IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/YL/03/2016
DATE: JULY 6 2018
BETWEEN:
YUSUF MOSHOOD AYANGBADE – CLAIMANT
AND
UNITED BANK FOR AFRICA PLC – DEFENDANT
REPRESENTATION:
J.Olu Adebambo Esq for the Claimant;
Hussaini G. Maidawa Esq, with Hassan G. Maidawa Esq and Victor Abasiodiong, Esq, for the Defendant.
JUDGMENT
The Claimant instituted this action at the then Yola Registry of this Court (now Yola Judicial Division) via a Complaint filed on 19th February 2016, together with the requisite frontloaded court processes, challenging his purported dismissal from services of the Defendant Bank on account of gross misconduct.
The Claimant sought for the following Reliefs:
“A. A Declaration that the suspension and purported dismissal of the Claimant by the Defendant is wrongful, unwarranted, illegal, unconstitutional, null and void.
B. A Declaration that the employment of the Claimant is valid and subsisting until same is validly determined by the Defendant.
C. The sum of N28,621,734.73 (Twenty Eight Million, Six Hundred and Twenty One Thousand, Seven Hundred & Thirty Four, Seven Three Naira Only) being the accrued earnings and entitlements from the defendant as at 31st December, 2014.
D. 10% interest per annum commencing from February, 2013 till judgment and 10% interest per annum from judgment till liquidation.
E. The sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) being the legal expenses incurred by the Claimant to recover the above stated debt from Defendant.
F. The sum of N5,000,000.00 (five Million Naira only) being damages for wrongful suspension/dismissal of the Claimant.
G. The cost of this suit”.
Upon commencement of court sitting at the Yola Division on 11th October 2017, the matter was transferred from Jos Division, and came up for mention on 16th October 2017, and was thereafter adjourned for trial on 2nd November 2017. At the resumed proceedings on 2nd November 2017, learned Defendant’s Counsel drew the court’s attention to his pending Notice of Preliminary Objection dated 3rd March 2017, and urged the court to take it together with the substantive suit in line with Or.18 R. 2(3)NICN (Civil Procedure) Rules 2017.
The Notice of Preliminary Objection principally challenged the jurisdiction of the court on the ground that the Claimant’s suit was pre-mature as he did not exhaust the internal dispute resolution mechanism of the Defendant Bank, which covers also Ex-Employees, before commencing the suit. The Motion was moved as per Affidavit in support and Counter-Affidavit of both parties and the Written Addresses of counsel, and with leave of court, the submissions of both counsel was directed to be incorporated as a separate issue to be addressed by both counsel in their respective Final Written Addresses, and ruling reserved, to be delivered with the Judgment on the substantive suit.
Trial started on the substantive suit on 3rd November 2017. The Claimant who was his sole Witness testified for himself as Claimant’s Witness (CW). He adopted his Amended Witness Statement on Oath filed on 13th January 2017, as his evidence–in-chief and tendered 8 sets of documents listed in the Claimant’s List of documents dated 13th January 2017. The said documents were admitted and marked as Exhibits CA1, CA2, CA3, CA4, CA5, CA6 A & B, and CA7, and described as follows: Exhibit CA1-Claimant’s letter of employment dated 24/12/1999; Exhibit CA2– Claimant’s letter of confirmation of appointment dated 21/01/2002; Exhibit CA3-Claimant letter of transfer dated 05/03/2010; Exhibit CA4-Claimant letter of promotion dated 29/02/2015;Exhibit CA5-Claimant’s Solicitor’s letter dated 06/02/2015;Exhibit CA6A- Reply letter from the Defendant to the Claimant’s solicitors dated 06/03/2015; Exhibit CA6B- Claimant’s dismissal letter dated 03/05/2013; and ExhibitCA7-Defendant’s Capital Management Head Office Annual Leave dated 23/01/2009.
The case of the Claimant as gleaned from his pleadings and testimonies at the trial is that he was a banking officer in the employment of the Defendant since December 1999 he was employed by the Defendant and served meritoriously until sometime in February 2013, almost 14 years of service, when he was suspended from work without just cause and his salary and other entitlements were stopped. That sometime in April 2013 he was summoned to appear before a Disciplinary Committee of the Defendant over some transactions he made in the course of his duty based on the instructions of his official supervisor, one Innocent Achor. That the decision of the Disciplinary Committee was never communicated to him and he did not receive any further communication from the Defendant, and after a long wait, sometime in February 2015, he instructed his Solicitors, Olu Adebambo & Associates, to write a letter to the Defendant complaining about the unfair treatment and demanding his accrued earnings and entitlements. And that he was surprised to receive a Reply letter dated 6th March 2015 informing him that he has been dismissed from the services of the Defendant as per the attached copy of letter of dismissal. Hence, the Claimant commenced this suit against the Defendant to challenge the action of the Defendant and to recover his outstanding entitlements.
The Claimant was thoroughly cross-examined by the Defendant’s counsel and re-examined by his own counsel, and he closed his case at the proceedings of 3rd November 2017.
Upon close of the Claimant’s case, the Defendant opened its defence on 9th November 2017, and also called a sole witness one Usman Olalekan who is an Area Control Officer of the Defendant at its Yola branch as Defence Witness (DW), who adopted his Witness Statement on Oath filed on 11th July 2016, and also tendered 4 documents which were admitted in evidence, and marked as follows: Exhibit DA1–Defendant’s HR Disciplinary Process and Policy 2010; Exhibit DA2- Minutes of Regional Bank Disciplinary Process and Policy 2010; Exhibit DA 3- Minutes of the Corporate Office Disciplinary Committee dated 28/06/2013; and Exhibit DA4-Claimant’s Dismissal letter written by the Defendant dated 03/05/2013.
DW closed his testimonies on 6th December 2017 and the matter was adjourned for filing of Final Written Addresses by both counsel for the respective parties. From the pleadings and testimonies of the DW, the case of the Defendant is that the Claimant was found wanting over an allegation of misconduct as a result of unauthorized vault lending of the sum of N800, 000.00 which misconduct caused his dismissal, of which he was initially suspended and faced a Disciplinary Committee alongside other members of staff. That the Disciplinary Committee indicted him and recommended his dismissal, and that he was aware of both his suspension and dismissal from the employment of the Defendant, and that as a dismissed staff, he is not entitled to any entailments from the Defendant.
At the proceedings of 11th April 2018, counsel adopted their Final Written Addresses and adumbrated on same and urged the court to uphold their respective submission as per their own perspective. The matter was thereafter reserved for Judgment.
COUNSEL’S SUBMISSIONS
Submissions by Defendant’s Counsel:
Hussaini G. Maidawa, Esq, learned counsel for the Defendant, filed the Defendant’s Final Written Address dated 27th December 2017 on the same date. He raised three (3) issues for determination, one of which is the submission on the Notice of Preliminary Objection earlier filed to challenge the jurisdiction of the court. The issues raised for determination are:
(i) Whether having regard to the Dispute Resolution Mechanism put in place by the Defendant, the jurisdiction of this Hon. Court has been activated and the cause of action has arisen?
(ii) Whether based on the totality of the evidence before the Hon. Court, the Claimant has proved his case to be entitled for the reliefs claimed?
(iii) Whether having regard to the Claimant’s admission of his suspension by the Defendant, the Claimant is entitled to the reliefs sought for payment of his salaries and allowances during the period of his suspension?
Issue (i) deals the Notice of Preliminary Objection filed by the Defendant. A separate portion of this Judgment is devoted for resolution of the Objection which challenged the jurisdiction of the court. Accordingly, the counsel’s submissions on the issue would be presented and considered while determining the Notice of Preliminary Objection in the later part of this Judgment. In the circumstance, the counsel’s submissions would start with issue (ii).
On issue (ii) – Whether based on the totality of the evidence before the Court, the Claimant has proved his case to be entitled for the reliefs claimed: Defence counsel submitted that since by the rule of evidence, the burden of proof is on the person against whom judgment would be given if no evidence is led in the matter, the burden of proof is on the Claimant to prove his case that his dismissal was wrongful and unconstitutional. This burden, learned counsel argued that the Claimant did not discharge in his case. He stated that the Claimant contended that he was suspended for no just cause and/or for obeying the instruction of his superior officer but he failed to avail the Court with the said instruction. Counsel further argued, citing and relying on Akinniranye v. Stanbic IBTC & Ors (2014) LPELR- 22250 (CA) to the effect that the fact that an employee obeys his superior or his officer’s instructions and the instructions turn out to be unlawful, is no excuse for obeying such an illegal or unlawful instruction.
Counsel contended that the allegation against the Claimant is more than receiving instruction of crediting N260, 000.00 to a customer. The allegation is about unauthorized vault lending of about N800,000.00 in respect of which the Claimant faced a Disciplinary Committee. He refers to Exh. DA2 where, according to counsel, “the Claimant admitted the allegation against him but interestingly in his evidence (exh.DA2), the Claimant did not mention the name of Innocent Archor who gave him the purported instruction”. Counsel then submitted: “So there is no way he can now claim that it was one Innocent Achor instructions he carried out a verbal instruction for that matter”.
Learned Defendant’s counsel further contended that the Claimant’s averment that he was not served with the dismissal letter, but he got to know when the Defendant wrote to his solicitors cannot be correct. Counsel submitted that the Claimant failed to provide the Court with copy of his suspension letter and how the Claimant’s suspension was communicated to him since there was no written communication served on him as he claimed in relation to his dismissal. To learned Defence counsel, “It is the duty of the claimant to prove that by not serving him with the duty of the Claimant to prove that by not serving him with the dismissal letter to give him notice of such dismissal, the Defendant breached the terms and conditions of his employment”.
Counsel further submitted that: “Assuming without conceding that the Court finds in the favour of the Claimant, that because there was no evidence of service of the letter of dismissal wrongful, we submit that the Court cannot presume that the relationship between the Claimant and the Defendant exists in the light of exhibit DA4 which was dated the 13/05/2015 and award his salaries and all entitlements as he claimed in his reliefs for the period of his suspension. This is so because it is trite law that in a master/servant relationship where the Court finds out that the dismissal is unlawful the Court cannot force the employer to pay all salaries during suspension, and to do that is like to force a willing servant on unwilling master”. He cited and relied on Texaco Nig Plc v. Kehinde [2001] 6 NWLR (Pt.708) 224 @ 242 Paras E-H.
Counsel further argued that the allegation against the Claimant is that of gross misconduct which is weighty and attracts punishment of summary dismissal. He cited and relied on Nwobosi v. A.C.B. Ltd [1995] 6 NWLR (Pt. 404) 658. According to counsel: “In this instant case, the misconduct of the Claimant is based on unauthorized lending from the vault which by Sections 15.1.6. & 13.1.7, 17.3.2. (ii) and (iv) of Exhibit DA1 is an act of gross misconduct and the appropriate punishment is that of dismissal. See also Exhibit DA4, which is the letter of dismissal and the act of the Claimant clearly shows the willful disobedience of Defendant’s regulations notwithstanding that its clear and unambiguous wordings”.
Counsel further submitted that the law is fairly settled that where an employee is summarily dismissed based on the act of misconduct; such an employee is not entitled to any notice or wages. He cited and relied on Nwobosi v ACB (supra) @ P. 686 paras F-G, and Joseph & Ors. v. Kwara State Polytechnic (2013) LPELR- 21398 (CA) where the court held thus:“……I agree that under a common law principle of master/servant relationship, an employee can dismiss for any act of misconduct, which must be established by evidence, if the dismissal is challenged in Court.”
On issue 3– Whether having regard to the Claimant’s admission of his suspension by the Defendant, the Claimant is entitled to the reliefs sought for payment of his salaries and allowances during the period of his suspension: It is the submission of the learned Defendant’s Counsel that from Paragraphs 11,18 to 22 of the Claimant’s pleadings, that the Claimant was suspended in February, 2013 and the salaries and allowances he is claiming are for the period from 2013 to December, 2014( the period of his suspension). Also that, based on the Claimant’s evidence in his Statement on Oath (paragraphs 11, 20-23) and under cross-examination, the Claimant admitted that these salaries and allowances being claimed are for the period that he was suspended. And that under cross-examination the Claimant also admitted and also agreed that when a staff breached the Policy and Regulations of the Defendant it attracts sanction, and when he was further asked under cross-examination if a staff is paid during suspension he said yes, because it was the policy that said so.
Counsel then submitted that the policy of the Defendant as in exhibit DA1 (the Defendant’s Policy) which provides for suspension as a sanction for misconduct, in Section 13.4.1 as follows: “A staff may be placed on suspension from misconduct based the decision of the duly constituted DC or based on the recommendation of the supervisor.” And also in section 13.6.1, where it provides as follows: “Staff on suspension resulting from sanction shall not be entitled salary for the period of suspension”.
Citing and relying on Spring Bank v Babatunde (2011) LPELR- 4975 (CA), counsel finally submitted that based on the admission by the Claimant that he is on suspension and the Defendant’s exhibit DA1, the Claimant is not entitled to any remuneration from the Defendant for the service he never rendered.
In conclusion, learned Defendant’s counsel summed up his submissions and contended that the Claimant is aware that he was dismissed from the service of the Defendant since May, 2013; the Claimant has failed to prove his case for wrongful dismissal; the Claimant’s dismissal was communicated to him in the same way as his suspension; the Claimant failed to show that the suspension and dismissal have different modes of communication by not producing any written letter of suspension different from the dismissal; the Defendant has the power to dismiss the Claimant for any act of misconduct under exhibit DA1; the act of unauthorized lending of N800,000.00 from the Defendant’s vault by the Claimant to a customer who did not have the funds in his account was a misconduct which warranted the Claimant’s dismissal; the Claimant having been summarily dismissed he is not entitled to wages and salaries; and that the Claimant having admitted that he was on suspension since February, 2013, is not entitled to any salaries while on suspension for misconduct by virtue of Section 13.6.1 of the exhibit DA1.
On the whole, counsel urged the court to uphold his submissions and dismiss the Claimant’s case.
Submissions by Claimant’s Counsel:
On his part, J.Olu Adebambo Esq., learned Counsel for the Claimant, in his Claimant’s Final Written Address dated and filed on 7th March 2018, though filed out of time but regularized at the proceedings of 15th March 2018, raised two (2) issues for determination:
1. Whether the claimant is wrongfully dismissed?
2. Whether the claimant is entitled to his claims?
On issue 1- Whether the Claimant is wrongfully dismissed: counsel pointed that the resolution of this issue is dependent on the consideration of the terms and conditions of the Claimant’s employment as contained in the GMD’s approval and HR Disciplinary process & policy of August 2010 (Exhibit DA1) pursuant to which the Defendant purportedly dismissed the Claimant. He then submitted that although the Defendant as an employer has right to terminate or dismiss the Claimant being its employer, but where an employer gives reason(s) for terminating the employment of an employee and same is challenged, the employer is duty bound to justify the reason. He cited and relied on A.C.B Ltd v. Ewarami (1978) 4 S. C. 99, which held that: “Where an employer states that an employee was dismissed for misconduct, if challenged he must prove the misconduct, otherwise that may be a ground for decreeing specific performance against him.”
It is Counsel’s contention that since the Claimant was dismissed for alleged gross misconduct (vault lending) as contained in exhibit CA6A&6B and paragraph 21 of the Statement of Defence and the Defendant also placed reliance on the Recommendation of its Disciplinary Committee as contained in exhibit DA2 which was purportedly done pursuant to the provisions of exhibit DA1, consequently, the Defendant is duty bound to prove the alleged gross misconduct (Vault lending) to the satisfaction of the court. Counsel further argued that Paragraph 17.3.2 of the exhibit DA1 enumerates various acts of gross misconduct by the employee, but that unauthorized vault lending is not mentioned in the said paragraph. According to learned counsel: “It necessarily follows that the alleged unauthorized vault lending leveled against the claimant cannot amount to gross misconduct”.
Canvassing the argument for the Claimant, learned counsel further pointed that Exhibit DA2 is the Minutes of the Defendant’s Disciplinary Committee before whom the Claimant appeared in respect of the allegation of misapplication and unauthorized vault lending. And that the Committee in its Recommendation (page 5) exonerated the Claimant of any wrong doing when it stated: “This is an established case of vault lending by the BOM-Moshood Yusuf (Claimant) and Cash Officer- Galadima Yakubu, though it was not with fraudulent intent and there was no loss of funds to the Bank…” (Underlined emphasis supplied by counsel). Counsel also refers to Paragraph 13.3.6 of Exhibit DA1, which provides thus: “Where a staff is completely exonerated either at the instance of investigations or DC decision, the suspension shall be withdrawn and such staff shall be reimbursed with his/her withheld salaries for the period on suspension.”
Counsel however contended that without stating the provision of the paragraph of the exhibit DA1 relied upon, the Defendant’s Regional Disciplinary Committee recommended, the Claimant’s dismissal with the other Staff, Galadima Yakubu, thus: “…..Mr. Moshood Yusuf and Galadima Yakubu should be dismissed from the services of the Bank in line with GMD’s approval and HR Disciplinary Process & Policy of August 2010”, i.e exhibit DA1.
Counsel further pointed that the Paragraph 15 of the GMD’s Approval and HR Disciplinary Process & Policy of August 2010 (Exhibit DA1) clearly and unequivocally provides for the conditions under which an employee of the Defendant can be dismissed from service. And as that is the paragraph under which the Claimant was purportedly dismissed by the Defendant, Sub-Paragraph 15.1.7 specifically provides for dismissal of any employee found guilty of unauthorized lending resulting in a financial loss. Counsel noted that the Disciplinary Committee of the Defendant found that the alleged conduct of the Claimant “was without fraudulent intent and there was no loss of funds to the bank”. (underlined emphasis by counsel).
Counsel then submitted that: “It follows that since GMD’s approval and HR Disciplinary Process & Policy of August 2010 (Exhibit DA1) provides for dismissal in the event of unauthorized lending resulting in a financial loss to the Bank, a dismissal for an alleged unauthorized vault lending without financial loss to the bank as regards the Claimant herein is incompetent, null and void”. In further support of his submission, counsel pointed that ‘Vault Lending’ is not defined in the said exhibit DA1, but the DW during his testimony on oath at the trial, described ‘Vault Lending’ “as the act of unauthorized removal of cash from the vault of the bank.” And that there is no evidence before the Disciplinary Committee and indeed this court that the Claimant removed any cash from the vault of the Defendant and/or that he did same without authority. That the only evidence adduced was that the Claimant only credited a customer’s account with the authority of his official supervisor Mr. Innocent Achor, who was also a member of the Disciplinary Committee, which fact, was known to the Defendant, as clearly shown in exhibits DA2 & DA3. And that the act of the Claimant was not with fraudulent intent and did not cause any financial loss to the Defendant Bank, counsel submitted.
Counsel further pointed that it is evident on record that the Defendant applies the Disciplinary policy measures under exhibit DA1 with double standard to its employees, in that as shown in pages 1 & 4 of exhibit DA3 (pages 1&4) where the Defendant terminated the employment of its BOADMIN, Mr. Clarkson Onyeji Eze, who defrauded the bank with the receipt No. 00006 dated 29/04/2013 and paid him all his entitlements/benefits, and he was not dismissed in spite of the gravity of the allegation against him and his culpability. Yet, the Claimant who was not guilty of any fraud or led the Defendant to financial loss was purportedly dismissed by the Defendant, using the same policy. To counsel, this “clearly shows that the purported dismissal of the Claimant is premeditated and bad faith”.
It is also Counsel’s contention that since ‘vault lending’ not resulting in financial loss does not carry punishment of Dismissal, as in exhibit DA1, the Claimant could not be punished for an act that is not expressly made an offence, as that is contrary to the Constitution of the Federal Republic of Nigeria 1999 (as Amended), which provides in Section 36(8), thus: “No person shall be held to be guilty of an offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any offence heavier than the penalty in force at the time it was committed.”
On issue 2-Whether the Claimant is entitled to his claims: Counsel submitted that since civil cases are decided on preponderance of evidence or balance of probability, the Claimant has placed sufficient evidence to establish his case and discharge the burden on him. He narrated how the Claimant has established his case with his averments in his 37- Paragraph Witness Statement on Oath and 8 exhibits tendered and admitted in evidence, to show that he was wrongfully dismissed from the services of the Defendant after about 14 years meritorious service but now denied his basic benefits and entitlements, as contained in paragraph 10-30 of his pleadings.
Claimant’s counsel further refers to the Claimant’s averments in Paragraph 22 of the Claimant’s Amended Statement of Facts Establishing the Cause of Action, which provides analysis of the Claimant’s entitlements from the Defendant, to the tune of a total sum of N28, 621,734.73. Which sum was demanded from the Defendant via Exhibit CA5, and that the Defendant admitted same having not disputed the averments in his pleadings (paragraphs 1-26) and at the trial, rather, its excuse or defence is that the Claimant has been dismissed.
Counsel also pointed that paragraphs 7-23 of the Claimant’s pleadings were not also specifically denied by the Defendant, who merely used general traverse which counsel, submitted does not amount to denial in pleadings. And that though the Defendant specifically denied paragraphs 15, 17, 27,28,29,30, 31, 32, 33, 34 and 35 of the Claimant’s pleadings, but failed to support its averments with evidence. He contended that by Exhibit CA7, the Claimant has an outstanding leave allowance for 187 days amounting to N7, 817, 600.00 which remains unpaid by the Defendant, of which the Defendant did not in any way challenge or contradict that piece of evidence. Counsel cited and relied on Balogun v. E.O.C.B (Nig.) Ltd (2007) ALL FWLR (Part 382), 1952 and S.P.D.C v. Esowe (2009) ALL FWLR (Part 467)120, to the effect that the court can rely on unchallenged evidence which the adverse party had opportunity to debunk at the trial. Counsel urged the court to so hold particularly as the Defendant never challenged or disputed the amount claimed by the Claimant.
It is counsel’s further contention that although the Claimant was suspended by the Defendant in February 2013 without pay, the purported letter of Dismissal dated 3rd May 2013 (exhibit CA6B) was not served on the Claimant and the Claimant had no knowledge of it until sometime in May 2015, when it was received as an attachment to the Defendant’s Reply (exhibit CA6A) to the Claimant’s Solicitors’ letter of demand (exhibit CA5). And that in the said letter of Dismissal, it was written that the Claimant’s “terminal position with the bank will be communicated in due course”. Yet, no such ‘terminal position’ has been communicated to the Claimant as stated in the said letter of Dismissal.
Again, counsel, argued that the DW in his Witness Statement on Oath, testified that the Claimant has been paid his entitlement /benefits “up to the time of his dismissal from the Defendant’s service”, but no evidence of such payment was tendered. To counsel, that testimony is contradictory as the Defendant also stated that the Claimant is not entitled to any benefit since he was dismissed. He urged the court to so hold.
Learned Claimant’s counsel finally submitted that since the Claimant’s purported dismissal was not in line with the HR Disciplinary Policy of the Defendant and the Claimant was not reimbursed his withheld salaries, the Claimant was entitled to recover same, having been unlawfully dismissed from the services of the Defendant. Counsel urged the court to also award N5, 000,000 damages in favour of the Claimant for the Defendant’s flagrant breach of the provisions of exhibit DA1, which resulted in gross miscarriage of justice against the Claimant, as the said recommendation of the Defendant’s Disciplinary Committee was not supported by its findings at the proceedings, and not in line with express and unequivocal provisions of exhibit DA1 (particularly paragraph 15.1.7). He cited and relied on Spring Bank v. Babatunde (2011) LPELR-4975 @t page 21, paragraphs A-D, which held that: “… Where however the contract of employment is terminated in a manner inconsistent with the terms of the contract of employment, the master must pay for the breach”.
COURT’S DECISION
I took active part in the proceedings; painstakingly read the pleadings and processes, as well as submissions canvassed in the Final Written Addresses filed and exchanged by respective Counsel in advancing the case of the parties they represent, and keenly watched the Witnesses testify and noted their demeanors, and carefully evaluated the evidence tendered as exhibits in the proceedings, and conducted independent research for reliable authorities to resolve the issues in dispute between the parties.
At the proceedings of 2nd November 2017, in line with case management policy of the court, a directive of hearing of the Notice of Preliminary Objection filed by the Defendant together with the Substantive Suit was made pursuant to Or.18 R.2 (3) NICN (Civil Procedure) Rules 2017. As the issue bordering on jurisdiction of court is a paramount and radical one and always occupies a pride of place in the proceedings towards addressing of issues raised for determination for effectual resolution of the matter in dispute between the parties before the court, the issue bordering on the Notice of Preliminary Objection ought to be first considered and determined before delving into the resolution of issues relating to the Substantive Suit. For if it comes to the fore that the court lacks jurisdiction to hear and determine a subject matter even for procedural defect, that is the end of the judicial exercise of power in entertaining the suit and the rest of the issues awaiting determination abate forthwith, having lacked foundation to rest upon and anchor judicial efforts for valid resolution of the matter in dispute.
On that note, the issue 1 raised by the Defendant’s Counsel relating to the Notice of Preliminary Objection is now due to be considered and determined.
THE NOTICE OF PRELIMINARY OBJECTION:
Learned Defendant’s counsel pointed that he had filed a Preliminary Objection on 03/03/2017 seeking for an order of the Court striking out or dismissing this case for lack of jurisdiction on the following grounds:
(i) The jurisdiction of the court has not been activated.
(ii) The cause of action/claim has not arisen; it is therefore premature and
incompetent.
(iii) The dispute resolution mechanism has not been exhausted by the
Claimant.
(iv) The pre-condition set by the Bank in the Group Staff Handbook with
Policy Document No. HRG: 001 which was in force since August 1, 2010 has not been exhausted.
(v) The Claimant’s action is premature and incompetent.
Counsel incorporated the arguments in the Written Address on the Motion on Notice for Preliminary Objection and raised it as issue 1 in his Final Written Address- Whether having regard to the Dispute Resolution Mechanism put in place by the Defendant, the jurisdiction of the Court has been activated and the cause of action has arisen. Arguing the issue, counsel submitted that a court is seized of jurisdiction if the condition precedent for commencement of an action has been complied with, citing the locus classicus of Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Counsel further submitted that it follows that where there are mandatory provisions as to how an aggrieved ex-employee is to pursue a remedy for the perceived wrong the same must be complied with.
Counsel refers to Paragraph 6.7 of the U.B.A. Group Staff Handbook Policy Document No: HRG: 001 dated June 2010 which was approved by the Defendant’s Board on 19th June 2010 and came into effect on August 1 2010. This document was attached as Exhibit A in the Affidavit in Support of the Notice of Preliminary Objection dated 3rd March 2017.
Learned Defendant’s counsel hauled in a myriad of cases, such as: Professor Greg I. Anyanwu v. University of Jos (2014) LPELR- 22556(CA); Akintemi v. Onwumechili (1985) 1 NWLR (Pt.1) SC 68; University of Ilorin v. Oluwadare [2006] 14 NWLR (Pt.1000) SC 751; University of Jos v. Ikegwuoha [2013] 9 NWLR (Pt.1360) SC478; Daniel v. Adamawa State University, Mubi (Unreported Appeal No. CA/YL/07/2017 delivered on 7th December, 2017, to anchor his submission to the effect that internal/domestic remedy ought to be exhausted before any action is commenced as laid down in the Staff HR Policy document of the Defendant, in the absence of which the suit is liable to be dismissed/struck out.
According to the Defence counsel: “In this instant case, the cause of action has not yet arisen because the Claimant has not exhausted the internal dispute resolution mechanism which he assented to upon the acceptance of his terms of employment. He cannot be heard to say that he is an ex-employee and this provision does not apply to him because the provision covers cases where employees and ex-employee have any dispute with the Defendant. The Claimant’s case covers disputes by ex-employees”.
On the Claimant/Respondent’s part, learned Claimant’s counsel also incorporated his submissions in the Written Address on the Counter-Affidavit filed in opposition to the Motion on Notice for Preliminary Objection challenging the court’s jurisdiction. His submissions were made part of his submissions on the issue 2 he raised for determination in his Final Written Address (paragraphs 5.45- 5.50) dated and filed on 7th March 2018.
Counsel contended that the case before the court was commenced by due process, and that it is competent and the court has jurisdiction to entertain same. He pointed that the Defendant/Applicant placed reliance on Paragraph 6.7 of its Handbook (Exhibit A of the Preliminary Objection) and Stage 1 of Paragraph 6.7 requires the Claimant/Respondent to report any claims or grievances to the Head of Human Capital Management of the Defendant for resolution, and in compliance with the provision, the Claimant/Respondent wrote a letter dated 6th February 2015 (Exhibit A of the Counter-Affidavit) to the Head of Human Capital Management of the Defendant stating his claims and grievances, but in its Reply to the said Claimant’s letter, the Defendant by its letter dated 6th March 2015 (Exhibit B 1 of the Counter-Affidavit) foreclosed possible mediation or resolution of the matter, since, instead of referring the matter to Mediation or any Court-connected Multi-Door Courthouse or ADR Centre in line with Stage 2 of the Paragraph 6.7 of exhibit A, the Defendant/Applicant in the last paragraph of the said letter wrote: “... Your client is not an employee of the Bank and so is not entitled to any payment from the Bank”.
Counsel argued that by this Defendant’s posture in the said Reply, it has failed to give effect to the provisions of Stage 2 of paragraph 6.7 of its handbook. Counsel then wondered,” with this emphatic position and unequivocal reply of the defendant, what internal mechanism of the defendant is then available to the claimant in the circumstance?”
Counsel further contended that the provisions of the Defendant’s handbook cannot take away or override the powers/jurisdiction of the court and the constitutional rights of the Claimant to ventilate his grievances in court as enshrined in Section 6(6) b of the Constitution of the Federal Republic of Nigeria 1999(as Amended), placing reliance on G.E.C. Ltd v. Duke (2007) ALL FWLR (Part 387) page782, @p. 789, Ratio 5, where the apex court held that: “Access to courts is a constitutional right which can only be taken away by a clear provision in the Constitution. It cannot be taken away by implication or speculation by the courts.” To counsel, such provision in the Defendant’s handbook is unconstitutional as it tends to conflict with the enormous jurisdiction accorded this court under Section 254C (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended by the Third Alteration Act, 2010).
Concluding, learned Claimant’s counsel submitted that all the authorities cited or relied on by the Defendant/Applicant’s counsel are irrelevant, misleading and inapplicable in the instant case, and urged the court to dismiss the preliminary objection for being frivolous, misconceived and constituting an abuse of court process.
I have read and reviewed arguments for and against the issue of jurisdiction as canvassed by the respective counsel for the parties. I also adopt the sole issue relating to the Notice of Preliminary Objection, that is the issue 1 submitted for determination by the Defendant’s counsel in his Final Written Address- Whether having regard to the Dispute Resolution Mechanism put in place by the Defendant, the jurisdiction of the Court has been activated and the cause of action has arisen?
The relevant Paragraph 6.7 of the U.B.A. Group Staff Handbook Policy Document No: HRG: 001 dated June 2010, and said to have been approved by the Defendant’s Board on 19th June 2010 and came into effect on August 1 2010, which was attached as Exhibit A in the Affidavit in Support of the Notice of Preliminary Objection dated 3rd March 2017, reads thus:
“UBA GROUP AND EX-EMPLOYEES DISPUTES.
STAGE I
If after leaving the employment of the group an ex-employee has any claim or grievances against the Group, he/she shall be required in the first instance to report the matter to the Head of Human Capital Management for resolution.
STAGE II
If the matter is not satisfactorily resolved within 90 days, the matter may be referred to Mediation at any court connected multi-door Courthouse or any other Alternative Dispute Resolution Centre or forum for resolution.
However, if the parties fail to reach agreement on the forum and/or where a Court Connected Multi-door Court House does not exist in the state where the ex-employee resides, the matter shall be referred to the nearest Court Connected Multi Door Court House.
PROVIDED ALWAYS that the procedure for resolution of disputes herein specified shall not preclude the legal right of an ex-employee to resort to litigation in the settlement of a dispute where agreement cannot be reached by mediation. However, the procedure specified above shall first be followed before resorting to litigation”.
A close review of the paragraph 6.7 of the exhibit A, would reveal that it tends to compel the ex-employee to first return to the employer with complaints and then exhaust an uncertain procedure of Alternative Dispute Resolution (ADR) within and outside the employer’s setting before exercising his/her right to resort to court to litigate the dispute. Learned Defendant/Applicant’s counsel rationalized the basis and imperativeness of the clause, thus: “It is a known fact that litigation leaves a bad taste in the mouth of litigants and destroys the reputation of companies like the Defendant in this matter. That is why the Defendant came up with a fair policy for the resolution of disputes. This clause is fair in the sense that the defendant rather than being ‘The Judge, Jury and Executioner’ subjects itself to a Court Connected Multi-Door Court House, where disputes between it and its employees or former employees are resolved”.
I however, take the view that a major hallmark of ADR is its voluntary posture and as a dispute resolution mechanism, an ADR clause should provide a clear and ascertainable road map to effective resolution of the matter between disputing parties. Where an ADR Clause rather provides an uncertain procedure inhibiting effective dispute resolution, it has failed in its primary mission to provide alternative to litigation. In the instant case, there is no clear evidence of where is the ‘nearest Court Connected Multi Door CourtHouse’, since there is no evidence on record, that there exists a court-connected multi-door court house in Adamawa State Judiciary or at the other neighouring States’ Judiciary in the North-Eastern Nigeria of Bauchi, Bornu, Taraba and Yobe States.
It is therefore, my humble but sustained view and I hold that such an uncertain and clumsy clause of ADR is certainly not an effective dispute resolution clause as envisaged by the promoters of ADR providing a panacea for congested and often distasteful outcome of litigation.
From the records, even when parties are not very sure of the status of the employment (whether the Claimant has become Ex-employee, based on the alleged dismissal by the Defendant), the Defendant has classified the Claimant as an Ex-employee and invoked the provisions of their dispute resolution relating to Ex-Employees. In my view, the issue is not much of whether the Claimant by his Solicitors’ letter of Demand and the Reply by the Defendant constitutes compliance or not, as canvassed by the learned Claimant’s counsel, but it is more of the appropriateness of the said provision requiring an Ex-employee to return to exhaust an internal/domestic dispute resolution mechanism set up by the Defendant for Ex-employees.
On whether the said clause constitutes a condition precedent to litigation, which is the thrust of the preliminary objection, I have reviewed a couple of authorities on this issue including those cited and relied on by the Defendant/Applicant’s counsel. I have come to a standpoint that the gamut of the legal authorities relied on by the learned Defendant/Applicant’s counsel and other associated authorities, regarding imperativeness of exhausting domestic/internal remedy as constituting bar to litigation if not complied with, is premised on the fact that the disputing parties are all within the same domestic/internal sphere in the their relationship at the point of litigation, and not using a provision classified for ‘Ex-Employees’ or external persons. I so hold.
Thus, the cases of : Professor Greg I. Anyanwu v. University of Jos (2014) LPELR- 22556(CA); Akintemi v. Onwumechili (1985) 1 NWLR (Pt.1) SC 68; University of Ilorin v. Oluwadare [2006] 14 NWLR (Pt.1000) SC 751; University of Jos v. Ikegwuoha [2013] 9 NWLR (Pt.1360) SC478; Daniel v. Adamawa State University, Mubi (Unreported Appeal No. CA/YL/07/2017 delivered on 7th December, 2017), cited and relied on by the Defendant’s counsel, were all based on provisions for internal/domestic forum for both parties, which were copiously stated in each of the judgments, but not as external parties to each other by way of being ex-employee, as in the instant case. None of the authorities was based on a provision for ‘EX-EMPLOYEE’.
To that extent, in my humble but considered view, these authorities are distinguishable and are consequently, not applicable to the facts and circumstances of the instant case, particularly as they did not consider similar provisions imperi materia with the Paragraph 6.7 of the U.B.A. Group Staff Handbook Policy Document No: HRG: 001 dated June 2010. I so hold.
The rationale for compelling the Ex-employee to return to the Defendant’s Staff (Head of Human Capital Management) to make complaint and seek resolution upon being aggrieved, is in my view, of doubtful efficacy, as it tends to restrict an Ex-employee who has become an external aggrieved party from litigating an issue against the Defendant organization; the former employer. Such requirement in my humble view, is not in tandem with best practice of labour relations, and can be ‘akin to compelling divorced couple to return to their erstwhile matrimonial bed as forum for resolution of alimony issue’.
Accordingly, to insist that an Ex-employee must submit to this kind of forum even fraught with an uncertain dispute resolution procedure, will unwittingly shackle the Claimant’s constitutional right to gain access to court to ventilate his grievance against his Ex-employer, the Defendant. I so hold.
Again, courts all over the world guard their jurisdictions jealously, particularly in Nigeria, where the access to court is a guaranteed right under Sections 6(6); 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). Thus, a provision in any enactment which tends to restrict the easy access of aggrieved person to court to ventilate the grievance is usually construed strictly by courts. In Amadi v. N.N.P.C [2000]10 NWLR (Pt.674) SC76, the Supreme Court held that:
“Regulations of the right to access to the court abound in the rules of procedure and are legitimate. It seems to be accepted that where an enactment regulates the right of access to the court in a manner to constitute an improper obstacle to access the court, such enactment could be appropriately regarded as an infringement of section 36(1) rather than an infringement of section 6 of the constitution”.
Such unwarranted restrictive provision is liable to be struck down. Accordingly, I find and hold that the provisions of Paragraph 6.7 of the U.B.A Group Staff Handbook Policy Document No: HRG: 001 dated June 2010, constitutes an improper obstacle in the way of the Claimant, being an Ex-employee of the Defendant, to accessing the court to ventilate and litigate his dispute with the Defendant, his Ex-employer, before this court, and as such, I hereby affirm the competency of this suit and hasten to invoke the jurisdiction of the court to entertain same.
I also make haste to disagree with the learned Defendant’s counsel’s submission that cause of action has not risen in this matter for mere fact that a perceived condition precedent has not been complied with to institute the suit. Counsel may have been beclouded by a misconceived view of the application of the principles of cause of action and condition precedent to commencement of action. I so hold.
On the whole, I find no merit in the preliminary objection, and it is hereby dismissed. I so hold. I now assume jurisdiction to determine the issues slated for determination in the substantive suit.
THE SUBSTANTIVE SUIT:
The two remaining issues (ii) and (iii), which was raised by the Defendant’s counsel, are:
(i). Whether based on the totality of the evidence before the Hon. Court, the Claimant
has proved his case to be entitled for the reliefs claimed?
(ii). Whether having regard to the Claimant’s admission of his suspension by the
Defendant, the Claimant is entitled to the reliefs sought for payment of his salaries
and allowances during the period of his suspension?
The Claimant’s Counsel’s own two issues raised for determination are:
1. Whether the claimant is wrongfully dismissed?
2. Whether the claimant is entitled to his claims?
The respective issues raised by both counsel are closely related and can conveniently be subsumed and taken together under the following two encompassing issues:
(1). Whether the Claimant is entitled to relief sought in respect of payment of salaries
and allowances during the period of his suspension?
(2) Whether the Defendant has proved his case and entitled to the reliefs sought?
I will proceed to resolve the dispute along line of these two issues set out for determination.
On issue (1) -Whether the Claimant is entitled to relief sought in respect of payment of salaries and allowances during the period of his suspension: The crux of the Defendant’s submission in his similar issue (iii), is that based on the admission by the Claimant that he is on suspension and the Defendant’s exhibit DA1, the Claimant is not entitled to any remuneration from the Defendant for the service he never rendered during the period of suspension. And as stated in exhibit DA1 (the Defendant’s Group HR Disciplinary Process & Sanctions Policy No. HRG: 002 dated June 2010), suspension as a sanction for misconduct, is contained in paragraph 13.4.1 as follows: “A staff may be placed on suspension from misconduct based on the decision of the duly constituted DC or based on the recommendation of the supervisor.” And also in paragraph 13.6.1, it provides that: “Staff on suspension resulting from sanction shall not be entitled salary for the period of suspension”.
On his part, Claimant’s Counsel’s main thrust of argument on this issue, still placing reliance on the exhibit DA1, is that paragraph 13.3.5 is most applicable in this case, which provides that: “During the period of suspension, except where the staff has confessed to the fraud (which shall be zero pay), the staff has confessed to the fraud (which shall be zero pay), the staff shall be entitled to 50% remuneration for the first three months……..”. So, by virtue of the said provision the Claimant is entitled to 50% of his salary during the period of suspension. And that by the averment of the Defendant in paragraph 6 of its Statement of Defence the Claimant was said to have been suspended in line with paragraph 13.3.1 of Exhibit DA1.
What is then the status of an employee undergoing suspension? The law is that suspension does not terminate an employment relationship rather it keeps the relationship in abeyance pending final termination or resumption of the normal employer/employee relationship. See: Longe v. First Bank Plc [2010] 6 NWLR (Pt.1189) SC1; Adekunle v. UBA Plc (2016) LPELR-41124 (CA).
In the recent case of West African Cotton Co. Ltd v. Oscar Amos (Unreported Suit No. NICN/YL/10/2015, Judgment of which was delivered on June 13 2018), I took space to explain the legal regime of suspension at workplace thus:
“Although Suspension is a disciplinary measure exercised by an employer under its overriding ambit of management control over its employees, yet labour & employment legal regime recognizes two classes of suspension-one pending investigation and the other as a punishment for a disclosed infraction of rules of engagement by an employee. Thus, as an employee under suspension is still invariably a staff of the employer, the suspended employee’s entitlement to remuneration is however dependent on whether the suspension is pending investigation or punishment for alleged infraction- breach of discipline or any other offence. If it is pending investigation, the employee is deemed to be relieved of working by the employer who did not provide him work and is entitled to full remuneration unless there is an express provision in the condition of service providing that the suspension would be without pay or with half pay. This is the intendment of S.17 (1) Labour Act Cap.L1 Laws of the Federation 2004”.
What is now in issue is whether the Claimant’s suspension was for investigation purpose or for sanction after investigation and recommendation for punishment? Whereas the Defendant’s counsel views the suspension of the Claimant as a sanction, which is provided for in paragraphs 13.4.1 and 13.6.1 of the exhibit DA1, the Claimant’s counsel views it as a suspension pending investigation, which is covered under paragraph 13.3.5. Whereas suspension as a sanction attracts no remuneration, the suspension for investigation attracts 50% for the first –three months of the investigation and no payment after the expiry of the third month, but with full pay refund if the allegation did not sail through or revised upon a review.
From evidence on record, I find that the Claimant’s suspension was not as for sanction pursuant to paragraphs 13.4.1 and 13.6.1 of the exhibit DA1. Rather, it was for investigation, pursuant to paragraph 13.3.5 of the exhibit DA1. If the Defendant insists that the Claimant was suspended as sanction, then the punishment of dismissal which it also claimed it administered for the alleged infraction by the Claimant would have been suspect as amounting to double punishment of suspension and dismissal, both of which are inconsistent disciplinary measures being administered at the same time on the same incident against the same employee. In any case, there is no evidence that such was recommended by the Disciplinary panel or implemented by the Defendant as the said suspension started in February 2015 and preceded the Claimant’s invitation and appearance at the Disciplinary panel in April 2013 (about two months after the suspension). Both parties are in tandem with this settled fact right from the pleading stage; that the Claimant was suspended, even though there is no documentary evidence establishing same. Also, what are on record are the Recommendation of Dismissal by the Defendant’s Disciplinary panel (exhibit DA2) and the letter of Dismissal (exhibit CA6B).
In the circumstance, I resolve this issue in favour of the Claimant and hold that the Claimant is entitled to remuneration for the period of suspension as would be ascertained when the reliefs on suspension and dismissal would be considered in the course of this Judgment.
On issue (2) – Whether the Defendant has proved his case and entitled to the reliefs sought: The case of the Claimant points to two main declaratory reliefs of which positive determination would ground and anchor sustenance of the other substantive reliefs, in addition to claims for recovery of outstanding entitlements. Reliefs (a) and (b) are Declaratory Reliefs – (a) Declaration that the suspension and purported dismissal of the Claimant by the Defendant is wrongful, unwarranted, illegal unconstitutional, null and void, and (b) Declaration that the employment of the Claimant is valid and subsisting until same is validly determined by the Defendant.
What is the extent of discharge of burden of proof on the Claimant seeking declaratory reliefs? In Dim v. Enemuo [2009] 10 NWLR (Pt. 1149) SC 353@Pp.380-381, Paras.F-D, the Supreme Court held:
“The rules of court and evidence relieve a party of the need to prove what is admitted. However, where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in pleading of the defendant, that he is entitled to the declaration. Thus, in order to obtain a declaratory relief as to right, there has to be evidence which supports an argument as to the entitlement to such a right. The right will not be conferred simply upon the state of the pleadings or the admission therein. In other words, the court does not make declarations just because the parties to the litigation have chosen to admit something. The court declares what it has found to be the law after proper argument, not merely after admission by the parties. There are no declarations without argument. In the instant case, it was wrong for the Court of Appeal to have held that because the appellant did not lead evidence as to paragraph 3 and 4 of the statement of defence, he has conceded to paragraphs 2 and 3 of the statement of claim and that the respondent was thereby entitled to judgment by operation of law”.
That means that admission of the Claimants’ pleadings by the Defendants is not enough to anchor and sustain reliefs bordering on declaration of rights. To ascertain if the Claimant satisfied this requirement, the pertinent question remains, did the Claimant lay sufficient and cogent evidence to support his declaratory reliefs? In my view, the key element of relief (a) – Declaration that the suspension and purported dismissal of the Claimant by the Defendant is wrongful, unwarranted, illegal unconstitutional, null and void, is whether the Claimant has shown that his suspension and subsequent dismissal by the Defendant was not properly done and followed due process as required in the condition of service guiding the employment relationship between the Claimant and the Defendant?
I have earlier dealt with the issue of suspension, and had come to the finding that, from available evidence on record based on the pleadings and adduced evidence at the trial, that the Claimant’s suspension was not for sanction pursuant to paragraphs 13.4.1 and 13.6.1 of the exhibit DA1. Rather it was for investigation, pursuant to paragraph 13.3.5 of the exhibit DA1.
With this finding, it is clear and I hold that the Claimant was rightfully suspended for investigation purposes in line with the provisions of paragraph 13.3.5 of the exhibit DA1, to enable the Defendant carry out comprehensive investigation into the allegation of gross misconduct of ‘vault lending’ leveled against the Claimant. This suspension, the Defendant did in February 2013 and proceeded to set up a Regional Disciplinary Committee in line with the prescriptions of the exhibit DA1 to conduct the investigation, and the panel met and took evidence from the Claimant and other concerned parties sometime in April 2013, and delivered its recommendation.
What is in issue is that the outcome of the investigation (findings & recommendation) was not duly communicated to the Claimant by the Defendant, until the Claimant through his counsel wrote a letter of demand in March 2015 for his entitlements and outstanding accrued benefits (exhibit CA5), and it was only then that the Defendant, in a reply in May 2015 (exhibit CA6A) confirmed that the Claimant was guilty of gross misconduct and was recommended for dismissal, of which the Defendant implemented by the enclosed letter of Dismissal dated May 2013 (exhibit CA6B).
Although the Claimant contends that the Defendant did not communicate the outcome of the Disciplinary panel to him, up to 6th March 2015 via the Defendant’s Reply to the Claimant’s demand letter of 6th February 2015 (exhibit CA6A), the Claimant had gone ahead to challenge the dismissal (contained in exhibit CA6B) as wrongful and occasioning miscarriage of justice against him. There is no evidence on record that the said dismissal letter was given to the Claimant. The Defendant in its pleadings and DW’s testimony ( paragraph 17 of the Witness Statement on Oath(WSO ) had made a quick denial and alleged that the “dismissal was duly communicated via Business Manager of Yola Main Branch who confirmed that his dispatch Rider delivered same at the Claimant’s house in Yola”. However, at the trial, when asked under cross-examination: “In paragraph 17 WSO, you said that the purported letter of dismissal was delivered to the Claimant, do you have any evidence to show that?” DW answered: ‘No’.
I therefore find that the said letter of dismissal was not duly communicated to the Claimant to alert him of the outcome of the Disciplinary panel he attended while serving suspension pending investigation of his alleged infraction on duty. I so hold.
Nevertheless, I will proceed to evaluate evidence relating to the issue of dismissal with a view to determine whether it was wrongful or not. The onus of proof is on the Claimant employee, who alleges that his dismissal is wrongful/unlawfully to prove the wrongfulness/unlawfulness of the dismissal. Thus, it is the duty of the Claimant to show by credible evidence how the alleged dismissal was wrongful. In Ndili v. Akinsumade [2000] 8NWLR (Pt.668)293 ;( 2000) LPELR-6910(CA), Pp.65-66, Paras. D-A, the court set out the test to adopt to determine whether an employee was wrongfully/unlawfully dismissed, thus:
“The test of whether the dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the dismissal conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rules of natural justice so as to render the formal compliance a travesty”
Applying the test on evidence on record, the Claimant, in his evidence, frontally challenged the dismissal as wrongful and upon a dispassionate evaluation of adduced evidence by the parties, four main grounds of challenge can be distilled- 1. That his superior officer (one Innocent Achor, the Area Operations Manager-AOM) who gave him the instruction to transfer money from the suspense account of the Defendant bank, to a certain account which later was alleged to be vault lending and constitutes misconduct that led to his suspension and subsequent dismissal, was a member of the Regional Disciplinary Committee that tried him and made the recommendation for his dismissal (paragraphs 12-17 of the Claimant’s Witness Statement on Oath; paragraphs 12 of the Defendant’s Witness Statement on Oath and Exhibit DA2- Minutes of the Regional Bank Disciplinary Committee Sitting on 25th March 2013- List of Committee Members). 2. That he was merely obeying his superior’s instruction as the Branch Operations Manager (BOM) of the Defendant bank, and did not engage in vault lending since the account in issue was not a customer account and no money was lost by the Defendant. ( paragraphs 12-15 of the Claimant’s Witness Statement on Oath and Exhibit DA2- Minutes of the Regional Bank Disciplinary Committee Sitting on 25th March 2013 -Committee’s Recommendation). 3. That the punishment of dismissal was not the appropriate punishment for the finding of the Disciplinary Committee which was that the unauthorized vault lending alleged against him ‘was not with fraudulent intent and has not caused any loss of funds to the bank’, contrary to the prescribed punishment of dismissal in Paragraph 15.1.7 of exhibit DA1 (HR Disciplinary Process & Policy dated June 2010), which is for ‘unauthorized lending resulting in a financial loss’, and that was not the finding in the Claimant’s case. Consequently, the punishment of dismissal meted for him was contrary to constitutional prescriptions in Section 36(8) Constitution of the Federal Republic of Nigeria 1999(as Amended) to the effect that no one shall be punished for something not constituting an offence in a written code/rules or punished beyond prescribed punishment for an offence at the time it was committed. (Exhibit DA2- Minutes of the Regional Bank Disciplinary Committee Sitting on 25th March 2013-Committee’s Recommendation). 4. That the said superior officer (Mr. Innocent Achor, the AOM, that gave him the instruction, was neither suspended nor dismissed by the Defendant, thereby amounting to double standard and indiscriminate application of the Disciplinary Process of the Defendant bank (paragraphs 18 of the Claimant’s Witness Statement on Oath; paragraphs 14 of the Defendant’s Witness Statement on Oath and Exhibit DA3- Minutes of Corporate Office Disciplinary Committee Sitting (CDC) on June 28 2013-Committee’s Observations & Comments and Committee’s Recommendation).
The law is also quite settled that in an employment relationship governed by common law rule of master/servant, as in the instant case, the master can terminate the employment with or without reason, but where the employer terminates the employment with reason, particularly based on allegation of misconduct, and the employee challenges same, the evidential burden is on the employer to justify the allegation of misconduct for the dismissal. In Shell Petroleum Co.Ltd v. Olanrewaju [2008]18 NWLR (Pt.1118)SC1@Pp.19-20, Paras. H;A-B, the Supreme Court per Tabai JSC, held :
“The guiding principle which has been articulated and applied in many cases including Olatunbosun v. N.I.S.R Council (1988) 1NSCC (1025)188, is that an employer is not bound to give reasons for terminating the appointment of his employee. But whereas in the 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. In the case, the appellant, having given gross misconduct to warrant his dismissal, has the onus to establish that the respondent was indeed guilty of alleged misconduct to warrant his dismissal. And in a case such as this, the court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached”.
Of course, that is also the submission of the learned Defendant’s counsel, when he cited and relied on Joseph & Ors. v. Kwara State Polytechnic (2013) LPELR- 21398 (CA) where the court held thus:“……I agree that under a common law principle of master/servant relationship, an employee can dismiss for any act of misconduct, which must be established by evidence, if the dismissal is challenged in Court.” To justify the reason for the dismissal, the Defendant’s contention is that the Claimant was involved in an act of ‘vault lending’ which amounts to gross misconduct and punishable by Dismissal in line with the recommendation of the Disciplinary panel that investigated the matter. And that regardless of whose instructions a staff follows, the staff is liable for carrying out any action that contravenes the Defendant’s policy. I ask, has the Defendant led credible evidence to justify the Dismissal, as that is the evidential burden now on it.
For clarity, I will reproduce four relevant pieces of evidence adduced at the proceedings- Exhibit DA1-HR Disciplinary Process & Sanctions Policy dated June 2010- Paragraph 15.1.7 ; Exhibit DA2- Minutes of the Regional Bank Disciplinary Committee Sitting on 25th March 2013-Committee’s Recommendation and Exhibit DA3- Minutes of Corporate Office Disciplinary Committee Sitting (CDC) on June 28 2013-Committee’s Observations & Comments and Committee’s Recommendation and Exhibit CA6B- Letter of Dismissal dated May 3 2013:
1. Paragraph 15.1.7 of the HR Disciplinary Process & Sanctions Policy dated June 2010- Exhibit DA1 reads:
“15. Offence Category
15.1 Dismissal
15.1.7 Unauthorized lending resulting in a financial loss”.
2. Minutes of the Regional Bank Disciplinary Committee Sitting on 25th March 2013 -Committee’s Recommendation -Exhibit DA2 reads:
“This is an established case of vault lending by the BOM- Moshood Yusuf and the Cash Officer- Galadima Yakubu, though it was not with fraudulent intention and there was no loss of funds to the Bank; The Committee recommends that Mr. Moshood Yusuf and Galadima Yakubu should be Dismissed from the services of the Bank in line with GMD’s approval and HR Disciplinary Process & Policy of August 2010 to serve as deterrent to others”.
3. Minutes of Corporate Office Disciplinary Committee Sitting (CDC) on June 28 2013-Committee’s Observations & Comments and Committee’s Recommendation- Exhibit DA3 reads:
“Committee’s Observations & Comments
The Committee noted that the cash for deposit of =N=268,000.00 was not provided for by the AOM at the time it was made on 08/11/2012 and was not refunded even as at 18.06.2013 (seven months afterwards) until investigations commenced into the case. The account of the AOM was not consistently funded (for 4 months) to accommodate the cheque for =N268,000.000 between November, 2012 and February, 2013 and he took no step to pay the money he borrowed. It was at the instance of the investigator, that the sum of N268.000.00 (being the amount on the cheque) was transferred by the AOM to the account of the former BOM on 19.06,13 as the fund had been recovered from the BOM before he was existed”.
“Committee’s Recommendations
Based on the foregoing, the committee recommends that innocent Achor’s appointment be terminated for services no longer required as he clearly demonstrated doubtful integrity for his actions which contributed to the BOM borrowing money from the vault. Also, the committee upheld the dismissal recommendation of the Cash Officer and BOM”.
4. Exhibit CA6B- Letter of Dismissal dated May 3 2013 BUT attached to the letter dated 6th March 2015- Exhibit CA6A, reads:
“UBA
United Bank for Africa
UBA/R/HCM/INRI&WE/LOD/GO/990
May 3, 2013
Yusuf Ayangbade Moshood
23, Damilu Jimeta
Yola, Adamawa State.
Dear Moshood,
LETTER OF DISMISSAL
This is to advise that you have been dismissed from the services of the Bank with immediate effect for gross misconduct. As part of the exit clearance/handover process, kindly surrender your identity card, unused cheque leaves and any Bank’s property in your possession to your supervisor. Please be informed that your terminal position with the bank will be communicated to you in due course.
Thank you.
Yours faithfully,
Per pro: UNITED BANK FOR AFRICA PLC
ENOBONG EGERE THOMPSON ISIBOR
Industrial Relations& Work Ethics Industrial Relations & Work Ethics
Cc: BM, 36 Galadima Aminu Way, Jimeta, Yola Business Office”.
A critical and dispassionate appraisal of the exhibits set out above and testimonies of CW and DW at the trial reveals the following findings:
i. Mr. Innocent Achor, the superior officer-Area Operation Manager (AOM) of the Claimant while away called him and instructed the Claimant (BOM) to credit=N268, 000.000 on his behalf to an account belonging to Catholic Men’s Organization and the Claimant transferred the money from the vault (suspense account). Upon return to duty, the Defendant handed him a cheque which account was not funded regularly by the AOM, to accommodate the sum borrowed from the vault. The Claimant was later summoned to disciplinary trial for offence of vault lending, which he attended along with other staff, including the Cash Officer, one Galadima Yakubu under the Claimant’s supervision, as Branch Operations Manager (BOM).
ii. The said Mr. Innocent Achor, who knows the true facts of the allegation as a principal participant, was a member of the Disciplinary Committee and took active part in the recommendation of Dismissal for the Claimant, as his name was listed as No.2 in the Exhibit DA2-Minutes of the Regional Bank Disciplinary Committee Sitting on 25th March 2013.
iii. The finding of the Regional Bank Disciplinary Committee was that though there was ‘an established case of vault lending by the BOM- Moshood Yusuf and the Cash Officer- Galadima Yakubu, it was not with fraudulent intention and there was no loss of funds to the Bank’. The amount in issue was recovered and paid back by the Claimant even before his exit (the suspension and later dismissal). The Committee nevertheless recommended that Mr. Moshood Yusuf ( Claimant) and Galadima Yakubu should be Dismissed from the services of the Bank in line with GMD’s approval and HR Disciplinary Process & Policy(Exhibit DA1). Upon which the Claimant was ‘dismissed from the services of the Bank with immediate effect for gross misconduct’, as per Exhibit CA6B.
iv. Punishment of Dismissal is for offence of ‘Unauthorized lending resulting in a financial loss’, by virtue of Paragraph 15.1.7 of the HR Disciplinary Process & Sanctions Policy dated June 2010- Exhibit DA1.
v. It was not until an Appeal for review of the punishment of dismissal lodged by the Galadima Yakubu, that the Defendant reviewed the acts of the AOM, Mr. Innocent Achor. The Corporate Office Disciplinary Committee Sitting (CDC) on June 28 2013 confirmed the active role of the AOM, Mr. Achor, and that the money was paid back to the Claimant by Mr. Achor on 19.06.13 as the fund had been recovered from the BOM before he was existed’.
vi. The Corporate Office Disciplinary Committee Sitting (CDC) found Mr. Achor culpable but recommends that Mr. Achor’s appointment be terminated for services no longer required as he clearly demonstrated doubtful integrity for his actions which contributed to the BOM borrowing money from the vault”. However, the Committee upheld the dismissal recommendation of the Cash Officer and BOM (the Claimant).
Flowing from the above findings, it is my view and I hold that the Claimant’s Dismissal was not justified by the Defendant. Accordingly, the Claimant’s Relief (a) succeeds to the extent that his said dismissal by the Defendant is wrongful. It is hereby so declared wrongful dismissal.
In Relief (b), the Claimant is praying for a Declaration that the employment of the Claimant is valid and subsisting until same is validly determined by the Defendant. In employment of this kind, which is not laced with statutory flavour, but governed by common law master/servant relationship, it would amount to imposing a servant on an unwilling master even if the act of the master is found to be wrongful, to declare that the employment is still valid and subsisting, in the face of exhibit CA6B, the Claimant’s dismissal letter. The Supreme Court in the Dudusola v. Nigeria Gas Limited [2013] 10 NWLR (Pt.1363)423 @436, Paras.D-E, put it succinctly thus:
“Termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant, employer and employee. A servant (employee), even though willing and able, cannot be imposed on an unwilling master (employer)”.
The remedy can only be assuaged in damages and nothing more. See: U.B.N v. Ogboh [1995]2NWLR (Pt.380)647. Accordingly, this relief fails, and I hereby decline to make the declaration as prayed. I so hold.
Relief (c), is a substantive relief for the sum of N28,621,734.73 (Twenty Eight Million, Six Hundred and Twenty One Thousand, Seven Hundred & Thirty Four, Seven Three Naira Only) being the accrued earnings and entitlements from the Defendant as at 31st December, 2014. This constitutes a lump sum representing some claims for the period from his suspension in February 2013 to the end of December 2014, before his Solicitor wrote in March 2015 inquiring of his employment status due to the prolonged suspension and including sums allegedly accrued and due to the Claimant as at February 2013 prior to the suspension and subsequent dismissal. Claimant had in paragraph 19 of his pleadings averred that “as a Senior Banking Officer in the employment of the defendant, his accrued earnings and sundry entitlements as at February 2013 when he was suspended by the defendant is in the sum of N12,998, 068.73 (twelve million nine hundred and ninety eight thousand, sixty eight naira seventy three kobo only”. No further explicit detail explaining how and when this figure arose from as a debt was detailed or established at the trial. The Defendant reacted in paragraph 18 of its Statement of Defence and made a general denial of the claims contained in paragraphs 18-23 (inclusive of the paragraph 19) of the Claimant’s pleading, and stated thus: “The Defendant denies paragraphs 18-23 and puts the Claimant strictest proof (sic)”.
The Defendant had also earlier reacted and denied any indebtedness to the Claimant, in respect of the claim of the whole sum of N28, 621,734.73, in its Reply dated 6th March 2015 (exhibit CA6A) to the Claimant’s Solicitors’ demand letter dated 6th February 2015 (exhibit CA5), when it stated: “…in view of the foregoing, your client is not an employee of the Bank and so is not entitled to any payment from the Bank”. DW in his paragraph 15 of his Witness Statement on Oath averred that: “all the Claimant’s entitlements were paid up unto (sic) the time of dismissal from the Defendant’s service”.
Learned Claimant’s counsel had harped on this DW’s averment and general traverse deployed by the Defendant, to submit that the outstanding sum was not disputed by the Defendant. I cannot rush to agree with this proposition without ascertaining who has the burden of prove to establish the alleged indebtedness, and if same has been discharged by credible evidence? This is the onerous burden of proof on the Claimant in a civil claim. In Olusanya v. Osinleye [2013] 7 NWLR (Pt.1367) SC148 @ 171, para. E (Osinleye’s case), the Supreme Court held that: “The onus is on the plaintiff who asserts in civil proceedings to plead both the facts he sought to prove and also lead cogent and credible evidence in proof of those facts on the balance of probability before judgment could be given in his favour”.
A follow-up question is, did the Claimant discharge this burden? Again, I call in aid the Osinleye’s case (supra) wherein the apex court @P.168, Paras. B-E, 171, Paras. D-E, stated thus:
“Any pleading not backed by evidence goes to no issue and should be disregarded by the court. Pleadings do not constitute evidence, and therefore where such pleading is not supported by evidence oral or documentary, it is deemed abandoned. Facts deposed to on the pleadings which are not admitted by the opponent ought to be proved by evidence or else they are deemed abandoned”.
To discharge the burden, the nearest evidence presented by the Claimant to the claim of the alleged accrued debt in the sum of N12, 998, 068.73 (twelve million nine hundred and ninety eight thousand, sixty eight naira seventy kobo only), as at February 2013, as averred in Paragraph 19 of the Claimant’s pleadings is exhibit CA7- Human Capital Management Head Office Annual Leave dated 23/01/2009, merely stated ‘Year of leave taken (2009) .Balance of leave carried forward – 187 working days”. No figure was specified or explanation given to amplify its role in the sum claimed. Even the tabulations made in the Claimant’s Statement of Facts and CW’s Witness Statement on Oath (paragraph 22 and paragraph 23, respectively) is not helpful, as it muddled up the whole claims covering the pre-suspension period to end of December 2014, without specifying clearly what items belong to the alleged pre-suspension indebtedness. This ought not to be so, In Osinleye’s case (supra)@ P. 171, Para. D, the Supreme Court held that: “It is the pleadings of parties that give the reason for proof of a claim before a court. Without proper and well informed pleadings any evidence given will have no basis and therefore go to no issue”.
In the circumstance, I find that this claim for accrued debt in the sum of N12, 998, 068.73 (twelve million nine hundred and ninety eight thousand, sixty eight naira seventy kobo only), as at February 2013 the Claimant was suspended by the Defendant has not been proved by the Claimant. Accordingly, I decline to award same as part of the total sum of N28, 621,734.73 (Twenty Eight Million, Six Hundred and Twenty One Thousand, Seven Hundred & Thirty Four, Seven Three Naira Only) being claimed by the Claimant as his accrued earnings and entitlements since his suspension.
As I had earlier resolved the issue of entitlement to salaries and allowances during the period of suspension in favour of the Claimant, and have held that the Claimant is entitled to remuneration for the period of suspension as would be ascertained when the reliefs on suspension and dismissal would be considered in the course of this Judgment, it is now time to consider that part of the Relief (c) in respect of the Claimant’s entitlement to his salaries and allowances during the period of his suspension. I have also come to the finding that, from available evidence on record based on the pleadings and adduced evidence at the trial that the Claimant’s suspension was not for sanction pursuant to paragraphs 13.4.1 and 13.6.1 of the exhibit DA1. Rather it was for investigation, pursuant to paragraph 13.3.5 of the exhibit DA1. I did also find that the said Defendant’s letter of dismissal of the Claimant (exhibit CA6B) was not duly communicated to the Claimant to alert him of the outcome of the Disciplinary panel he attended while serving suspension pending investigation of his alleged infraction on duty.
Accordingly, I hold that the period covered by the suspension is from February 2013 to March 2015 when the Claimant became aware of his dismissal from the service of the Defendant, vide exhibit CA6A dated 6th March 2015.
I maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties. In U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court can wisely lend its judicial arms to do otherwise. I so hold.
In the instant case, the Defendant bank’s rule guiding payment of salaries and allowances for employees during period of suspension for investigation purpose, as in the instant case, is set out in paragraph 13.3.5 and 13.3.6 of the exhibit DA1- HR Disciplinary Process & Sanctions Policy dated June 2010. The prescriptions are reproduced below:
“13.3.5 During the period of suspension, except where the staff has confessed to the fraud (which shall be zero pay), staff shall be entitled to 50% remuneration for the first three months. In event that the suspension exceeds three months, staff shall be placed on zero pay”.
“13.3.6 Where a staff is completely exonerated either at the instance of investigations or DC decision, the suspension shall be withdrawn and such staff shall be reimbursed with his/her withheld salaries for the period on suspension”.
The Claimant’s suspension started in February 2013 and the first three months from then should cover April 2013. There is no evidence on record that the Defendant complied with this provision of paragraph 13.3.5 of the exhibit DA1, as no sum of money was adduced in evidence to have been paid by the Defendant to the Claimant. I therefore find and hold that the Claimant is entitled to be so paid. The Claimant’s suspension lasted for more than three months, from May 2013 to March 2015 (when he became aware that the suspension was replaced with Dismissal). By paragraph 13.3.6 of the exhibit DA1, if the allegation is not proved against the Claimant or upturned on review of the Disciplinary Committee Decision, the Claimant would be entitled to be reimbursed with his withheld salaries for the period of suspension.
I have earlier declared the Claimant’s Dismissal wrongful, found and held that the Defendant did not sufficiently justify the Claimant’s dismissal for gross misconduct. Accordingly, I hold that the Claimant is entitled to be reimbursed full payment of his withheld salaries and entitlements from February 2013 to March 2015, being the period covered by the suspension pending investigation and when he became aware of his subsequent wrongful dismissal. Judgment is accordingly entered for the Claimant in the sum ascertained.
Relief (d) is praying for 10% interest per annum commencing from February, 2013 till judgment and 10% interest per annum from judgment till liquidation. Thus, the Claimant is seeking award of both pre-judgment and post judgment interest rate on the substantive sum awarded in favour of the Claimant. I had held in Alh.Saleh Buba v. Adamawa State University Consultancy Services Ltd (Unreported Suit No. NICN/YL/02/2017, Judgment of which was delivered on May 17 2018), that where the Claimant fails to make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages that is required to not only be specifically pleaded but to also provide sufficient evidence to ground its award, the claim for pre-judgment interest cannot be sustained. In Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, the Supreme Court held that: “where interest is claimed, it must be proved before it can be granted”. I therefore find and hold that the claim for pre-judgment interest having not been proved is accordingly refused and dismissed. On claim for post-judgment interest, I took the position in West African Cotton Co. Ltd v. Oscar Amos (Unreported Suit No. NICN/YL/10/2015, Judgment of which was delivered on June 13 2018), that award of post-judgment interest is guided by the Rules of the Court and based on the discretion of the court upon review of the circumstances of the case, and it would be presumptuous, speculative and role-swapping, for a party to fix the rate of post-judgment interest claimed. Accordingly, same is hereby discountenanced. I so hold.
Reliefs (e) and (g) would be taken together, as both are dealing with cost of the action. The Claimant in Relief (e) is seeking for the sum of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira) said to be the legal expenses incurred by the Claimant to recover the alleged debt from Defendant. Relief (g) is for the cost of the suit. Again, recovery of cost or professional fees for litigation is in form of special damages that ought to be pleaded with particulars and proved by credible evidence to be sustained. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost.
On review of the Claimant’s pleadings, I find that, in Paragraph 31 of the Statement of Facts Establishing the Cause of Action, the pleading aspect of the requirements for award of special damages was satisfied, when the Claimant averred that: “.. he paid his solicitors a sum of N2, 500.00.(two million , five hundred thousand naira) to recover the above mentioned earnings and entitlements the defendant failed, refused and/or neglected to pay same”. In an attempt to adduce credible evidence to sustain the pleading, similar averment was made in Paragraph 31 of the Witness Statement on Oath of CW. But then, no documentary evidence was tendered to show the payment of the solicitors’ fees or evidence of the said agreed fees pleaded and sought to be recovered by the Claimant as special damages. See: Lufthansa German Airlines v. Ballanyne [2013] 1NWLR (Pt.1336) CA 527. Accordingly, both reliefs fail and are hereby discountenanced and dismissed. I so hold.
Relief (f) prays for the sum of N5,000,000.00 (five Million Naira only) being damages for wrongful suspension/dismissal of the Claimant. I have earlier taken the position that where an employer wrongly dismissed his employee in an employment governed by the common law master/servant, as in the instant case, the remedy can only be assuaged in damages and nothing more. See: U.B.N v. Ogboh (supra). The measure of damages for wrongful dismissal has been guided by two regimes of legal principles for award of damages in employment claims; one limiting the entitlement to the period of notice not complied with as (in Olatunbosun v. N.I.S.R Council (1988) 1NSCC (1025)188) and the other that recognizes the sensitivity of the sector of the economy involved and the stigma attached to dismissed employee (as in British Airways v. Makanjuola[1993]8NWLR (Pt.309)276).
Given the circumstances of this instant case, I find that it is suitable for application of the principles in the Makajuola’s case, for the fact that the banking sector is a very sensitive sector of the economy and a regulated industry where a dismissal from employment for misconduct is a dent on the integrity and employability of the dismissed employee, who is left with the stigma and bears the challenge of career cleansing. In the Makajuola’s case (supra) @P.289 Paras.C-D, it was held that:
“The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of the alleged malpractice. If wrongful termination of employment is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of required notice. But if it is due to the later i.e malpractice, then such a termination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period the notice was required”.
In his pleadings, Witness Statement on Oath and oral testimony at the trial, the Claimant testified, and the Defendant did not dispute, how he served the Defendant for 14 years meritoriously in the core North Eastern part of Nigeria and rose to the rank of Senior Bank Officer and without blemish all through his years of service. His services was terminated by dismissal with immediate effect vide exhibit CA6B, which turned out to be declared wrongful. In the circumstance, I award the sum of N2,000,000.00 (two million naira damages in favour of the Claimant against the Defendant for the wrongful dismissal. I so hold.
For clarity and avoidance of doubt, the terms of this Judgment are as follows:
1. For the reasons advanced in the body of the Judgment, the Claimant’s Relief (a) succeeds to the extent that the Claimant’s dismissal by the Defendant is hereby declared wrongful. Consequently, I hold that the Claimant is entitled to be reimbursed full payment of his withheld salaries and entitlements from February 2013 to March 2015, being the period covered by the suspension pending investigation and when he became aware of his subsequent wrongful dismissal. Defendant is hereby ordered to compute and pay to the Claimant his said entitlements, within two months from this Judgment.
2. For the reasons advanced in the body of the Judgment, the Claimant’s Reliefs (b), (d), (e) and (g) are unsuccessful, and are hereby discountenanced and dismissed.
3. For the reasons advanced in the body of the Judgment, the Claimant’s claim for accrued debt in the sum of N12, 998, 068.73 (twelve million nine hundred and ninety eight thousand, sixty eight naira seventy kobo only), as at February 2013 the Claimant was suspended by the Defendant, as part of the total sum of N28, 621,734.73 (Twenty Eight Million, Six Hundred and Twenty One Thousand, Seven Hundred & Thirty Four, Seven Three Naira Only) being claimed by the Claimant as his accrued earnings and entitlements since his suspension as per Relief(c), fails and is hereby dismissed.
4. For the reasons advanced in the body of the Judgment, the Claimant’s Relief (f) succeeds to the extent that the sum of N2, 000,000.00 (two million naira) damages is hereby awarded in favour of the Claimant against the Defendant for the wrongful dismissal. The Defendant is hereby ordered to pay same to the Claimant, within two months from this Judgment.
5. All sums due and ordered to be paid shall be paid within two months of this Judgment. Otherwise, any default shall attract 10% interest rate per annum until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
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HON. JUSTICE N.C.S OGBUANYA
PRESIDING JUDGE
6/7/18
