exhibit D7 (A) even if it were made for the benefit of the Claimant because she was never a party to the agreement. He said that besides the document is undated and by a plethora of decided case, any document that is undated has no legal life. He also emphasized on the fact that the Claimant is not an automatic member of ASSBIFI because she never subscribed to be a member. That in order to become a member of such a union, an employee must write an application to join and his name must be registered in the register of members. That the onus was on the Defendant to establish that the Claimant was a registered member of ASSBIFI.

 

On the action of the disciplinary committee set up by the Defendant, learned Counsel wants this Court to find that that committee was biased and had not based its findings on the legal requirement of prove beyond reasonable doubt before recommending the summary dismissal of the Claimant. That the allegation of theft of N33, 653,000.00 leveled against her was never proven even though they claimed she removed those sums from the accounts of 3 individual account holders. Besides, the DWs could not state the amount allegedly stolen by the Claimant and the report of the disciplinary committee was never tendered though DW2 claimed it existed. The Counsel believes it was a withheld evidence at best since if produced it was likely to go against the Defendant (section 167 Evidence Act 2011). That as in the case of AROBIEKE V. N.E.L. MANAGEMENT CO. (2018) 10 WRN 49 at 67, every tribunal must observe the basic procedural and other requirements of the rule of natural justice and must ensure fairness during its proceedings. That the Claimant has stated that the Disciplinary Committee acted with prejudice with the remarks made by the Chairman of the panel as well as the fact that she was given just one week to cause the arrest of three suspected customers of the bank even though the committee ought to have known that was not possible. That DW 2 who was also a member of the panel, could neither tell this Court satisfactorily how they arrived at the alleged sum of money stolen by the Claimant nor the manner such monies were allegedly withdrawn from holders’ accounts. Besides that the said DW 2’s testimony was based on hearsay since he said he was told the Claimant endorsed her signatures at the back of the Cheques and he couldn’t identify the Claimant’s signatures. Counsel adumbrated that even though the Claimant does not seek reinstatement, she deserves to be paid her entitlements accordingly because of the wrongful dismissal.

 

On the second issue for determination which is whether the Claimant’s claims should succeed, it is submitted that the Claimant has placed sufficient evidence to suggest she is entitled to her claims made, that reliefs 3 and 4 should be granted in the face of irrefutable statements made in relevant paragraphs of the Claimant’s Statement of Facts, as well as her depositions. That according to the Claimant’s claim, she is entitled to be paid the sum of N6,222,147.97 being outstanding salaries, allowances, 13th month, two months’ salary in lieu of notice and the 2015 gratuity as fixed by the Defendant. Accordingly also, that there is a 5% interest on the sum of N2, 760,526.47 fixed by the Claimant from December, 2016 until judgment is delivered. I have been asked to refer to paragraph 64 of the Statement of Facts for a breakdown of the amounts due to the Claimant. That the Defendant only made a general and sweeping denial of these claims without more as such, this Court must believe the Claimant and award the monies sought against the Defendant. Counsel submits that where a dismissal is declared to be wrongful, a Claimant is entitled to payments in lieu of notice of termination of employment and in this case, the notice required by Exhibit C 20 is two months (or salaries in lieu of the two months). He said the Claimant had demanded for her unpaid salaries via several correspondences which fell on deaf ears. That even when the Claimant was under suspension she was denied the half salary which ought to have been paid in accordance with the terms of her employment and the provisions of the employee’s handbook. That it should be held that the Claimant is entitled to be paid all her full salaries from April to November, 2016 when she was wrongfully dismissed. I have been asked to apply the decision in AKINTOYE V. HOTEL BON VOYAGE (2014) N.L.L.R. 354.

 

Counsel finally advocates this Court to also award the costs of maintaining this suit as well as post judgment interests at 10% per annum on the judgment sum.

 

DEFENDANT’S REPLY:

In response, the Defendant’s Counsel refutes not having specifically denied the monetary claims made by the Claimant. As far as he is concerned, the fact that the Claimant was lawfully dismissed from the employment of the Defendant disentitled her from any further monetary benefits from it. He relied on ANAJA V. UBA (Supra) to re emphasize that the Claimant was dismissed because of her misconduct and in law, she cannot be said to be entitled to any other claims from her employer. He again urged this Court to dismiss her suit.

 

Both Counsels adopted their written final addresses on the September 26 2018 and the suit was adjourned to today for judgment.

 

 

 

 

DECISION:

I have examined the entire proceedings, perused all the processes filed and thoroughly gone through the arguments, submissions and authorities relied upon by both counsel. In making my decision in this suit, I too have formulated two issues for determination thus:

 

  1. Whether the Claimant was unjustly dismissed by the Defendant?
  2. Whether the Claimant is entitled to the claims sought?

 

On whether the Claimant was unjustly dismissed:

One fact which is not in dispute in this case is that the Claimant was employed by the Defendant before her summary dismissal from the employment on November 15 2016. The summary of the circumstances leading to the dismissal is that on April 12, 2016 the Claimant was queried for allegedly making some cash withdrawals from the accounts of certain customers. When her response (Exhibit C13) to the query was found unacceptable, she was suspended from duty (Exhibit C14), invited to a Staff Disciplinary Committee and thereafter summarily dismissed (Exhibit C17). The letter of Summary Dismissal indicates that the Claimant’s response to those queries, and her explanations about assisting customers make cash withdrawals, were allegedly in contravention of the Defendant’s operational standards for third party withdrawals. Following which the Defendant summarily dismissed the Claimant with immediate effect purportedly “for engaging in irregular and unethical practices on Customers’ accounts.”

 

Learned Counsel for the Claimant argued that the reason adduced by the Defendant for the dismissal is not in tandem with what is contained in the terms and conditions of employment, or the Employee Handbook (exhibit C20). This fact was also averred by the Claimant in paragraphs 54 of her statement of facts as part of her grievance. In further argument also, Counsel stated that where the conditions of employment specifies that reasons shall be given prior to an employee’s dismissal, it becomes the employer’s duty to establish such reasons.

 

Notably, there is admission by the Claimant of her involvement in the conduct complained of by the Defendant. This can be gleaned from her Exhibit C13 which is a copy of an email she sent to the Defendant, where she specifically wrote that “…these customers make their withdrawals by themselves but sometimes because of their very busy schedule, they would rather engage my assistance in the course of their withdrawal based on my banking relationship with them in order to facilitate their transactions.” Also, on the 19th of February 2018, during cross-examination, she said she cashed three cheques dated 9/7/2015 (exhibit D2), corroborating her averment in paragraph 44 of her written deposition adopted as her evidence-in-chief, (similar to paragraph 43 of her statement of facts) which reads in part as follows:

 

“… I only assisted them to facilitate quick payment…”

 

The critical question that comes to my mind is: is this conduct by the Claimant in facilitating quick payments or cashing cheques on behalf of customers, misconduct sufficient to justify her summary dismissal by the defendant?

 

The Supreme Court gives an apt response in the case of AJAYI vs. TEXACO NIGERIA(1987) 3 NWLR (pt 62) 577 at 579 cited in YUSUF vs. NATIONAL TEACHERS INSTITUTE (2002) FWLR (Pt. 129) 1509 at 1526, as follows:

 

“There is no fixed rules of law defining degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of grave and weighty character as to undermine the confidence which would exist between him and his master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employee irrespective of the condition of service”.[emphasis mine]

 

The case of EZE V. SPRING BANK PLC (2012) All FWLR (pt. 609)1076 at 1106, is equally instructive on this point to the effect that an employee can be dismissed if his/her employer is satisfied that the employee did something against the employer’s interest.

 

However, as rightly argued by the Claimant’s Counsel relying on the case of OLORUNTOBA OJU V.ABDULRAHEEM (2009)26 WRN 1 at 57, once a reason is given by the employer for dismissal, it has to be shown at trial that the employer had good grounds for such dismissal. In the instant case, the reason for which the Claimant was dismissed was stated to be for engaging in “irregular and unethical practices”. Apparently, from the Claimant’s averment of her assistance to certain customers to facilitate quick withdrawals from their accounts, to her admission during cross – examination on December 19 2017 as follows:

“Yes, I cashed these cheques…”

 

(the cheques being Exhibits D2(A), (B), and (C) – three cheques all dated 9th July 2015 belonging and made out to Anyike Boniface, Nyonwa Order, Ezinwo Chinemenum respectively), – clearly indicate that the cheques were neither issued personally to the Claimant; nor did she convert the withdrawn money to herself but that she rendered “assistance” to those customers. It was this conduct the Defendant bank repudiated and could not condone which thus led to her being summarily dismissed.

 

I perused exhibit C21, the Standard Operations Manual of the Defendant bank, especially its article 2.4 located at page 77, which guides the process and describes how cash withdrawals by account holders and cash payment to third parties shall be done. Unfortunately, there is nothing providing for bank staff collecting or withdrawing cash on behalf of customers. A simple definition of irregularity is any action not conforming to laid-down rules or regulations. Malpractice on the other hand includes professional misconduct, and conducts falling short of reasonable skill, care or diligence. See OLANREWAJU V.AFRIBANK PLC (2001) FWLR (pt 72) 2008 at 2017.

 

In the present case, the Defendant tendered exhibit D2 (A), (B) and (C), which the Claimant admitted cashing on behalf of the respective account holders, substantiating the reason for the summary dismissal, thereby providing the Defendant with a complete defence to the Claimant’s action for wrongful dismissal.

 

I do believe that the conduct of the Claimant in this present case considered to be misconduct, entitles the Defendant to dismiss the Claimant, notwithstanding the provisions of section 12.8 of the Employee Handbook (exhibit C20) which clearly outlines what offences shall be considered as grounds for summary dismissal.

 

As far as Article 14.5 of the said exhibit C20 is concerned also, summary dismissal of an employee shall be without notice, and the reason shall be clearly stated in the letter of dismissal.

 

Considering the position of the Claimant’s Counsel that the Defendant did not observe the rules of natural justice and was biased towards the Claimant when she appeared before the Staff Disciplinary Committee, the relevant question to be resolved is whether the Claimant was allowed to state her version of events in her defence before the Defendant summarily dismissed her?

 

The submissions of Learned Counsel for the Claimant relying on the cases of SAIBU V. KWARA POLY (2009)27 WRN 120 at 151, and AROBIEKE V. NEL MGT (supra), that the bias of the Defendant’s Staff Disciplinary Committee led to a breach of the principles of natural justice is misconceived with all due respect. The employment in the present case is not a statutory one but an ordinary master and servant relationship and the threshold of compliance was met when the opportunity to the employee to state her case was given her.

 

The law is clearly stated in EZE V SPRING BANK PLC (supra) at 1097 A-B as follows:

 

…“the instant contract of employment being a mere contract of master and servant relationship … that on giving the appellant opportunity to make his defence on the allegation…the instant employer has complied with the rules of natural justice”.

 

The Claimant averred in paragraphs 21, 22, 25, 32, 33 and 34 of her statement of facts that she was notified of the allegations against her and she was afforded the avenue to defend herself.

 

I believe that the principles of natural justice viz: the rule against bias and the rule of fair hearing were complied with before the Claimant was summarily dismissed. The Claimant’s allegation that the dismissal is wrongful because the reasons for which she was dismissed were not as provided for in exhibit C20 is of no moment. I hold that the Defendant validly dismissed the Claimant. Relief 1 claimed in this action therefore fails, and it is hereby denied.

 

In any event, I cannot declare a summary dismissal in a master/servant relationship, such as this null and void because that will in effect suggest that the employment relationship is still alive, and thereby remove the Defendant’s right of summary dismissal under the contract of employment. See OSISANYA V AFRIBANK PLC (2007) 6 NWLR (pt 1031) 565 at 581.

 

Regarding the second relief sought by the Claimant, although she admitted cashing exhibit D2, the Defendant did not lead any evidence to support the facts pleaded in the Statement of Defence that she was responsible for withdrawing the total sum of N33, 653,000.00. It does seem to me that this is an allegation of crime which must ordinarily be proven beyond reasonable doubt. The circumstances of this case do not indicate that the Claimant was reported to the Police for investigation and there has not been sufficient evidence shown suggesting she committed the alleged crime. She was also never arraigned before a Magistrate Court or any other tribunal to determine her guilt. As a matter of fact, the report of the Disciplinary Committee where she was allegedly questioned over her misconduct was never tendered as an exhibit. All these are sufficient reasons why this Court cannot accept the allegation that the Claimant stole the sum of over N33 Million Naira. As a matter of fact if the allegation were even believable, the Defendant would not waste any moment in ensuring the recovery of such huge amount of money from the Claimant. There is no counter claim made by the Defendant for this alleged sum either. The law is established in this respect that facts pleaded but not supported with evidence are deemed to have been abandoned. Consequently, the contents of paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 30, 41, 43, 44, 45, 46, 51, 53, 57,and 62 of the Statement of Defence as well as Exhibits D 6 (A) – (E) go to no issue – see JADOCOM LIMITED VS. OGUN ELECTRICAL (2004) 3 NWLR (pt 589) 153 at 184 C – D. I therefore find that the Claimant did not withdraw the sum of N 33,653,000.00 from the accounts of Pastor Boniface Anyike, Ezinwo Chinemenum, and Nyonwa Order as alleged by the Defendant in its correspondences including that of November 15 2016 and I so hold.

 

On whether the Claimant is entitled to the monetary claims made:

The second issue for determination is a very crucial aspect of my findings. What exactly is the Claimant entitled to in the aftermath of her valid summary dismissal?

 

Just like the Defendant’s Counsel rightly contended, a summary dismissal from employment is punitive, and usually confers a state of disgrace and a loss of benefits. That is the general position with the exception being that any entitlements available to a dismissed employee depends on the contract of employment. See JOMBO vs. P.E.F.M.B. (2005) 14 NWLR (pt 945) 443 at 467.

 

Article 14.5.1 of exhibit C20, which is incorporated into exhibit C9 – the Claimant’s employment letter provides for certain entitlements and deductions upon the summary dismissal of an employee as follows:

 

  1. Forfeiture of notice or payment in lieu;
  2. Forfeiture of long service award;
  3. Payment of earned salaries, allowances, and benefits up to the date of dismissal;
  4. Remittance of own pension contribution;
  5. Payment of earned and accrued leave commuted to cash;
  6. Deductions of all liabilities and statutory obligations;

Also, with the knowledge of the facts of this case that the Claimant was placed on administrative suspension on April 21 2016, Article 12.6 of exhibit C20 provides that an employee upon suspension receives 50% of monthly basic salary, and quarterly allowances affected during the period, full housing and transport paid, while lunch allowance will not be paid.

 

Putting these two provisions side by side, I hold that the Claimant is entitled to be paid the following:

 

  1. 50% of her monthly salaries and other quarterly allowances paid during the period of April 21 2016 to November 15 2016.
  2. Full housing and transportation allowances and other benefits due to her from April 21 2016 up to November 15 2016.
  3. Remittance of her own pension contributions to her Pension’s Manager.
  4. All earned and accrued leaves commuted to cash from the period April 21 2016 to November 15 2016.

All payments made after Deductions of all her liabilities and statutory obligations shall be paid to her.

 

Consequently, the Claimant’s relief for two months’ salary in lieu of notice automatically fails and is denied. (See part of the reliefs claimed in relief number 3).

 

The Claimant claims the sum of N6, 222,147.00 as being her unpaid salaries and allowances due to her. This sum, if true, is easy to determine given the sufficiency of information provided by the Claimant as particulars in her paragraph 64 of the Statement of Facts. Based on my findings in the judgment however, the following are her entitlements due to her:

 

  1. Half monthly salaries from April 2016 to November 2016 (8 months being the duration she was placed on administrative suspension) at N52,330.58 per month  (full salary being N 104,661.16 per month) a total of  N418,644.64;
  2. Furniture Allowance for 2016 is N 82,492.00
  3. Medical Allowance for 2016 is N 253,820.00
  4. Professional Body Allowance for 2016 is N 63,455.00
  5. Vehicle Maintenance Allowance for 2016 is N 66,628.00
  6. Dressing Allowance for 2016 is N 107,834.00
  7. Education Allowance for 2016 is N 133,256.00
  8. Housing Allowance for 2016 is N 334,408.00
  9. Transport Allowance for 2016 is N 220,823.00
  10. Holiday Allowance for 2016 isN 349,003.00

Total of the sums in 1 – 10 above equals  N 2,060,363.64

 

Of course, the 13th Month allowance claimed by the Claimant shall not be awarded in view of the fact that sufficient particulars have not been placed before this Court to convince me in that regard. Besides, her benefits do not exceed the month of November when she was formally dismissed.

 

On the claim for 2015 gratuity, and relief 4 for interest of 5% on the sum of N 2,760,526.47, the Defendant’s Counsel relying on exhibits C6, C7, C8 and D7Astated that these documents tell the same tale—which is that exhibit D7B (Collective Agreement between NEABIAI and ASSBIFI) is the foundation for that claim.  Learned Defendant’s Counsel in various arguments said that the Claimant’s Counsel countered the Defendant’s position that exhibit D7B cannot be relied on in dismissing the Claimant without any benefits, because it does not form part of the employment contract between the parties. He questioned how the claim for gratuity and interest on same can now be sustained on that same collective agreement? The Claimant and Counsel on her behalf cannot accordingly, deny the enforceability of exhibit D7B in one breath, and turn around in another breath to seek a relief under the same agreement. The Claimant cannot, as it is proverbially said, approbate and reprobate at the same time. It was submitted that a collective agreement which was not made part of an employee’s conditions of employment is not binding on, or enforceable against the employer.

 

However, a cursory look at Exhibits C6, C7 and C8 indicates clearly and contrarily that the Defendant did in fact; incorporate some of the terms of the collective agreement but with variations with respect to gratuity schemes to its employees. Exhibit C8, an Internal Memorandum which was specifically written to the Claimant dated January 7, 2016 with the subject “Gratuity Statement”, reads as follows:

 

Please recall that in line with industry practice, the board had approved the stoppage of the gratuity scheme in the bank effective January, 1 2015.

 

To this end, the bank agreed with ASSBIFI that a simple interest rate of 5% be paid on the accrued gratuity sum in view of the fact that it will not be paid immediately.

 

We wish to inform you that your total gratuity sum as at January 1 2015 stands at N2,760,526.47 while the agreed interest calculated at 5% simple interest per annum stands at N138,026.32 as at December 30, 2015 (underlining mine).

 

Kindly note that this letter supersedes the earlier memo sent to you on December, 30 2015 and does not serve in any form as collateral for securing any form of loan/facility.

 

Thank you.

 

Haruna Malgwi                                            Sadiq Abu Jibril

HCMD/Compensation Mgt. Unit                          Ag. Head, HCMD

 

The Defendant had significantly tried to escape from the liability of making out payment of this gratuity to the Claimant by arguing in the direction it did. However, it is trite that facts which have already been admitted need no further prove and based on that age old principle of law alone, I am satisfied that the Claimant is entitled to her gratuity as reflected on the face of Exhibit C8 to the sums stated as N 2,760,526.47 which stood to her credit as at the beginning of the 2016 financial year plus the interest of N 138,026.32purportedly at 5% simple interest making a total of N 2,898,552.79.

I hold that the claim for the 2015 gratuity and agreed interest of 5% on the same sum succeeds in view of this admission.

 

In relief 4, the Claimant asked this court to award cost of instituting this suit assessed at N 500,000.00. Generally, such costs are awarded at the Court’s discretion based on what seems fair under the circumstances and guided by the principles of law. See AJUWA vs S.P.D.C.N. Ltd (2011) 18 NWLR (pt 1279) 797 at 840. Order 55(5) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 indicates that the principle to be observed in fixing the amount of costs is that the successful party is to be indemnified for the expenses to which the party has unnecessarily put in the proceedings. In view of the foregoing, I award the sum of N250,000 as cost for instituting and maintaining this action for nearly two years now to the Claimant.

 

For the sake of avoidance of all doubts, this Court makes the following Orders and awards these sums only to the Claimant against the Defendant thus:

 

 

  1. Declaration that the summary dismissal of the Claimant was not unlawful, wrongful, null and or void;
  2. Declaration that the accusation of her withdrawing the sum of N33,653,000.00 by means of fraud through three different account holders is unproven and unfounded;
  3. Order to pay 50% of her monthly salaries and other quarterly allowances paid during the period of April 21 2006 to November 15 2016(the periods she was placed on administrative suspension by the Defendant);
  4. Order to pay full housing and transportation allowances and other benefits due to her from April 21 2016 up to November 15 2016;
  5. Order for the remittance of all pension contributions to her Pension’s Manager;
  6. Order to pay all earned and accrued leaves commuted to cash from the period April 21 2016 to November 15 2016;
  7. Order to make all payments after the Deductions of all her liabilities and statutory obligations;

 

  1. Order to pay any other outstanding or previous salaries or allowances owed before her dismissal in November 2016;

 

  1. The total sum of 1 to 6 being N 2,060,363.64 apart from her pension contributions, if any.

 

  1. Order payment of the sum of N 2,898,552.79 being her gratuity and 5% on the interest as at January, 2016;

 

  1. Award the sum ofN 250,000.00 as cost for instituting this suit.

 

  1. 10% post judgment interest on all these sums i.e.N 4,983,916.43 per annum until final payment.

 

  1. Order Defendant to pay this Claimant, within 30 days of this judgment.

 

This suit succeeds in part only and I so pronounce.

 

 

 

Delivered in Owerri this 30th day of October, 2018.

 

 

Honourable Justice Ibrahim S. Galadima,

 

Presiding Judge.

 

admin

Website:

Related Story