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UGOCHUKWU AGBANUSI VS KEYSTONE BANK LIMITED

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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: WEDNESDAY 13TH JUNE 2018  

 

SUIT NO. NICN/OW/10/2016

 

 

BETWEEN:

UGOCHUKWU AGBANUSI

 

CLAIMANT

                                                      

AND

 

KEYSTONE BANK LIMITED

 

DEFENDANT

             

APPEARANCES:

  1. U.A. EMEAGWARA FOR THE CLAIMANT.
  2. COUNSEL TO THE DEFENDANT ABSENT.

 

JUDGMENT

INTRODUCTION

This suit was commenced by way Complaint [wrongly termed writs of Summons] on 28th April 2016. It was accompanied with the Statement of Facts [wrongly tagged ‘Statement of Claim’] and other originating processes. The claimant filed an Amended Statement of Facts [wrongly tagged ‘Amended Statement of Claim’] on 17th August 2017; and a Further Amended Statement of Facts [erroneously tagged ‘Further Amended Statement of Claim’] dated 21st January 2018 and filed 16th February 2018. This Further Amended Statement of Facts is the last filed. The reliefs claimed in the Further Amended Statement of Facts against the defendant are as reproduced hereunder:

  1. A Declaration of the Court that the purported dismissal of the Claimant as a Branch Manager and from the employment of the Defendant on grounds of “gross misconduct” that is to say “by manipulating customers’ accounts. This you did by the deposit of cheques to build up pseudo turnovers that created a false impression of adequate accounts activities with the aim of obtaining unearned renewals on some existing facilities”, is “wrongful”, misinformed, unlawful, invalid and a breach of his fundamental rights to fair hearing.
  2. An order of the Court setting aside the purported dismissal of the Claimant from the Defendant employment.
  3. An order of the Court re-instating the Claimant to the employment of the Defendant Bank as Branch Manager.
  4. An order of the Court ordering the Defendant to pay the Claimant his arrears of salary from February 2014 to February 2016, when the purported dismissal was handed down to Claimant totaling the sum of N9,000,000.00 (Nine Million Naira) only.
  5. An Order of the Court ordering the Defendant to pay to the Claimant salary from the month of March 2016 till date of judgment.
  6. An Order of Court on the Defendant to defreeze the Account of the Claimant with the Defendant.

 

OR IN THE ALTERNATIVE

 

  1. The sum of N100,000,000.00 (One Hundred Million Naira)

damages for unlawful dismissal and/or loss of job.

 

Against the above, the defendant originally filed Statement of Defence on the 9th November 2016. This was deemed as properly filed and served on 20th February 2017. Eventually, the defendant filed the extant Further Amended Statement of Defence dated 23rd January 2018 and filed 29th January 2018. This Further Amended Statement of Defence was deemed properly filed and served 21st February 2018. The next is to proceed to the testimonies of witnesses to the parties. In doing this, I shall not summarise in detail these testimonies and cross-examinations. I shall refer to the details as the need arises in the course of writing this judgment.

TESTIMONIES OF THE PARTIES

On 16th January 2018 the case was opened with CW1, the claimant, testifying on behalf of himself. The CW1 stated that he filed a written statement on oath on the 28th April 2016, which he identified and adopted as part of his evidence in this suit. CW1 also stated that he filed a second witness statement on oath on 15th November 2016 and adopted it as part of his evidence in this suit. On this date, the CW1 tendered 9 Exhibits CA–CJ. CW1 continued his testimony on the 21st February 2018. He stated that he filed a third witness statement on oath dated 16th February 2018 and adopted it as part of his evidence in this suit. CW1 went further to tender 5 more Exhibits CK–CP. CW1 brought his evidence-in-chief to an end by asking the Court to grant his reliefs. Thereafter, on this same date, CW1 was cross-examined. There was no re-examination.

On 6th March 2018 the claimant closed his case and the defence opened their case with DW1: Imo-Owo Ekanem. DW1 stated that on the 9th November 2016 he made a witness statement on oath. DW1 identified and adopted it as part of his evidence in this suit. DW1 stated further that he made an additional statement on oath on 29th January 2018 and went ahead to adopt it as part of his evidence in this suit. DW1 tendered only Exhibit DWA-A1 and closed his evidence-in-chief. DW1 was cross-examined the same date. There was no re-examination. And the defence closed their case too. The matter was thereafter adjourned to 24th April 2018 for adoption of final written addresses.

On the said 24th April 2018 the adoption could not take place, as parties were not ready. The case was further adjourned to the 8th of May 2018 for the adoption of final written addresses. On the 8th May 2018 the matter came up as adjourned. Counsel to defendant applied to reply on points of law orally since he did not file reply on points of law. This application was granted. Thereafter, counsel to the parties adopted their respective final written addresses and the counsel to the defendant replied orally on points of law. Thereafter, the matter was adjourned to 30th May 2018 for judgment, but the judgment was not ready on this date; and it was further adjourned to 6th June 2018. Yet it was not ready and was subsequently adjourned till 13th June 2018.

This is the history of the case till 13th June 2018, the date of the delivery of this judgment. The next thing for me to do is to adumbrate the cases made by the parties.

ADDRESSES OF THE PARTIES

 

  1. Address of the Defendant’s Counsel

The first in this series is the final written address of the defendant. The defendant’s final written address is dated 26th March 2018 but filed 27th March 2018. OKECHUKWU OTUKWU, ESQ, settled this final written address. The learned counsel formulated two issues for the determination of the case, to wit:

  1. Did the Claimant succeed in establishing that his employment with the Defendant was wrongfully terminated?
  2. If the answer to the above issue is yes, are the reliefs sought by the Claimant such that the Honourable Court can grant in an action of this nature?

Before moving to these issues, counsel submitted on what he called preliminary issues. He started by arguing that the witness statements on oath relied on by the claimant, which are identified in paragraph 1.03, are incompetent because they were all sworn under the “oaths and affirmation Act, Laws of the Federation of Nigeria, 2004”. Counsel submitted that there is no law so-titled hence; these witness statements on oath were based on non-existent law. Counsel cited Macfoy v. UAC Ltd (1961) 3 ALL E.R. to the effect that, you cannot place something on nothing, as it would not stand. Counsel therefore urged the Court to strike out the witness depositions. Counsel submitted that section 13 of the Oaths Act makes it mandatory that oaths must be sworn under the Oaths Act in accordance with the First Schedule of the Act. Counsel submitted that, apart from the wordings of he claimant’s depositions being different, they were not made under the Oaths Act as enjoined by law. Counsel cited Ibe v. Ugochukwu (2010) ALL FWLR (Pt. 504) 1590 at 1592; Obumneke v. Okeke Sylvester (2010) ALL FWLR (Pt. 605) 1945 at 1947; and New Nigerian Bank Plc v. IBW Enterprises Limited (1998) 6 NWLR (Pt. 554) 446 at 454, in urging the Court to strike out the witness depositions on oath. Counsel argued that the effect of striking out these depositions is that the claimant did not prove his claim, making the suit liable to be dismissed. Counsel submitted that, the two certificates of compliance with section 84(4) of the Evidence Act, which also stated that they were sworn to under the Oaths and Affirmation Act, must suffer the same fate, as the depositions on oath; and ipso facto, the computer generated pieces of evidence anchored on them.

Counsel submitted thereafter that apart from the defects earlier identified, the 3rd witness depositions on oath of the claimant also contained evidence of facts not pleaded, especially in paragraphs 3, which deals with cadres, paragraphs 4, 10, 12, 13, 14, 15, 16, 17 & 18 thereof. Counsel submitted that evidence led on unpleaded facts go to no issue. On this, counsel cited Hashidu v. Goje (2003) LPELR-10310 (CA). Counsel argued that if the evidence led on unpleaded facts in 3rd witness deposition were struck out, the claimant’s contention that the disciplinary committee appropriate to his case did not try him would not find anchor. Counsel submitted further that the so-called certificates do not meet the requirements of section 84 of the Evidence Act. On this, counsel cited Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 577-578. Counsel argued that the CW1 failed to give the particulars of the computer used; and as such, the so-called certificates did not satisfy the conditions laid; and hence, the computer generated evidence anchored on them could not be countenanced since the conditions for their admissibility have not been met.

Still on issue of computer-generated evidence, counsel submitted that the computer printout of the claimant’s pay slips for February, 2015 to August 2015 and the computer printout of the claimant’s salary with Keystone Bank account number 1000187553 for September 2015 to March 2016, which are equally computer generated evidence were tendered and not covered by the incompetent certificates. Counsel referred to the claimant’s Further Amended Statement of Claim and the 4th List of Documents [no specific paragraph mentioned], and submitted that, having pleaded that these documents were computer generated, failure to comply with section 84 of the Evidence Act vitiates them and makes them liable to be expunged if already admitted. Counsel therefore urged the Court to expunge Exhibits CN1-CN7 and CP1-CP3.

Counsel submitted that the effect of expunging these documents, especially Exhibit CK [the letter of dismissal] is that, the claimant has not proved that his employment was terminated, which would rob him of cause of action. Counsel submitted that it made no difference that the defendant admitted sacking the claimant On this, counsel cited Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 374 to the effect that, a declaratory action cannot succeed on the admission of the defendant but must be proved. On the basis of the foregoing, counsel urged the Court to dismiss the suit. Counsel thereafter moved to the issues formulated.

ISSUE 1:

Did the Claimant Succeed in Establishing that his Employment with the Defendant was Wrongfully Terminated?

Counsel submitted that it was a gross misconduct for a staff to be caught with the cheques of customers. Counsel stated that this fact was pleaded in paragraph 9 of the Further Amended Statement of Defence, and that, this fact was not denied in the reply of the claimant; and that as such, this fact needs no further prove. Counsel submitted that the only issue that lingers on for the Court to determine is the issue of whether the defendant needed to set up another disciplinary body to try the claimant after the decision of the Disciplinary Committee that recommended caution as his sanction and his recall. Counsel said this fact was pleaded in paragraph 23 of the claimant’s Further Amended Statement of Claim. Counsel submitted that the onus of proof is on the claimant to plead and prove that his employment was not terminated in accordance with the terms of employment. Counsel cited Aji v. Chard Basin Development Authority (2015) 16 NWLR (Pt. 1486) 554 at 568 and Organ v. Nigeria Liquefied Natural Gas Ltd (2013) 16 NWLR (Pt. 1381) 506 at 537 on this point. Counsel submitted that the claimant did not plead the terms of his employment that were breached in terminating the employment in the extant statement of facts. Counsel submitted that paragraph 23 of the Further Amended Statement of Fact, which attempted to plead the terms of contract breached, was vague.

          Counsel submitted that the concomitance of the said paragraph 23 of the Further Amended Statement of Facts is that the defendant ought to set up another disciplinary committee to try him after the police investigation and the committee set up by the defendant had exculpated him; and that, failure to do this breached section 106, subsection 6:10 of the Human Capital Policy [HCP] [Exhibit CB1-CB91]. Counsel argued that a close perusal of the cited section of the HCP and even the whole book did not bear out what is being attributed to it. Counsel submitted further that the claimant having based his grouse on subsection 6:10 of section 106 of the HCP could not turn round to urge the Court to look at other sub-sections of section 106 or other parts of the HCP. Counsel cited Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt. 1291) 581 at 602, paras. D-G to the effect that, parties must be confined to their pleadings in order to eschew springing surprises. Counsel submitted that since there was no term mandating the defendant to set up another disciplinary committee, the defendant was right in dismissing the claimant after a review of the report of the disciplinary committee, which recommended a lighter sentence. Counsel argued that the compliant of the claimant that his right to fair hearing was breached because he did not appear before another panel is therefore unfounded.

          Counsel argued further that the mere pleading and tendering of the letter of appointment [Exhibit CA-CA6] and the HCP would not avail the claimant if he fails to point to exactly the terms that were breached as this would amount to dumping. Counsel cited Baitach & Anor. v. Shadafi & Ors. (2012) 13 NWLR (Pt. 1317) 396 at 413 and Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 367-368: on the need to point out the parts of documents that support a party’s case and the effect of dumping. Counsel submitted that once a document is dumped, the judge lacks jurisdiction to sit back in his chambers to engage on a voyage of discovery to investigate what the party failed to do in the open court. Counsel argued that any court that did this breached section 36 of the 1999 Constitution.

          Counsel argued further that, during trial, the claimant raised unpleaded issue of the panel that tried him not being the proper panel to try a person of his cadre in the defendant’s employment and that it was the Managing Director that ought to have approved his termination. Counsel referred to the testimonies of the claimant under cross-examination on 21/2/2018 and 6/3/2018. Counsel argued that the pleadings in paragraphs 15 and 16 of the defendant’s Further Amended Statement of Defence alongside paragraph 4 of the Reply of the claimant filed 15/11/2016 could not justify the evidence relating to cadre. Counsel drew attention to the fact that the claimant never amended his reply even though; the defendant amended its Statement of Defence twice. Counsel submitted that what could be gleaned from paragraphs 15 and 16 of the Amended Statement of Defence and paragraph 4 of the Reply is that issue was joined on whether the Executive Committee/Management of the defendant existed and actually sat on the decisions of the Disciplinary Committee and hence, the evidence of cadre, on which issue was not joined therefore, goes to no issue. Counsel cited Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 196. Counsel therefore urged the Court to expunge from the record the evidence of CW1 and DW1 relating to cadre and the appropriate disciplinary committee.

          Counsel thereafter moved to the issue of whether the Executive Committee/Management of the defendant existed and argued that in paragraphs 13 and 14 of the DW1’s Witness Statement on Oath of 9/11/2016 attached to the Amended Statement of Defence and paragraph 4 of the DW1’s Additional Deposition of 29/1/2018 attached to the Further Amended Statement of Defence, DW1 gave evidence of the existence and powers of the Executive Committee/Management and tendered the extracts of the meeting of the said committee as Exhibit DWA-A1 and that, the claimant never challenged these pieces of evidence during the cross-examination of DW1. Counsel submitted that, evidence on crucial issue not challenged at cross-examination is deemed admitted. Counsel therefore urged the Court to act on the unchallenged evidence that the Executive Committee existed and reviewed the findings of the disciplinary committee that tried the claimant and returned a verdict of dismissal. Counsel later cited subsection 6.9 of Exhibit CB1-CB91 at page 49 and the extracts of the meeting of Executive Committee/Management as proving the existence of the Executive Committee/Management.

          Counsel argued further that since the DW1 has given evidence that the claimant was in possession of customers’ cheques, and that this constitutes gross misconduct, and the claimant did not cross-examine DW1 on this, the evidence is deemed admitted. Counsel cited U.B.N. PLC v. Soares (2012) 11 NWLR (Pt. 1312) 550 at 575 to the effect that an employer is at liberty to summarily dismiss an employee that commits gross misconduct. Counsel argued that arising from the foregoing, the claimant could not complain of wrongful dismissal. Counsel argued further that, the heavy weather the claimant made of the Police Report [Exhibit CL1-CL8] and of the Disciplinary Committee Report not indicting him is of no avail since the claimant was not dismissed on the basis of committing any criminal offence, but on the basis of infringing the rules of the defendant/employer, which forbade a staff having in his possession signed cheques of customers; and that the Disciplinary Committee Report [Exhibit CJ1-CJ8], which recommended caution actually indicted the claimant since caution is one of the sanctions in subsection 6.3 of section 106 at page 46 of the HCP, contrary to the assertion of the claimant that he was not indicted. Counsel submitted also that the Executive Committee/Management, the ultimate authority, which rendered a verdict of dismissal, considered the recommendation of the Disciplinary Committee, which is not final.

          Counsel now moved to the issue of the loan facilities granted to Alba Petrogas Ltd and Matrix Gold Ltd and submitted that the issue of these loans has no bearing on the issue of whether the dismissal of the claimant was wrongful and that what has bearing, and on which issue had been joined, is whether any rule or terms of employment of the claimant was breached in dismissing the claimant. Counsel submitted further that subsection 6.8 of section 106 of the HCP did not make it a precondition that the staff must have committed malfeasance with regard to any loan before he could be dismissed and that what the subsection provides is that, the staff must be placed under recovery suspension for the subsection to apply to him; and that, this was observed in the case of the claimant as evident in Exhibit CC. Counsel finally urged the Court to resolve issue 1 in favour of the defendant and against the claimant. Counsel thereafter moved to issue 2.

ISSUE 2:

If the Answer to the above Issue is yes, are the Reliefs sought by the Claimant such that, the Honourable Court can Grant in an Action of this Nature?

Counsel commenced by submitting that even if the Court per chance holds that the claimant has proved his case, the reliefs prayed are not grantable. Counsel argued that relief A is vague and incomprehensible as couched. Counsel argued that since relief A is anchored partly on breach of fair hearing, which the claimant failed to prove, whereas the defendant, via Exhibit CH, the letter inviting CW1 to appear before the Disciplinary Committee, showed that he was afforded fair hearing, the only thing for the Court to do, since it cannot severe the issue of fair hearing from the relief, is to dismiss the whole of relief A. Counsel submitted with regard to reliefs B and C that, they are not grantable because the relationship between the claimant and the defendant is that of master/servant and that the employment did not enjoy statutory flavour. In support of the submission counsel cited U.B.N. v. Soares [supra]; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; NNPC v. Idoniboye-Obu (supra); Shitta-Bey v. Federal Public Service Commission (1981) b1 SC 40. On the basis of the foregoing, counsel submitted that since the employment of the claimant is not one clothed with statutory flavour, reliefs B and C must be dismissed.

Counsel then moved to relief D. Counsel argued that by the pleading before the Court and the evidence adduced at trial, the claimant made a case that his salary was slashed by 50% in February 2015, whereas, relief D asked for refund from February 2014. Counsel submitted that this self-contradiction is made worse because the claimant also made this claim in his Statement on Oath deposed 28th April 2016, which is contrary to the latter one thus, ensuing in contradictory evidence. Counsel also submitted that the claimant did not arithmetically justify how he arrived at the figure of N9,000,000 being claimed as arrears of salaries. Counsel then cited Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61 at 74 to the effect that a witness that gives materially inconsistent evidence before the court is not worthy of credibility. On these premises, counsel urged the Court to dismiss relief D.

Counsel moved to relief E and submitted that, since the contract between the parties gave room for termination before the end of tenure, the claimant is not entitled to relief E but only to one month salary in lieu of notice, if the Court comes to the conclusion that his termination was wrongful. Counsel submitted that Exhibit CA-CA6 evidenced the fact that the contract between the parties is terminable at the issuance of one month’s notice. On this proposition, counsel relied on U.B.N. v. Soares [supra] 573; and Western Nigeria Development Corporation v. Abimbola (1966) ALL NLR 150. Counsel therefore urged the Court to refuse relief E. Counsel thereafter moved to relief F. On this, counsel submitted that the relief is not grantable because there was no iota of evidence led to show that the account of the claimant was indeed frozen.

Counsel moved to relief G and argued that since the contract between the parties is terminable at will, the claimant is logically not entitled to relief G. Counsel also submitted with respect to relief G that for the claimant to succeed in relief G, he must show that his employment with the defendant is for a fixed period and that the claim of ‘loss of job’ creates the impression that the defendant is under obligation to employ the claimant, whereas, the only obligation the defendant owed the claimant is to terminate his employment in accordance with the terms of the employment; and that, where the Court finds that the claimant was not dismissed in accordance with the terms of his employment, the remedy lies in the award of one month notice. Counsel submitted that the claimant equally failed to show how he arrived at the figure of N100million being claimed under relief G or whether there was an agreement to that effect in the event of wrongful termination. Hence, counsel urged the Court to dismiss this relief.

Finally, counsel submitted that since the employment of the claimant is not tainted with statutory flavour, in the event that the Court finds that the dismissal is wrongful, the Court could not set aside the dismissal or order reinstatement. Thus ended the address of the defendant’s counsel. I shall now turn to that of the claimant’s counsel.

  1. Address of the Claimant’s Counsel

In the final written address of claimant settled by PRINCE EMEAGWARA UCHE A., six issues were formulated for the determination of the case, to wit:

  1. Whether the Claimant proved by balance of admitted evidence in the trial that he was a staff of the Defendant and subsequently dismissed. [sic]
  2. Whether the Defendant was right under its relevant HCP Manual Rules, Exhibit CB1-CB91, as evidenced at the trial, right to deny the Claimant his salary after the expiration of the initial recovery suspension period of Three (3) Months up to the point of dismissal. [sic]
  3. Whether the Claimant is entitled to his usual salary and the rest of the 50% salary during the Three (3) months “Recovery Suspension” period, up to the month of February 2016 in the circumstances. [sic]
  4. Whether the appropriate Disciplinary Committee to try the Claimant, a Deputy Manager, by rank of employment, for any infraction of the Defendant Bank Rules is Head Office Disciplinary Committee or the Executive Committee, and if negative, [sic]
  5. Under what circumstances can the Defendant Executive Committee (EXCO), under the Defendant HCP Manual, proceed to hear and review decisions and recommendations of the appropriate Disciplinary Committee. [sic]
  6. Whether the dismissal of the Claimant by the recommendation of the Defendant Executive Committee is not wrongful, ultra vires the powers of the Executive Committee and reasons adduced unsupported by the evidence heard by the appropriate Head Office Disciplinary Committee. [sic]
  7. Whether the Claimant is entitled to damages in the circumstances for wrongful dismissal. [sic]

Issues nos. 1, 2 and 3 were argued together. Counsel replied on the objection that the witness statement on oath of the claimant were incompetent because it was made pursuant to the Oath and Affirmation Act, which is inexistent that, that mere fact would not render the witness statements on oath incompetent. Counsel also submitted that of the three witness statement on oath filed by the claimant only the third and last one filed on 16th February 2018 was affected by this vice and hence, was the focus of the objection. Counsel argued that the cases cited on this issue by the objector were all irrelevant as the facts were clearly different. Counsel submitted on the authority of Ekpenetu v. Ofoegbu (2012) 15 NWLR (Pt. 1323) CA 276, 308-308, paras. C-B that what mattered is substantial compliance with the Oaths Act and not word-for-word recitation of its contents and that, as such, the addition of the words “Oaths and Affirmation Act, Laws of Federation of Nigeria 2004” would not affect the witness depositions on oath, which substantially conformed to the requirements of the Oaths Act. Counsel submitted that the witness depositions on oath of the claimant should be declared competent on the additional ground that Order 1, Rule 9(3) of the National Industrial Court (Civil Procedure) Rules 2017 enjoins this Court to disregard technical objections that could lead to miscarriage of justice, such as in the instant case.

On the issue on non-compliance with section 84(4) of the Evidence Act in tendering the computer generated evidence, counsel submitted that the requirements of section 84(4) were complied with; and that, in addition, it is too late for the defendant’s counsel to object since he failed to raise the objection at the point at which these documents were to be tendered, as section 84(4) of Evidence Act does not say such documents are legally inadmissible but that foundations should be laid before their admittance. Counsel cited Isa kassim v. The State (2017) LPELR-42586 (SC) 28-31, paras. E-A and MTN Nigeria Communications Ltd v. Aluko (2014) ALL FWLR (Pt. 732) 1701 at 1729 to buttress his point; and on their bases, urged the Court to deem as properly admitted Exhibits CC, CH and CK.

Counsel argued further that the claimant pleaded his letter of appointment [Exhibit C1-C6] and that at page 2 thereof at the title “Code of Conduct” the HCP Manual was expressly mentioned as also regulating the employment of claimant and that this manual was specifically pleaded too in some paragraphs of the Claimant’s Statement of Facts besides pleading it by incorporation and that this document was admitted without objection as Exhibit CB1-CB91. Counsel submitted that, where a series of documents are relied upon, it is only necessary to plead the document that constitute the material fact and that it is not necessary to plead the mere evidence by which the material fact in issue is to be established. On this line of reasoning counsel cited Hashidu & Anor v. Goje & Ors. (2004) ALL FWLR (Pt. 228) 662 at 633-634. Counsel submitted that a claimant is by law only required to plead facts and not evidence. On this, counsel relied on Order 30, Rule 3(1) & (11) of the NICN Rules and Thanni v. Saibu (1977) 2 SC, 89 at 114. 

Counsel also argued that by virtue of Order 38, Rule 15(B) of the NICN Rules, when a document is admitted without objection, it is taken as read hence; the issue of dumping would not arise. Counsel argued that on the basis of the foregoing, the failure of the defendant to pay the claimant his full salary for the three months of recovery suspension and the remaining 50% salary withheld for the same period are contrary to the HCP Manual [Exhibit CB1-CB91]. Counsel placed reliance on section 106, Rule 6.8 of the HCP Manual. Counsel argued that by the state of the pleadings, the defendant admitted paying the claimant zero salary after the expiration of the initial three months for the period of May 2015 to February 2016. Counsel referred the Court to paragraphs 10(B) and 10(C) of the Further Amended Statement of Claim and paragraphs 6, 7,8,9,10&11 of the 3rd Claimant’s Statement on Oath and paragraphs 9,10,11&12 of the claimant’s 1st Statement on Oath of 28th April 2016. Counsel argued that all these unwholesome labour practices were never denied in the defendant’s Amended Statement on Oath.

Counsel submitted further that while the defendant only has the power, by virtue of Rule 6.8 of the HCP Manual to suspend the claimant for just three months that the same rule provides that thereafter, the claimant should to be reinstated and paid the balance of his withheld salaries and allowances for the period of suspension. Counsel argued that the suspension of the claimant at half salaries for three months and his retention in service thereafter till the month of February 2016 on zero salary was most inhuman. Counsel argued that since the defendant could not justify these acts within their rules and the claimant has summed up the total amount at N9,087,771.52 in his pleadings, the defendant is liable to pay. Counsel argued that the attack on the ground that there was discrepancy in the evidence led and the pleadings of the claimant on the issue of February 2014 would not avail the defendant since it was just a typographical error made by counsel that remained unnoticed and that, the evidence of claimant had been consistent on February 2015 to February 2016. Counsel submitted that the Court had power to award on February 2015 to February 2016 once that is proved by virtue of Order 1, Rule 9(3) of the NICN Rules. On how the claimant arrived at the total amount being claimed, counsel submitted that once the claimant has tendered Exhibit C1-C6, which gives the claimant’s annual salary, he has satisfied the requirement of how he arrived at the total amount being claimed. Counsel argued further that where the claimant claimed more and proved this at the trial but eventually asked for less, the Court is at liberty to award the lesser amount and deem the excess as abandoned. Counsel cited Ekpeyong v. Nyong [WITHOUT SURPLYING FURTHER DETAILS] to buttress his point.

Counsel argued that the justification provided at paragraph 21 of the Defendant’s Further Amended Statement of Defence that the areas of salaries and allowances were withheld because of the non-performing loan granted by the claimant to Alba Petro Gas Products Limited and Matrix Gold Limited should be discountenanced because the parties were at consensus ad idem in evidence at trial that the defendant had the sole responsibility to grant or refuse the grant of loan, and not the claimant. Counsel submitted that there is no rule of the defendant’s HCP Manual or conditions of service that provides that an employee would be held personally liable for a non-performing loan granted to customers by the defendant. Counsel submitted that the claimant could recommend but that the ultimate decision to approve lies with the Credit Unit and Head Management of the defendant; and that, granting loan is a process involving many staffs of the defendant and, as such, the claimant could not be held singularly liable; since, if the defendant had made profit from the loan in issue, it would not have shared same with the claimant who is only entitled to his salaries and emoluments.

Still on this issue, counsel pointed out that all the loans in issue had collaterals, which were admitted by the defendant at trial to be intact and that the defendant had not said it had exercised its right on the collaterals and that they could not satisfy the loans to justify its attachment of the claimant’s salaries and allowances. Counsel argued that this behavior of the defendant is most unconscionable and preposterous inhuman labour practice. Counsel argued that this is more so since, at the trial of the claimant at the Head Office Disciplinary Committee, the issue of the delinquent loans came up and the claimant was exculpated. Counsel referred the Court to Exhibit CJI-CJ8, particularly at page 30-32 thereof. Counsel thereafter urged the Court to resolve issues nos. 1-3 in favour of the claimant. Counsel thereafter moved to issues 4-6.

Issues 4,5, & 6 were also argued together. On the issue that the defendant is at liberty to summarily terminate the appointment of its employee with or without reason, counsel submitted that while this might be correct, it is limited by the exception that where, however, the employer gives a reason for termination, he is stuck with the reason offered. Counsel argued that such reason must be justified within the compass of Exhibits C1-C6 and CB1-CB91 and that, anything short of that would ground judgment for the claimant in wrongful dismissal. Counsel argued that the burden of proof in the instant rests on the defendant and not the claimant to justify the reason offered. On this submission, counsel referred the Court to Institute of Health, Ahmadu Bello University Hospital Management Board v. Anyip (2011) ALL FWLR (Pt. 586) 445 at 453, paras. C-D; Honika Sawmill (Nig) Ltd v. Hoff (supra); and Fakuade v. O.AU. (1983) 6 SCNJ (Pt. 1) 35 at 40 SC.

Counsel submitted that the case of the claimant is that the defendant’s Executive Committee has no vires to try the claimant or review his case when the claimant did not appeal to it, more so, no vires to find the claimant liable on grounds of criminal allegations. Counsel submitted that by virtue of Exhibits C1-C6 and CB1-CB91, the claimant was a Middle Management Staff as clearly shown in the 3rd witness statement on oath of the claimant filed 16/02/18. Counsel asserted that this was affirmed under cross-examination by the DW1; and submitted that, when this assertion is viewed along with the pleadings and the deeming the exhibits as read, the counsel to the defendant would be wrong to argue that the claimant failed to plead his cadre. Counsel argued further that section 106, Rule 6.7 of the HCP Manual outlined clearly the appropriate Disciplinary Committees for each of the different groups and that, since the claimant, as Deputy Manager, was below the AGM Level, approval of the recommendation of disciplinary measures against him must be to the Senior Management Disciplinary Committee. Counsel submitted further that by virtue of Rule 6:10 of section 106 of the HCP Manual, dismissal must be effected in accordance with the sanction grid of the defendant and as recommended by the appropriate DC. Counsel argued that the effect is that, issues of discipline/dismissal are rigidly compartmentalized within the compass of the appropriate disciplinary committee for the different cadres in the defendant; and that, failure to adhere to this would vitiate such a disciplinary measure and render the dismissal wrongful.

Counsel submitted with respect to the argument of counsel to the defendant that a lie was put to the testimony of the claimant that the Executive Committee/Management did not exist by the unchallenged extracts of the meeting admitted in evidence as Exhibit DWA-A1 and subsection 6.11 at page 49 of the HCP, which clearly authenticated the existence of he Executive Committee/Management that, the issue at stake was misconceived. Counsel submitted that the issue was that the EXCO could only sit if the claimant had appealed to it over the decision of the appropriate committee and that the claimant did not appeal to it. Counsel therefore submitted that the existence or not, of the EXCO is irrelevant in the case at hand; and that, what is relevant is that the EXCO has no vires to meddle in the case of the claimant until there was an appeal to it. Counsel submitted that Rule 6.11 cited by counsel on the other side deals with appeals and their consequences, which incidentally is not the case here and that it is clear from this that, it is only when there is an appeal by the claimant that the EXCO could assume jurisdiction to delve into the case of the claimant. Counsel argued that the justification of the dismissal of the claimant pursuant to this usurpation as evidenced in Exhibit DWA-DWA1 is therefore ultra vires the defendant; and that, as a result, the defendant has failed totally to justify the reasons given for the dismissal of the claimant. Counsel submitted that consequently, the dismissal is liable to be set aside.

Counsel argued that a perusal of Exhibit CJ1-CJ8, which is the finding of the Head Office Disciplinary Committee showed that there was nothing to substantiate the allegations against the claimant and that the claimant was only found liable for being in possession of customers’ cheques, and as such, recommended caution against the claimant for this reason only whereas, Exhibit DWA-DWA1, which is the result of the EXCO meddling, stated that it was dissatisfied with the findings of the Head Office Disciplinary Committee and recommended dismissal, upon which Exhibit CK was issued on the basis that investigation have established that the claimant abused his office by manipulating customers’ accounts. Counsel posed: where did the defendant get this new piece of evidence? Counsel submitted that the defendant failed to prove this at the trial. Counsel contended that the phrase “holding customers [sic] instrument” could not be interpreted by any stretch of imagination as meaning “manipulation of customers’ account”. Counsel argued that the mails and circulars by which the staffs were enjoined to eschew holding customers’ cheques, which counsel to the defendant stated constituted gross misconduct were never tendered at the trial. Relying on Olanrewaju v. Afribank Plc (2001) FWLR (Pt. 72) SC 2000 at 2017, paras. A-E, counsel argued that since the defendant gave this reason for dismissing the claimant, they are duty-bound to justify it by adducing evidence in that regard. Counsel submitted that counsel’s written address, however brilliant, could not take the place of evidence. Counsel argued that gross misconduct is a question of fact and not that of assertion in the written address of counsel.

Counsel submitted that “manipulating customers accounts” given in Exhibit CK as the reason for dismissing the claimant amounts to an allegation of crime; and more so, with reference to Exhibit DWA-DWA1. Counsel cited Olanrewaju v. Afribank (supra) and Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 SC and other authorities to the effect that, before an employer could lawfully dismiss a staff on allegation of crime, the crime must have been tried in court and the staff found guilty. Counsel therefore urged the Court to set aside the dismissal. Counsel then moved to his issue 7.

On issue 7, counsel submitted that where an employee demonstrates to the Court that he was unlawfully terminated he would be entitled to damages. Counsel thereafter argued that the attack on relief A of the claimant on account of being vague was misconceived in that the words quoted were verbatim copy of extracts from Exhibit CK which is the reason given for the termination of the claimant, which the claimant merely repeated and invited the Court to view as wrongful, invalid and as being in breach of fundamental right to fair hearing. Counsel argued in respect attacks on the claimant’s reliefs B & C, which counsel to the defendant said are not grantable that, the claim for areas of salaries is different from damages of N100million while the claim for damages is again different from the claim for arrears of salaries from March 2016 till the judgment of this Court in this case. Counsel submitted that with regard to areas of salaries, this Court has always granted it where the claimant is able to prove that his termination was unlawful. On this, counsel cited Swiss-Nigerian Wood Industries Ltd v. Bogo (1970) NSCC 235 at 242; and British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 276 to the effect that, where termination is based on a character-damaging allegation, which turns out to be unproven, the claimant is entitled to damages beyond the mere length of notice.

Counsel submitted that evidence before the Court and the pleadings of the claimant showed that the claimant worked conscientiously for the defendant and won awards; and that during the three-month suspension, when he was placed on 50% salary, he continued to work conscientiously and even so, after the three months when he was placed on zero salary from May 2015 to February 2016 when he was labeled as a criminal and dismissed from service. Counsel also contended that evidence before the Court showed further that the defendant caused the claimant to be arrested, detained and humiliated by the Nigeria Police over allegation of credit fraud which turned out to be hoax; and also faced the ignominy of appearing before the Head Office Disciplinary Committee, which equally gave him a clean bill, and yet, upon all these, the defendant, courtesy of its EXCO, proceeded to dismiss the claimant on the injurious ground of manipulation of customers’ accounts via Exhibit CK. Counsel referred the Court to paragraphs 6,10,12,13,14,15,16,18,22,31,32 & 33 of the Further Amended Statement of Facts and the claimant’s Statements on Oath.

Counsel submitted that the conducts of the defendant herein are very reprehensible and condemnable and that the claimant’s reasonable expectation of job security was cruelly dashed. Counsel submitted that, in view of the foregoing, the contention that general damages are not grantable is untenable. Counsel went ahead to cite Malik v. Bank of Credit & Commerce Int’l SA (in Liq) (1997) 3 ALL ER; and Bank of Credit & Commerce Int’l SA (in Liq) v. Ali (No.2) 1999 4 ALL ER 83 at 88 to the effect that, damages were awarded by the English courts to assuage dent to reputations of employees as a result of wrongful dismissals. Counsel also cited Bello v. A-G Oyo State (1986) 12 SC 1, (1986) 5 NWLR (Pt. 45) 828 to the effect that, the Supreme Court, while awarding damages for wrongful execution of the accused while his appeal was pending, held that, the mere fact that damages had not been awarded before should not be a reason for not awarding one where it is clear that a wrong was committed since, where there is a wrong, the court must create a remedy to assuage the wrong. Counsel subsequently signed off on issue number 7 by asking the Court to grant it in favour of the claimant and against the defendant. Counsel submitted that on reliefs C,D,E,&F and argued that the NICN as a Court of record could still grant them in proven cases but in the alternative it should grant substantial damages against the erring defendant on the authority of A-G Oyo State [supra]. Thus, counsel ended his final written address for the claimant. I shall now move to reply on points of law by the counsel to the defendant.

  1. Reply on Points of Law

The defendant’s counsel did not file a reply on points of law as required by the rules of this Court. However, on the 8th May 2018 when the matter came up for adoption of final written addresses, counsel to the defendant: OKECHUKWU OTUKWU, sought the leave of the Court to make oral reply on points of law and leave was granted as requested. Let me now summarise what counsel said in his parole reply on points of law.

Counsel mainly touched on the issue of “taken as read”, and argued that the concept is not a licence for the Court to begin to investigate documents tendered to find out the specific terms of the contract breached. Counsel relied on Terav v. Lawal (1992) NWLR (Pt. 231) 569 at 590. Counsel also argued against issues 4,5,and 6 formulated by the claimant’s counsel that they did not flow from the pleadings of the parties, and cited Chidoka v. First City Finance Company Ltd (2013) 5 NWLR (Pt. 1346) 144 at 162, and urged the Court to discountenance the submissions made on these issues. Counsel thereafter ended his oral reply on points of law.

Having carefully adumbrated the addresses of counsel to the parties, the next thing to do is to apply the law to the facts of the case and the evidence presented to the Court to arrive at an appropriate decision. Before doing this, let me state that I have carefully read all the processes filed in this case and digested their contents. I have also carefully studied the pleadings and the evidence adduced at trial alongside the exhibits tendered before now and taken everything into consideration in arriving at my decision. In the course of given reasons for the decision, I shall make references to the pleadings, evidence on record and the addresses of counsel as occasions demand.

DECISION OF THE COURT

In arriving at decision I shall take the two issues formulated by the defendant’s counsel in addition to an additional one to be formulated by me. I consider the three issues succinct and covering the essence of the case in comparison to those formulated by the claimant’s counsel, which are legion and verbose. The additional issue formulated by me is based yet on what the defendant’s counsel called preliminary issues. This additional issue shall be issue 1 while the two issues formulated by counsel to the defendant, and adopted by me, shall be issues 2 and 3 respectively. The three issues are therefore thus:

  1. What is the fate of evidence adduced by the claimant at the trial of this case?
  2. Did the claimant succeed in establishing that his employment with the Defendant was wrongfully terminated?
  3. If the answer to issue 2 is yes, are the reliefs sought by the claimant such that, the Honourable Court can grant in an action of this nature?

 

ISSUE 1:

What is the Fate of Evidence Adduced by the Claimant at the Trial of this Case?

Under what counsel to the defendant tagged preliminary issues, attacks were made on the pieces of documentary evidence essential to the case of the claimant and the Court urged to discountenance or expunge them on the grounds that the witness depositions were made under the wrong law and that other pieces of documentary evidence failed to comply with the mandatory provisions of section 84 of the Evidence Act. These objections are coalesced under the banner of issue 1 formulated above. In reply, counsel to the claimant has essentially argued that it is too late in the day for objections to be raised after the pieces of documentary evidence were admitted without protest and that, the mere fact that the 3rd witness statement on oath was made with reference to the Oath and Affirmation Act would not vitiate it, because the said witness statement on oath complied substantially with the Oaths Act.

On the issue of the witness statements on oath not being made in total and full compliance with section 13 of the Oaths Act and therefore incurably bad, I cite Okpa v. Irek & Anor. (2012) LPELR-8033 (CA) 9, paras. C-G, where the Court of Appeal held, and I quote:

“The Tribunal rejected the tendering of the witness statement on oath as it did not conform with the requirements of section 13 of the Oaths Act.

This Court has consistently held that a witness statement on oath is different from an affidavit evidence.

‘An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of unchallenged evidence… On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine, the witness is taken as the true situation of facts contained therein.

‘The Tribunal was therefore led by both parties to adopt a wrong procedure of turning the witness statement as exhibits which were eventually rejected. The only way facts in a witness statement can be jettisoned is by cross examination.”

It is this same section 13 of the Oaths Act, which the counsel to the defendant relied on to anchor his objections against the witness statement on oaths filed by the claimant that was also in issue in the above case. So, the above case is on all fours with the present case. This authority was decided in 2012 while the latest of the three cases cited by the defendant’s counsel was decided in 2010. Lending my voice to that of the Court of Appeal in Okpa v. Irek [supra], it is my humble view that whatever defect is inherent in the form of oath on the witness statement is cured by the second oath taken in court before the adoption of the witness statement, which makes it admissible in the court. It should be noted that such witness statement only becomes evidence, as rightly observed by the Court of Appeal, after being subjected to the forensic fire of cross-examination. What is more, it is not the argument that these witness statements did not contain oaths or were not sworn before a commissioner for oaths: the complaint is that they were wrongly sworn pursuant to the Oaths and Affirmation Act: a non-existent statute.

It is has long being the law that a right or relief appertaining to a party could not be denied the party simply because such party applied for it under the wrong law or no law at all – see Falobi v. Falobi (1976) LPELR-1236 (SC) 15, paras. D-F. Hence, the claimant who dutifully deposed to the witness statements on oaths before a commissioner for oaths but merely cited the law wrongly must be taken to have substantially complied with section 13 of the Oaths Act because, apart from wrongly stating the law under which the oath was made, no other infringement was alleged against him. He cannot therefore be deprived of the benefit of having his evidence considered by the Court in arriving at a just decision in the case. Acceding to this technical objection would amount to slaughtering justice on the altar of technicality. Besides, the stage at which the objection is being raised must also bear on the decision of the Court on the objection. The counsel to the defendant ought to have raised the objection before proceeding to take steps on the merit of the case. These witness statements were adopted in his presence without objection. He went further to cross-examine the witness on them. Therefore, it is too late in the day to urge the Court to discountenance or expunge these witness statements. Counsel has waived his right to object by opting to cross-examine on the witness depositions he now sought to impugn. For this and the other reasons I have offered above, I hold that the objections of the counsel to the defendant on the witness statement on oath lack merits. They are accordingly discountenanced. The three witness’ statements on oath are therefore properly before the Court; and the Court shall take cognizance of them.

I now move to the objection raised on failure to comply with section 84 of the Evidence Act with regard to computer-generated pieces of documentary evidence. I waste no time in agreeing with the counsel to the claimant that this objection is too late in the day. The time to object to the admissibility of documents is when the documents are produced for admission and not after it has been admitted – see Archibong v. The State (2006) LPELR-537 (SC) 27, paras. A-C. Section 84 of the Evidence Act is merely directory and not mandatory. It does not say a computer-generated document is intrinsically bad if it fails to comply with section 84 of the Evidence Act but only directed that a procedure be followed or a condition be satisfied before it is tendered in court. This procedural pre-condition is made for the benefit of the person or party against whom the document is to be tendered and not for the benefit of the entire public. It is to ensure that these documents are not fakes. Hence, it is a right that can be waived; and has been waived in the context of this case when the counsel to the defendant failed to object to their admissibility at the point of being admitted – see Raji v. University of Ilorin & Ors. (2006) LPELR-8242 (CA) 14, para. A. All the documents in issue are documents emanating from the defendant.

By this condonation, the claimant has been put in a position whereby it is now impossible for him to retrace his steps on the admitted computer-generated evidence. Hence, the present objection is an ambush which the law forbids by enjoining that objections are raised to the admissibility of documents before they are admitted so that, the party tendering them can, after hearing the objection, decide whether or not to withdraw the document and make amends and re-present or reply to the objection and defend the documents in the form that elicited the objection. The defendant has not denied the authenticity these documents. So, the objection could be seen for what it is: crass technicality. This view is strengthened by section 12 (2) (b) of the National Industrial Court Act 2006 [NICA], which gives the Court vires to admit a document in the interest of justice notwithstanding its non-compliance with the provisions of the Evidence Act. This provision of the NICA is given imprimatur by section 3 of the Evidence Act itself, which provides that “Noting in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.” The NICA is one such legislation that is validly in force in Nigeria. Thus, all the computer-generated evidence admitted without protest and which are not being challenged as fake, but merely on the technical ground that they did not fully comply with section 84 of the Evidence Act, are deemed as properly admitted. The defendant has not shown any injury she stood to suffer by admitting documents emanating from her.

I now move to the issue of unpleaded facts raised by the counsel to the defendant. As a result of this issue, objection is raised to paragraphs 3, 10, 12, 13, 14, 15, 16, 17 & 18 of the claimant’s 3rd witness statement on oath. The said paragraph 3 of the witness statement on oath deals with the issue of cadre. This shall be revisited anon under issue 3. Paragraph 4 of the 3rd witness’ statement on oath deals with the issue of HCP Manual, which is pleaded in paragraphs 10(B), 23, & 27 of the Further Amended Statement of Facts. Paragraphs 12-17 deal with the issue of non-performing loans. This issue was pleaded in paragraphs 7 & 8 of the Further Amended Statement of Facts. I wonder how the counsel to the defendant came about evidence being given on unpleaded issues or facts. Facts are pleaded and not the evidence by which they are to be proved in court. Pleadings and evidence are not therefore the same – Lawal v. Union Bank of (Nig.) PLC & Ors. (1995) LPELR-1762 (SC) 24, paras. A-C. It is therefore not necessary to plead evidence – Trade Bank PLC v. Yisi Nigeria Limited (2005) LPELR-7560 (CA) 52, paras. B-C. Pleadings and evidence though closely related are not necessarily coterminous. Pleadings are concise summaries of the facts giving rise to the cause of action or defence while evidence is the means of proving these facts, and as such, evidence need not be an exact repetition of words contained in the pleadings and may even be more elaborate than pleadings, once there is factual basis for such elaboration in the pleadings, no infraction has been committed – Roba Investment Ltd v. Arewa Metal Containers Ltd (2010) LPELR-4900 (CA) 29, paras. E-F. I cannot therefore find any evidence given on unpleaded facts or more still, evidence at variance with pleadings. From my careful scan of the Further Amended Statement of Facts, I have found that all the depositions in the 3rd witness’ statement on oath attacked have their fulcrum planted firmly in the Further Amended Statement of Facts so, the objection therefore lacks merits and is accordingly dismissed. All the paragraphs of the 3rd witness’ depositions on oath attacked remained clearly unscathed. And I so hold.

Having carefully dealt with all the preliminary issues connected with the evidence adduced by the claimant in this case let me now proceed to issue 2.

ISSUE 2:

Did the Claimant Succeed in Establishing that His Employment with the Defendant was Wrongfully Terminated?

In delving into issue 2, the first point I would like to take is that dealing with the exact claim before the Court. In doing this, the first port of call is the Further Amended Statement of Facts dated 21st January 2018 and filed 16th February 2018. This is the extant Statement of Facts grounding the claim before the Court. I found paragraphs 23, 27, 28, and 29 of the Further Amended Statement of Facts pertinent. The gist of these paragraphs, taken together is, the complaint that the claimant was dismissed without basis or fair hearing and on the unproven allegation of manipulating customers’ accounts contrary to the defendant’s rules of engagement with the claimant; and that, the claimant committed no criminal offence to warrant his dismissal. Clearly, from these paragraphs, three grounds of complaints were made against the defendant as grounding the cause of action in this case: these are (1) that the defendant did not observe its rules of engagement with the claimant in dismissing the claimant, and (2) that the reasons offered for the dismissal was unfounded as no trial was conducted to arrive at them, and (3) that having not committed a criminal offence, the claimant could not be dismissed as done by the defendant.

I found that counsel to the defendant has stressed the issue that since this employment is one of master/servant relationship and based on Exhibit CA-CA6, the parties retained the rights to determine the contract at will before its expiration only subject to one-month notice. My take on this argument is that the defendant’s counsel missed the point in issue. Counsel failed to take cognizance of the distinction between dismissal and termination. Though, the two terms ultimately lead to the same end, however, there is a world of difference between the two terms with regard their different consequences. This distinction is clearly brought out in Union Bank of Nigeria v. Soares [supra] (2012) LPELR-8018 (CA) 21-22, paras. F-A, where the Court of Appeal clarified the issue thus:

“I need to emphasize that in contract of service, parties are bound by the terms of the contract. There is a clear distinction between termination of a contract of employment and dismissal. Termination gives the parties the right to determine the contract at any time by giving the prescribed notice. Dismissal on the other hand, is a disciplinary measure which carries no benefits.”

The earlier this distinction is taken into consideration the better in understanding the claim in this case. In the case of dismissal, issue of one month’s notice does not primarily arise. It is the issue of compliance with the defendant’s rules of engagement that primarily arises. The case made out is that of dismissal and not termination and the two should not therefore be muddled. So, the argument of counsel to the defendant that by virtue of Exhibit CA-CA6, the contract is terminable at will stems from the misconception highlighted above and therefore misconceived. Yes, the contract is terminable at will but dismissal is not exercisable at will: that is the axiom. Since dismissal is a punitive measure, it follows that an employer cannot dismiss at will, as it would under termination.

It must also be noted that dismissal is not a mutual right appertaining to both employee and employer: it is a monopoly exercisable by the employer alone. Hence, the need to set rules, by which employers could dismiss or exercise their powers of dismissal, for the employees to know what to expect, when and how. It is an inherent nature of human relations and the concept of punishment that there cannot be punishment without sin. There cannot be dismissal without corresponding infraction of the rules of engagement by the dismissed staff. Dismissal must therefor be in accordance with the rules of engagement between the parties. Any dismissal outside these rules must logically be wrongful and must be declared so. Depending on the state of pleadings and evidence adduced at trial, a wrongful dismissal may, at the end, be commuted to termination with one-month salary in lieu of notice or any other appropriate order made in accordance with the legal regime of employment and labour jurisprudence in place in Nigeria today. Whereas, in the case of termination, at every material time, it is the issue of one-month notice that immediately calls for attention, since the parties retain the right to end the contract at will as part of their mutual pact.

The question then is: what are the rules of engagement in the instant case? No doubt, the rules of engagement herein are contained in the HCP [Exhibit CB1-CB91]. Is the claimant herein entitled to rely on the HCP, if, when and how? The counsel to the defendant has argued that the claimant could only be entitled to a rule within the HCP if such is pleaded, and that anything outside this would amount to dumping. Counsel to the defendant argued in essence that, the claimant must be limited to section 106 subsection 6.10 pleaded. Now, let me reproduce the contents of the said subsection 6.10 of section 106 of the HCP:

“Dismissal shall be effected by the bank in line with the bank’s disciplinary sanctions grid as recommended by the appropriate DC.

‘Any employee dismissed from the service of the bank shall not be entitled to any benefit except for the employee’s contribution in any scheme operated by the bank which must be credited to the staff’s account.” [Underline mine for emphasis]

From the above, it is obvious that subsection 6.10 of section 106 of the HCP directly incorporates other relevant parts of the HCP with regard to how dismissal is to be effected by the Bank. It states that this must be done in line with the bank’s disciplinary sanctions grid as recommended by the appropriate DC. Having pleaded subsection 6.10 of section 106 of the HCP, which by itself directly incorporates other parts of the HCP relating to dismissal, must the claimant still plead other relevant sections or subsections of the HCP incorporated by subsection 6.10 of the HCP itself in order to be able to rely on them for his case? The answer is no. Why? It is necessary to note that this is a case where the HCP has been pleaded and tendered, which brings its whole contents before the Court – see Onyewuke v. Sule (2011) LPELR-9084 (CA) 19, PARAS. A-C. The quarrel is that all the details of the sections and subsections must still be pleaded before the party could rely on them. It is my take that that is not the law. In Tarzoor v. Avine & Ors (2011) LPELR-5029 (CA) 15, para. D, the Court of Appeal held, and I quote:

“It is also settled law that in the interpretation of the provisions of a statute or the Constitution, a court must read together related provisions of the Constitution or statute in order to discover their meaning. It is not allowed for a court to interpret related provisions of the Constitution or statute in isolation.”

The principle enunciated above is equally applicable to the construction of documents or instruments. Hence, even if the claimant had not referred to these related subsections of the HCP, his case would have remained unshaken since he had referred to subsection 6.10, which directly incorporated all the subsections dealing with sanctions grid and cadre.  This is because the Court itself was bound to check these related subsections in order to bring out the true meaning and effect of subsection 6.10 of section 106 of the HCP, which directly incorporated them. Hence, the reference to issue of cadre in relation to the appropriate disciplinary committee that could rightly effect the dismissal of the claimant is in order and in direct fulfillment of subsection 6.10 of section 106 of the HCP.

What is more, all the subsections in issue are from the same very section 106 which the claimant copiously pleaded and relied on. The claimant only particularly relied on subsection 6.10, which is the fulcrum and connecting rod of all these other subsections. In effect, the claimant placed reliance on the whole of section 106 but more emphasis on subsection 6.10 – see paragraph 23 of the Further Amended Statement of Facts. The claimant’s case is that he was dismissed not in accordance with rules made by the defendant. He has specifically cited infringement of subsection 6.10 of section 106, which incorporates the subsections dealing with the appropriate sanctions grid in relation to dismissal. The sanctions grids are therefore part and parcel of subsection 6.10 of section 106 by direct incorporation. Claimant reiterated clearly in his evidence-in-chief on 16th January 2018 that he relied on section 106: p. 43-49 of the HCP [Exhibit CB1-CB91].

This was followed up under cross-examination where the claimant also reiterated his reliance on section 106 of the HCP and that different staff cadres have different disciplinary committees prescribed for them under section 106 of the HCP. Still under cross-examination, claimant maintained that it is the Managing Director that ought to approve his dismissal. So, it is clear that the issue of sanctions grid/cadres and section 106 of the HCP, were not only clearly pleaded, but were also brought out in the evidence of the claimant before the Court. Having pleaded the whole of section 106 of the HCP, led evidence on it and reiterated it under cross-examination, the claimant’s counsel is at liberty to refer to any of the provisions of the section in anchoring his arguments. The question now is: was the claimant dismissed in accordance with the precepts of the HCP? Reference was made to Rule 6.7 of section 106. It provides thus:

“For ease of managing disciplinary cases and for expediting investigations and decision making Disciplinary Committees shall be instituted; in which case, three disciplinary committees and grievance committee shall be as follows:

  • The Head Office Disciplinary Committee (HODC)
  • The Regional Office Disciplinary Committee (RODC)
  • The Senior Management Disciplinary Committee (SMDC)
  • The Grievance Committee (GC)

‘All cases of dismissal/exit must be reviewed and determined by the Head Office Disciplinary Committee (HODC) making recommendation for approval to the Managing Director/Chief Executive Officer (MD/CEO) for staff below the AGM level. In the case of AGM and above levels, the cases will be reviewed by the Senior Management Disciplinary Committee (SMDC). However, a summary report of disciplinary cases tried by the SMDC shall be rendered to the Board Finance and General Purpose Committee. The Regional Office Disciplinary Committee (RODC) shall review cases of Managers and below grades only. All cases that indict a Senior Manager at the Regions shall be reviewed by the HODC.” [Underlining mine for emphasis]

The claimant has pleaded that he was a branch Manager before his dismissal – see paragraph 5 of the Further Amended Statement of Facts. Going through the sanctions grid as reproduced above, I cannot find where the EXCO came in on the issue of review and approval of sanctions. It is common ground between the parties that the claimant never appealed the decision of the HODC against him. It is also common ground that the HODC is the appropriate disciplinary committee to try the claimant. If the HODC is the appropriate committee to try him then, it follows logically that the recommendations of the HODC must be passed to the MD/CEO for approval and not to the EXCO. The active verbs of subsections 6.10 and 6.8 are ‘shall’ and ‘must’. They impose duties, and as such, they are obligatory – see Obong v. Edet & Anor. (2008) LPELR-8454 (CA) 15, paras. B-F. Rules made by the defendant must be obeyed by it. When these mandatory rules are flouted, any decision arrived at, which leads to injury against a staff must be set aside. The EXCO, which rendered a review of the case handled by the HODC has no vires at all in the circumstances of this case. It is a meddlesome interloper. Having lacked the vires to do what it did, its decisions, which has been complained against is liable to be set aside.

Having settled the issue of whether the claimant was tried and dismissed in accordance with the HCP, the next question to examine is whether the reasons given for dismissing the claimant was justified. This is aside the irregularity of not obeying the rules of the HCP. The minutes of the EXCO Meeting, which set the tone for the dismissal, was admitted as Exhibit DWA-DWA1. At the 2nd page of the Exhibit DWA-DWA1, I found the following:

“The DC recommended that Ijioma Nnennaya be exonerated whereas Ugochukwu Agbanusi be cautioned as there was no evidence to substantiate the allegations against them.

‘EXCO was of a different view and directed that Ugochukwu Agbanusi be dismissed from the Bank and prosecuted under the law whilst Ijioma Nnennaya receives a Caution.

‘EXCO was displeased with the mild sanctions recommended by the DC on such grievous allegations and suggested that the members of the DC that considered the matter be informed of EXCO’s displeasure in writing. Investigations are also to be carried out on the approval process and approving authorities in the affected facilities.”

The contents of Exhibit CK [the letter of dismissal] are reproduced hereunder too:

“Our investigations into your activities, as the Manager of our Aba 2 Branch, have established that you abused your office in the course of carrying out your duties by manipulating customers’ accounts. This you did by the deposit of cheques to build pseudo turnovers that created a false impression of adequate accounts activities with the aim of obtaining unearned renewals of some existing overdraft facilities.

‘Your actions are not only unprofessional, they are contrary to the Bank’s policy and amounts to GROSS MISCONDUCTS. Consequently, in line with the Bank’s sanctions grid, you are hereby dismissed from the services of Keystone Bank Limited.”

The complaint of the claimant against the above is that, he was not given fair hearing before the defendant reached its unfounded conclusions on the basis of which he was dismissed. It is clear from the letter of dismissal [Exhibit CK] that another set of investigations was allegedly carried out by the defendant, apart from the ones by the HODC and the Police, which stated clearly that the allegations against the claimants could not be substantiated; and that, the claimant was only found liable for being in possession of customers’ cheques. Merely possessing customers’ cheques, is different from manipulating them. When new evidence of manipulating these cheques by deposits of cheques to build pseudo turnovers, which created the impression of adequate accounts activities with the aim of obtaining unearned renewals on some existing overdraft facilities, was found against the claimant, would common sense not suggest that he be confronted with these new pieces of evidence for him to react? This was not done. If the defendant used the previous reports from the HODC and the Police to arrive at these findings, was it not supposed to point out those portions of the reports that showed that the evidence presented by HODC and the Police were wrongly summed up? This, the defendant did not do too.

With regard to these new pieces of evidence supposedly unearthed by other investigations, the claimant was definitely not afforded fair hearing in tandem with its HCP, as he was not confronted with these new pieces of evidence nor called upon to react to them nor was the source of the evidence or even the evidence revealed, even up till now – see Adebayo v. Nigeria Army Anor (2012) LPELR – 7902 (CA) at 25 – 26, paras. F – E where the Court of Appeal held that it amounts to infringement of fair hearing for a tribunal to fish for evidence against an accused person. The clear implication is that the reasons for the dismissal of the claimant were most patently unproved. It is clear that the claimant is being held liable for loan facilities granted by the defendant, which turned sore: no more, no less. This fact is proved by Exhibit CC [the letter of suspension], which stated clearly that: “Please note that the suspension shall be for a period of three (3) months after which you will face a Disciplinary Committee if the non-performing loan remains unresolved.” In SHELL PETROLEUM DEV. CO. LTD V. CHIEF VICTOR SUNDAY OLAREWAJU [2008] LPELR – 3046 [SC], the Supreme Court has this to say on the duty of an employer where he has elected to state a reason for determining the appointment of an employee:

“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]

It is clear from Exhibit DWA-DWA1 which says: “EXCO was displeased with the mild sanctions recommended by the DC on such grievous allegations…” that, the defendant was not bothered with proof of the allegations and was of the view that mere allegations were sufficient to damnify the claimant. Exhibit DWA-DWA1 is the extracts of minutes of the EXCO and the recommendations leading to issuance of Exhibit CK. It is clear on the body of Exhibit DWA-DWA1 that no further investigation was carried out on the allegations against the claimant. Therefore, the assertion in the letter of dismissal [Exhibit CK] that: “our investigations into your activities, as Manager of Our Aba 2 Branch, have established you abused your office in the course of carrying out your duties by manipulating customers’ accounts.” is a patent falsehood. Exhibit DWA-DWA1, which is the fountain source of Exhibit CK has exposed the falsehood by stating clearly that the basis of its conclusions against the claimant is not evidence but mere allegations. Therefore, the reasons offered for the dismissal having been found to be unproven, is liable to be set aside, and is hereby set aside.

The next question to examine in relation to issue 2 is whether the defendant has the vires to dismiss the claimant on criminal allegations. To answer this poser, it is necessary to determine if criminal allegations were made against the claimant or if criminal allegations informed the dismissal of the claimant. The first port of call in this regard is the Exhibit DWA-DWA1, the EXCO extracts. At the 2nd page, 2nd paragraph thereof, it is written: “EXCO was of a different view and directed that Ugochukwu Agbanusi be dismissed from the Bank and prosecuted under the law whilst Ijioma Nnennaya receives a Caution.” Now, the letter of dismissal, Exhibit CK, paragraph 1, which gives the reason for the dismissal, states thus:

“Our investigations into your activities, as the Manager of our Aba 2 Branch, have established that you abused your office in the course of carrying out your duties by manipulating customers’ accounts. This you did by the deposit of cheques to build pseudo turnovers that created a false impression of adequate accounts activities with the aim of obtaining unearned renewals of some existing overdraft facilities.” [Underlining mine for emphasis]

The Black’s Law Dictionary, 8th Ed., at p. 982 defines, ‘manipulation’ as “the illegal practice of raising or lowering a security’s price by creating the appearance of active trading.” The New International Webster’s Comprehensive Dictionary of the English Language, Encyclopedic Edition, 2013 Ed., p. 775, head 3, defines ‘manipulate’, to mean, “To change or alter (figures, accounts, etc.), usually fraudulently.” When the accusation of manipulation of accounts is construed along with the further explanation that the claimant did his manipulation by depositing cheques to build false “turnovers that created false impression of adequate accounts activities with the aim of obtaining unearned renewals of some existing overdrafts”, it cannot be far fetched that the accusation against the claimant is patently criminal allegations of altering and forgery – see the Supreme Court in Ndoma-Egba v. ACB (2005) LPELR – 1973 (SC) at 21 – 22, paras. F–A. If any iota of doubt exists on the criminal nature of these allegations in the letter of dismissal, it is removed when it is construed along with the Exhibit DWA-DWA1, which directed that the claimant be handed over for prosecution after dismissal. It shows plainly that the defendant intended and actually knowingly dismissed the claimant on criminal allegations. These criminal allegations the defendant also tagged gross misconduct. Tagging them misconducts does not change their inherent nature. Does the defendant have the vires to do this? Dongtoe v. CSC, Plateau State (2001) LPELR – 959 (SC) at 34 – 35, paras. E – G, provides the answer thus:

“It is well settled that where there is an accusation of the commission of criminal offences, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt. There is no doubt that an administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. However, where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises, and no burden of proof rests on the accuser, the burden of proof having been discharged by the admission of the accused.”

The claimant herein has not accepted any of the criminal allegations leveled against him. The possession of customers’ cheques, which he did not dispute, is not a criminal offence. In any case, under cross-examination on the 21st February 2018, the claimant explained why he was in possession of customers’ instruments. Claimant said: “It is not correct that a staff cannot be in possession of a customer’s instrument because the duty of a Manager is to mobilize deposits via collection of instruments, cash to the favour of the customer’s account.” The defendant claimed this is an infringement of an alleged rule of hers, which alleged rule, conspicuously absent in the HCP, is not brought to the notice of the Court by the defendant. There is equally no evidence from the defendant before the Court to show how staff could mobilise deposits for the bank other than as stated by the claimant. There is also no contrary evidence from the defendant establishing that it is not the duty of a manager to mobilise deposits for the bank. So, the argument that because the claimant never cross-examined on the issue of holding customers’ instruments and as such, it is deemed to be admitted, and it is of no avail. The claimant who never denied this needs no cross-examine on it but only needs to explain why he was in possession of those instruments; and this he did without impeachment from the defendant. It follows that even the non-criminal allegation of infringing the alleged rule of the defendant by being in possession of customers’ instruments was unfunded and not proved: meaning that no misconduct was established against the claimant. More so, the usurpation of the courts function by the defendant to find the claimant guilty of criminal allegations of manipulations of customers’ account, alteration and forgery of false turnovers on these accounts cannot stand. It must be set aside; and is hereby set aside.

On the whole, issue 2 is resolved against the defendant and in favour of the claimant. The claimant therefore succeeds in establishing that his employment was wrongfully terminated. In the event, the dismissal of the claimant, the dismissal letter [Exhibit CK] and EXCO Extracts [Exhibit DWA-DWA1] are hereby set aside. Having set aside the dismissal of the claimant, the next thing is to proceed to issue 3 and examine the reliefs claimed to see if they are grantable or not or which one is grantable amongst them.

ISSUE 3:

If the Answer to Issue 2 is Yes, are the Reliefs sought by the Claimant such that, the Honourable Court can grant in an Action of this nature?

On the first relief [relief A], counsel to the defendant submitted that because the claimant failed to prove denial of fair hearing and the fact that the relief, as couched is vague, it is not grantable.  These two objections lack merit. First, it has been held that the right of the claimant to fair hearing was breached when, after another set of investigations, the defendant allegedly unearthed new pieces of criminal evidence against the claimant and failed to confront him with these pieces of evidence for his reaction and defence. Secondly, I cannot find anything that is vague in the relief simply because it quoted extensively from the dismissal letter to anchor itself. Since the Court has held that the claimant was wrongfully dismissed, it follows that relief A is grantable and is hereby accordingly granted. With regard to reliefs B, it is grantable and accordingly granted. The dismissal of the claimant is hereby set aside.

With regard to relief C, I am of the view that notwithstanding that the dismissal has been set aside, it is not grantable in the circumstance of this case. What follows once dismissal is set aside is that termination is substituted in its stead where the Court cannot order reinstatement. The end purpose of dismissal and termination is cessation of the employment relationship between the employer and the employee. The only difference is that dismissal is attached with some form of ignominy and deprivations; and makes the employee dismissed liable to forfeiture of some entitlements – see paragraph 2 of subsection 6.10 of section 106 of the HCP. As a logical consequence flowing from the said paragraph 2 of subsection 6.10 of section 106, I found that subsection 4.1.3 of section 111 of the HCP at item 5 thereof provides that “for a dismissed staff, benefits are put on hold including staff account placed on Post-No-Debit (PND) status.”

It follows that once dismissal is declared wrongful, the adverse consequences of dismissal cannot attach to such wrongfully dismissed staff. Where the court cannot order reinstatement, it means the wrongful dismissal is automatically converted to termination; and that, the employee would be entitled to the notice prescribed or salary in lieu thereof and all other benefits of a staff disengaged other than by dismissal – see the judgment of this Court in SUIT NO. NIC/ABJ/47/2011: Comrade Iduh Lawrence Onah v. Nigeria Labour Congress & 1 Or. [Delivered on 28th February 2013 by the Abuja Division], especially pp. 32-33. Let me state that this is an industrial relations Court. While it is not the practice in most cases to order reinstatement in non-statutory employment relations, it is not invariably the rule in modern industrial relations practice that this could not be done in deserving cases. It is my finding that the Court cannot order reinstatement in the circumstance of this case because the facts of the case do not fall within the range of situations where reinstatement could be ordered in employment not clothed with statutory flavour as in this case. In the event, I order the payment of one-month salary in lieu of notice since the dismissal has been converted to termination.

With regard to relief D, the areas of salaries, the claimant claimed the sum of N9,000,000.00 as his arrears of salaries. In paragraph 21 of the Further Amended Statement of Defence, the defendant did not deny this but instead stated that it reserved the right to hold on to it in satisfaction of the nonperforming loans granted by the claimant to Alba Petrogas Products Limited and Matrix Gold Limited. This posture was maintained in paragraph 20 of the Witness Statement on Oath of DW1 of deposed 9th November 2016, which was adopted at the trial of this case on 6th March 2018. In support of his case the claimant tendered Exhibit CC [his letter of suspension], Exhibit CK [letter of dismissal], and Exhibit CA1-CA6 [Letter of Employment]. By Exhibit CC, the recovery suspension commenced on February 10, 2015 and was to last for 3 months, meaning that it ended May 10 2015. The claimant was eventually dismissed February 3 2016. It means the claimant worked for 8 months, 24 days after the recall from the recovery suspension. Exhibit CA1-CA6 [letter of employment] at its p.6 [the last page] the attachment therein showed the details of the salaries per annum. In his evidence-in-chief, the claimant also relied on his 3rd Witness Statement on Oath deposed to 16th February 2018 and at paragraph 3 thereof gave his total salary per annum to be N9,087,771.52K. The defendant did not challenge this evidence. It therefore stands.

It is not in dispute that the claimant was placed on 50% salary for the three months of recovery suspension. There is also no argument on the fact that the claimant was paid zero salaries for all the period he served after the recovery suspension. However, counsel to the defendant has objected to relief D because the claimant pleaded and led evidence that his salary was slashed to 50% in February 2015 but relief D asked for refund from February 2014 and because the claimant did not show arithmetically how he arrived at the figure N9,000,000 being claimed. Defendant’s counsel also attacked the relief because the evidence led on it was contradictory because the 1st witness statement on oath also retained the claim from February 2014 while the 3rd witness statement on oath stated February 2015.

It is my view that the said contradiction inherent in the evidence is not material because evidence abounds to clarify this. The date the recovery suspension commenced is not in dispute and Exhibit CC shows this clearly. The date is February 2015. A document speaks for itself and oral evidence cannot vary the contents of documentary evidence – see Uzamere v. Urhoghide & Ors. (2009) LPELR-5082 (CA) 19, paras. D-G. Whatever contradictory evidence is given could not alter the contents of Exhibit CC, a documentary piece of evidence. Hence, the contradiction in the witness’ written depositions must be seen as typographical error, which remained undetected and uncorrected.

Now, it is the law that a claimant in a declarative action must succeed on the strength of his case and not on the weakness of the defendant’s case: meaning that, he must produce evidence in prove of his case – see Dumez Nigeria Limited v. Nwakhoba & Ors. (2008) LPELR-965 (SC) 13-14, paras. F-F. On this count, I agree that the claimant did not show how he arrived at the sum of N9,000,000.00 being claimed as the areas of salaries. But that does not mean his claim for salary areas must fail totally. The Court can grant party less than what he claims on the basis of what is proved before the Court. The claimant has successfully proved before the Court that he worked for 8 months 24 days after the recovery suspension by virtue of Exhibits CC and CA1-CA6. The defendants admitted this fact by its pleading and the evidence of DW1 who maintained that the arrears of salaries were impounded to satisfy the non-performing loan facilities granted. The claimant has given evidence of his annual salary as N9,087,771.52K. This was not disputed. The claimant also tendered his letter of appointment detailing his salary. This claim is therefore in the nature of liquidated sum calculable by mere arithmetic. The defendant is therefore ordered to pay to the claimant his full areas of salaries for 8 months 24 days and 50% of his salaries for the 3 months of recovery suspension.

It should be noted that the defendant did not at any point show that there is any fault traceable to the claimant in the grant of the bad loans. The claimant has instead proved that the bank in its own discretion granted the loans. The defendant bank has not also shown that there is any law which says a bank staff, without any fault, could be held responsible for non-performance of loans the bank dully granted simply because the staff was the Manager of the branch in which the loans were domiciled. Evidence is also on record that the collaterals deposited for these non-performing loans are still with the bank. Why hold on to the claimant’s salaries in respect of these loans! It is not shown that the HCP or the letter of appointment has any term that gave the defendant the right to hold on to a staff’s salaries in satisfaction on non-performing loans dully granted and secured by the defendant bank.

I now move to relief E. Relief E is not grantable because the employment relations between the defendant and the claimant does not enjoy statutory flavour and like I have earlier held, reinstatements, which are granted in deserving situations in the modern jurisprudence of industrial relations to which Nigeria is subject by virtue of the section 254C – (1)(f), (h) & (2) of the 1999 Constitution, which enjoins this Court to give vent to international conventions and standards, all geared towards entrenchment of international best practices in industrial relations in Nigeria, is not grantable in the circumstance of this case. If reinstatement cannot be granted, it follows logically that relief E, which naturally takes its course from reinstatement, cannot be granted in this instance too; and I so hold. Since the defendant by its paragraph 2 of subsection 6.10 of section 106 of the HCP accepts the fact that the account of the claimant is actually frozen. Relying on sections 14 and 19 (d) of the National Industrial Court Act, 2006 relief F is therefore granted to prevent multiplicity of actions. I shall not touch relief G, which is claimed in alternative to the reliefs A-F, the Court having granted the ones grantable of reliefs A-F.

That is the fault of counsel, who though, argued fervently for damages and cited authorities to show that damages could be granted in deserving cases of dismissal and that the case of the claimant fell within this class and yet claimed the relief [damages] in respect of these arguments as an alternative relief. His arguments represent the correct position. This is in tune with the current industrial relations clime in Nigeria. This Court has accordingly granted damages in deserving instances in cases of dismissal – see Comrade Iduh Lawrence Onah v. Nigeria Labour Congress & 1 Or. [supra]. However, things must be properly done. This relief is not properly claimed and is therefore not grantable. When a claimant pleads in the alternatives, he must be taken to be aware of his rights and has decided that he is ready to trade off part. Hence, this Court cannot rely on sections 14 and 19[d] of the National Industrial Court Act, 2006 to grant a relief, which the claimant claimed in the alternative after having granted substantial parts of the main reliefs claimed – see The M.V. “Caroline Maersk” Sister Vassel to M. V. “Christian Maersk” & Ors  v. Nokoy Investment Limited (2002) LPELR-3182 (SC) 16-17, paras. G-E.

The claimant did not ask for the cost of this action and none is accordingly granted. The monetary aspects of the judgment must be complied with within 30 days next; failing which the judgment sum would begin to attract 10% interest rate per annum until the judgment sum is fully paid.

Judgment is entered accordingly.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

OWERRI DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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