IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A.A ADEWEMIMO
DATED: 13TH MAY, 2019
SUIT NO: NICN/BEN/01/2018
BETWEEN:
MRS OGOIGBE FLORENCE ……… CLAIMANT
AND
UNION BANK OF NIGERIA PLC
MR EMEKA EMUWA ………. DEFENDANTS
(GROUP MANAGING DIRECTOR/CHIEF EXECUTIVE
OFFICER, UNION BANK OF NIGERIA PLC)
REPRESENTATION:-
S. O. EIMIUHI APPEARS FOR THE CLAIMANT
OMOSOLA ODUSOLA WITH ADELANA ILORI APPEARS FOR THE DEFENDANTS
JUDGMENT
The Claimant by a Complaint before this Court on the 5th January, 2018 and amended on 22nd May, 2018, claims against the Defendants as follow:
A Declaration that the purported dismissal of the claimant from her employment, vide letter dated 23rd July 2012 is unlawful, invalid, wrongful, null and void and of no effect whatsoever.
A Declaration that the claimant is still a Senior Staff (Officer II) of the 1st Defendant and therefore entitled to her full salaries and allowances from July 2012 to date of Judgment and thereafter till the date of her lawful retirement.
An Order reinstating the claimant back to her duty post.
An Order directing the defendants to pay to the claimant her entitlements of salaries, allowances and retirement benefits of N68,080,370.00 (Sixty Eight Million, Eighty Thousand, Three Hundred and Seventy Naira).
The sum of N100, 000,000.00 (One Hundred Million Naira) being general damages for the unlawful dismissal of Claimant from her employment.
The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon, while the Defendants filed a memorandum of appearance, joint statement of Defence and other accompanying processes.
The claimant’s case is that she was employed by the 1st Defendant as a clerk by a letter dated 9th April, 1990. Upon her employment, she worked at different branches of the 1st defendant, i.e. Mission Road, Branch, Benin City and later in charge of customer service at the Auchi Branch. The claimant averred that she was promoted at various times to ‘B’ signatory and ‘A’ signatory due to her hard work and dedication to duty, and later as Officer II (Group 6) by a letter dated 13th June, 2006. Claimant further averred that by the said promotion, she was put on a basic salary and allowances of N954, 518.00 per annum with effect from 7th June, 2006.
Claimant stated that by a letter dated 23rd July, 2012, the 1st defendant summarily dismissed her from its service for an alleged gross misconduct. She stated that her aforesaid dismissal is wrongful, invalid, null and void and a deliberate breach of the clear provisions of the procedural and main collective agreement 2005, governing the terms and conditions of service of senior employees of the 1st defendant.
The claimant testified that the defendant did not afford her any opportunity to defend herself against the alleged act of gross misconduct before the purported dismissal and no query was issued to her to that effect, hence she was not aware that her job was on the line. The claimant averred that she had served the 1st defendant without blemish for over 22 years, and is supposed to retire in November 2026.
The claimant averred further that in line with the extant procedural and main collective agreement of 2005, she wrote to the defendants on 01/08/2012 requesting for the reason for her unlawful dismissal and demanded to be recalled back to duty to no avail.
Whereof the claimant claims against the Defendants as aforementioned.
The defendants were served with the Claimant’s Originating Processes in this suit on 12th January, 2018. They filed a Memorandum of Appearance, Statement of Defence, Witness Statement on Oath, List of Witness and Documents to be relied upon at the trial. The Defendants also amended their defence by leave of court and same was filed on the 10th of July, 2018.
In their amended statement of defence, the defendants averred that the claimant was not employed nor dismissed by the 2nd defendant and the claimant’s suit discloses no reasonable cause of action against the 2nd defendant. In response to Paragraph 7 of the statement of facts, the Defendants admitted that the claimant was promoted to Officer II (Group 6) by the 1st defendant in 2006 and was dismissed for gross misconduct on 23rd July, 2012. They also averred that the relationship between the 1st defendant and the claimant is that of master/servant relationship.
The defendants acknowledged that the claimant was a member of Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), when she became a senior staff, but that in 1990 when she was employed, her condition of service and disciplinary procedure is guided or regulated by the terms of the 1st defendant’s letter of employment and the 1st Defendant’s Sanction Grid, 2009.
It was the case of 1st Defendant that the claimant was issued with a query and duly responded vide email. They averred further that the 1st Defendant decided to dismiss the claimant after investigating and reviewing the claimant’s role in connection with a multifaceted clearing cheque interception fraud involving the account of Okhamena Global Services with Account number 0012821810 domiciled at Calabar main branch and Okhamena Global Services with Account number 0035919673 domiciled at Auchi Branch, both of the 1st defendant, through which fraud was perpetrated through the Calabar Clearing Centre.
The defendants stated that in line with the 1st defendant’s employment policy and operative agreement between the parties, no dismissed member of staff of the 1st defendant is entitled to payment of retirement benefit.
The defendants stated in response to the claim for salaries and entitlements for the period of 23rd July, 2012 to November 2026, that since the claimant is no longer in its employment, the 1st defendant is not under any obligation to pay the claimant the sum of N59,363,329.00 (Fifty nine million, three hundred and sixty three thousand, three hundred and twenty nine naira) or any sum of money computed by the claimant for the period of 23rd July, 2012 to November 2026.
WHEREOF the defendants urged the court to dismiss the claimant’s suit for lack of merit.
The trial in this case commenced on 8th October, 2018 with the Claimant testifying for herself as CW1. She adopted her depositions and tendered several documents which were admitted in evidence and marked as Exhibits F1– F10 and was cross examined.
The defendants opened their defence on the 12th day of November, 2018. They called one Ernest Omobhude, who testified as DW1 and tendered certain exhibits which were marked Exhibits B1 – B8 (a & b). He was also cross examined.
The defence thereafter closed its case, and the case was adjourned for parties to file their final written addresses. The Claimant’s counsel filed a motion to regularise his Final Written Address filed out of time which was granted on 28/1/2019. Parties adopted their addresses on the 21st of February, 2019 and the case was thereafter adjourned for judgement.
The Defendants adopted their Final Written Address filed on 29th November, 2018 at the hearing, in which three issues were formulated for consideration to wit:
Whether having regard to the facts pleaded and evidence led by the claimant, the claimant’s claim discloses any reasonable cause of action against the 2nd Defendant.
Whether having regard to the contract of service of the claimant with the 1st defendant, 1st defendant’s query to the claimant and the claimant’s response to the query before the 1st defendant dismissed the claimant, the claimant’s dismissal from the 1st defendant’s employment is wrongful.
Whether the claimant is entitled to the claim for #100,000,000.00 general damages and the sum #68,080,370.00 as salaries, allowances and retirement benefits having regard to the facts and evidence led in this case.
On issue one, counsel to the Defendants contended that the claim in this case do not disclose any reasonable cause of action against the 2nd Defendant and that there is no allegation that the 2nd defendant acted outside the scope of his authority. He therefore submitted that the 2nd defendant being Managing Director of the 1st defendant is an agent of a disclosed principal and cannot be sued for the action of his principal. He cited the case of Carlen Nig. Ltd vs. University of Jos (1994) INWLR (Pt. 323) 631 and U.B.A. Plc V. Ogochukwu (2016) All FWLR (Pt.825) 256 at 282 and urged the court to resolve this issue in favour of the 2nd Defendant.
On issue two, Counsel contended that the contract of employment between the parties in this suit is not governed by statute and therefore the dismissal of the claimant from the service of the 1st Defendant cannot be said to be illegal and unlawful. He submitted further that the 1st defendant’s was not in breach of the contract of service between the parties, therefore the dismissal of the claimant was also not wrongful.
Learned Counsel posited that where the claimant alleges wrongfully dismissal, the burden is on him/her to plead and prove the manner in which the terms and condition of his/her service was breached.
On the main collective Agreement of 2005 (Exhibit F2) relied upon by the claimant, learned counsel submitted that Exhibit F2 was not in force in 1990 when the claimant was employed by the 1st defendant. He therefore submitted that the Collective Agreement in operation in 1990 is the one that binds the parties, as the claimant’s letter of appointment (Exhibit F1) did not incorporate or cannot reasonably be expected to incorporate Exhibit F2 made in 2005 after her employment. The Defendant is therefore not bound to comply with the terms in Exhibit F2.
Learned Counsel submitted on the allegation of lack of fair hearing made by the claimant, that the claimant was given fair hearing vide Exhibits B1 and B2, and that even so the 1st defendant did not breach the provisions of the main collective Agreement of 2005 on fair hearing, as the obligation of the employer does not exceed disclosure of complaint to the employee and giving the employee a chance to react to them. He cited Uzondu vs. U.B.N. Plc (2008) All FWLR (Part 443) 1389 at 1399.
The counsel urged the court to resolve this issue in favour of the defendants.
On issue three, the defendants’ counsel contended that the claimant is not entitled to the claim for N100,000,000.00 general damages and the sum N68,080,370.00 as salaries, allowances and retirement benefits as special damages, as a claim for damages must naturally flow from non-compliance or breach of the contract. He cited Texaco Nigeria Plc V. Alfred G. Adegbile Kehinde (2001) 6NWLR (Part 708) 225, and stated that the claimant failed to establish her claim for damages.
In answer to the claim for the claimant’s accrued pension, the Defendants’ counsel submitted that Exhibit B4 tendered by them and the testimony of DW1, is evidence that the claimant’s pension has been remitted to her retirement account with Aiico Pension Managers, He stated that this was not contradicted by the claimant, and cited the Supreme Court decision in Ikuomola vs. Oniwaya (1990) 4 NWLR (Part 146) 617 at 624 where it was held that an unchallenged evidence is deemed admitted.
Learned Counsel submitted that the claimant is also not entitled to one month’s salary in lieu of notice as she did not plead her entitlement to it and that the court will not grant a claim for salaries, allowances and retirement benefits for a period the claimant did not work for the 1st defendant i.e. July 2012 – November 2026., citing Texaco (Nig) Plc. V. Kehinde (2001) 6 NWLR (Part 708) 225.
In conclusion, the Counsel urged the court to dismiss the claimant’s case in its entirety with costs for lacking in merit.
S.O Eimiuhi Esq adopted the claimant’s Final Written Address dated and filed on 16th January, 2019, in which three issues were formulated to wit:
Whether as a senior staff of the 1st Defendant, Claimant’s conditions of service, discipline or dismissal from office is guided or regulated by the Procedural and Main Collective Agreement, 2005 – Exhibit F2?
Whether the Defendants complied with the provisions of the Procedural and Main Collective Agreement 2005 – Exhibit F2, before the purported dismissal of Claimant from her employment?
Whether Claimant is entitled to her claims for salaries, allowances and retirement benefits for her unexpired period of employment?
On issue one, Counsel submitted that it is not in dispute that the Claimant is a senior staff in the officers’ scale, (officer II Group 6) of the 1st Defendant. She was promoted to a senior officer on 13th June 2006 and was in August 2009 transferred to Auchi branch of the 1st Defendant as the officer in charge of customer service.
He submitted that the Claimant is also a member of the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) which entered into a collective agreement with the Nigerian Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) in 2005, as disclosed in Exhibit F2. Counsel submitted that both ASSBIFI and NEABIAI are registered trade unions, specifically recognized and listed in part C, Third Schedule of the Trade Unions Act Cap T14 (Vol. 15) Laws of the Federation of Nigeria 2004, and Section 25 of the Trade Unions Act 2004 specifically gave registered Trade Unions powers to negotiate collective agreements with the employer. The claimant also posited that she paid her monthly dues to her union, and the 1st Defendant recognized the Claimant as a member of ASSBIFI by deducting her monthly dues from her salary to the association, and by necessary implication has incorporated Exhibit F2 into the contract of employment made for members of ASSBIFI. He cited Abalogu V Shell Petroleum Dev. Co. Nig. Ltd. (2003) 45 WRN page 1 at pages 23-24 (lines 45-5) and argued that even Exhibit F1 expressly or by necessary implication incorporated Exhibit F2 into the contract of employment between both parties. He submitted that it is settled law that a statute or document should not be given an interpretation that will defeat its purpose. He cited Olalomi Industries Ltd V NIDB Ltd (2010) 176 LRCN 50 at page 81 (para. UZ).
Learned counsel submitted that a collective agreement can be incorporated or embodied in the contract of service whether expressly or by necessary implication, and binding on the parties. He cited the cases of Abalogu V Shell Petroleum Dev. Co. Nig. Ltd (2003) 45 WRN 1 at pages 23-24 (lines 45-5) supra; Olusanya v UBA Plc (2017) 45 WRN 76 at page 107 (lines 30-35)
Learned counsel noted that Exhibit F1 did not at all make provision for discipline or dismissal of the Claimant but this was provided for in Exhibit F2, he also urged the Court to ignore the submission of the defence counsel relating to a purported 1990 collective agreement as it was neither pleaded nor tendered by both parties.
On issue two, Counsel to the Claimant submitted that Article 4 (iv) (a), (b) and (c) at pages 24 and 25 of Exhibit F2 gave the 1st Defendant powers to summarily dismiss a senior staff for certain acts of gross misconduct, provided; (a) a written query is issued to the employee and (b) the employee is given an opportunity to defend him/herself in writing. Counsel submitted that, in the instant case, the Defendants did not issue or give the Claimant any written query and did not also afford her any opportunity to defend herself, and that Exhibits ‘B1’ and ‘B2’ cannot qualify as a query or answer to query, on allegation for fraud or act of gross misconduct as envisaged by Article 4 (iv) (a) (i) and (c) of Exhibit F2. He therefore urged the Court to discountenance Exhibits ‘B1’ and ‘B2’.
Furthermore, the Counsel submitted that by virtue of Trade Unions Act, Cap T14 LFN 2004 (Vol. 15), both parties belong to different unions and the Act specifically recognized the Association of Senior staff of Banks, Insurance and Financial Institutions (ASSBIFI) and Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI), and these bodies are also mandated and empowered to negotiate collective bargains or agreements for employees and employers, respectively. He therefore concluded that Exhibit F2 made pursuant to the Trade Unions Act is statutorily flavoured and so also is the Claimant’s employment. He urged the Court to declare the summary dismissal of the Claimant as null and void and that her employment is still subsisting.
On issue three, the Counsel submitted that by her amended statement of facts, the claimant stated details of her entitlements of salaries, allowances and retirement benefits as a senior staff (officer II Gp 6) from July 2012 – November 2026 (the date of her lawful retirement), at a sum of N62,061,770.00 (Sixty Two Million, Sixty One Thousand, Seven Hundred and Seventy Naira) at the rate of N4,413,230.00 per annum; while her pension and gratuity was computed at N6,018,600.00 (Six Million, Eighteen Thousand, Six Hundred Naira) making a sum total of N68,080,370.00 (Sixty Eight Million, Eighty Thousand, Three Hundred and Seventy Naira). CW1 further testified to this and tendered Exhibits F4A, F4B, F4C and Exhibits F6 and F7 in proof thereof. The 1st Defendant however admitted that her annual salary was N3,747,714 (Three Million Seven Hundred and Forty Seven Thousand, Seven Hundred and Fourteen Naira) but claimant’s counsel submitted that this was short by the non-addition of her N1,404,340 annual contribution to pension fund.
He finally urged the Court to resolve all the issues in favour of Claimant and uphold her claims while ordering payment of her entitlements.
The defendants filed a reply on point of law. In the Reply, the Defendants stated that Section 17 of the Trade Unions Act is irrelevant to the relationship between the claimant and the 1st Defendant as it neither regulates nor confers any duties/obligations on both parties.
The defendants pointed out that Exhibits F1 and F2 revealed nothing to suggest that Exhibit F2 was contemplated in 1990 when the claimant was employed, hence Exhibit F2 cannot be said to be “currently in force” as disclosed in Exhibit F1 in 1990, contrary to the argument of the claimant.
In response to the argument that Exhibits B1 and B2 were not a query and answer to a query, the defence counsel stated that the exhibits need not be titled QUERY and ANSWER for it to have effect and stated that the argument that both exhibits were made during the pendency of this suit is grossly misconceived, as Exhibits B1 and B2 are computer print-outs, and the date the mail was printed out cannot be attributed to the date they were authored.
On “gross Misconduct”, counsel posited that Exhibit F5 clearly disclosed that the claimant was dismissed for gross misconduct, and it is what the employer describes as gross misconduct that amounts to it. He cited OYEDELE VS. I.U.T.H. (1990) 6NWLR (Part 155) 194.
The defendants also submitted that the Trade Unions Act does not inject the claimant’s employment with statutory flavor and that even if Exhibit F2 is incorporated by Exhibit F1, the claimant will still not be entitled to salaries and gratuity until the date of her retirement, as she cannot claim emoluments for a period she did not work for. He cited FRIDAY U. ABALOGU VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2003) 6 S.C.N.J. 262.
In conclusion, the defendants urged the court to discountenance all the submissions and arguments of the claimant in this case.
I have listened to both parties stating their cases at the trial of this case and read the submissions of counsel in their final addresses, I have also perused all the processes filed in this suit and have thereafter come up with the following issues that will best determine this suit to wit;
Whether or not the Procedural and Main Collective Agreement, 2005 (Exhibit F2) is applicable to the contract of employment between the parties in this suit.
Whether or not the summary dismissal of the Claimant’s employment is wrongful or not.
Whether or not the Claimant is entitled to the reliefs sought in her complaint and Statement of Facts (as amended).
I will at this point consider and resolve the issue of non-disclosure of a reasonable cause of action against the 2nd defendant, raised by the defendants in their amended statement of Defence and final address, before treating the issues for determination. A reasonable cause of action has been well defined in a lot of authorities to mean an aggregation of facts recognized by the law as giving the Plaintiff/Claimant a substantive right to the reliefs sought, in other words a reasonable cause of action entitles the Claimant to Judgment based strictly on the consideration of the Complaint and Statement of Facts. See BESSOY LTD V. HONEY LEGON (NIG) LTD &ANOR 2008 LPELR 8329 CA
In determining whether there is a reasonable cause of action against the 2nd Defendant in this suit, three main criteria must be considered
In the absence of the party, complete relief cannot be provided to existing parties.
The absent party claims an interest relating to the subject of the action and a disposition of the action without that person, may as a practical matter impair his ability to protect that interest.
The absence of the party leave the other person already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations.
See IGE V. FARINDE 19994 NWLR PT (354) 42
Also in ADEBAYO SOSANYA V. ENGR ADEBAYO ONADEKO & ORS 2000, 1 NWLR (677) 34 Onalaja J.C.A as he then was, held;
“What makes a person a necessary party?……..the reason which makes it necessary to make a person a party to an action is so that he should be bound by the result or the action and the question to be settled. There must be a question in the action which cannot be effectually and completely settled, unless he is a party”
See also; Green v. Green [1987] 3 NWLR (pt.61), 480; Lawal v. Federal Ministry of Environment & Urban Development & Ors [2011] LPELR-9259 (CA)
Applying the above criteria and case laws to this case, I find that the 2nd defendant in this suit is the Chief Executive Officer of the 1st defendant and as such he is charged with the general administration and decision making in the 1st defendant, a thorough perusal of the complaint and statement of facts reveals no specific allegation against the 2nd Defendant, rather all through the claimant’s pleadings her averment of facts were targeted mainly at the 1st Defendant. The more important question to be answered is that can the issues raised by the claimant be disposed off without the 2nd Defendant, the answer to this in my view is in the positive, considering the fact that the 1st Defendant is the employer of the claimant, and is a legal entity capable of suing and been sued. It is in the absence of specific allegation against the 2nd Defendant that I find that the 2nd defendant is not a necessary party, and relevant to the proper adjudication of this suit. Consequent upon the above, I hereby strike out the name of the 2nd Defendant from this suit. I so hold.
On issue one, it is the contention of the claimant that her dismissal is wrongful, invalid, null and void and a deliberate breach of the clear provisions of the procedural and main collective agreement 2005(Exhibit F2), governing the terms and conditions of her service and all senior employees of the defendant. The defendant on the other hand contended that Exhibit F2 was not in force in 1990 when the claimant was employed and as a result she cannot rely on Exhibit F2. Learned counsel for the Defendant added that the claimant’s condition of service and disciplinary procedure is guided or regulated by her letter of employment i.e. Exhibit F1 and the provisions of the Sanction Grid issued by the defendant in year 2009 as refreshed in 2012.
A thorough perusal of Exhibit F1 reveals the following;
“Other terms and conditions are as contained in our Collective Agreement, Circulars and Handbook currently in force…”
It was the case of the claimant that she is a member of Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) and paid compulsory monthly dues deducted from her salary by the Defendant while in its employment, she tendered in evidence Exhibits F4A, F4B, F4C and B7A – B7F in support. This according to the claimant’s counsel implies that the 1st Defendant tacitly recognized the Claimant as a member of ASSBIFI and by implication Exhibit F2 meant for members of ASSBIFI was incorporated into her contract of service.
The pertinent question to ask is, can the claimant rely on Exhibit F2 as the collective agreement regulating her employment with the defendant?
Exhibit F2 at page iii reads thus;
“An Agreement made this 1st day of June, 2005 between the Nigeria Employers Association of Banks, Insurance and Allied Institution (hereinafter called “the Association”) of the first part and the Association of Senior Staff of Banks, Insurance and Financial Institutions (hereinafter called “the Union”) of the other part.
This Agreement shall apply to all categories of Employees other than the Junior Staff and the Management Staff engaged in the various Establishments of the Association, excepting those Employees who have left the service.”
A careful consideration of Exhibits F1 and F2 while applying the literal interpretation reveals that the phrase “…….. currently in force..” cannot be said to have applied to an expired collective Agreement that was in existence in 1990 when the claimant was employed, considering that there is a new one currently in force i.e. Exhibit F2, as this interpretation will amount to an absurdity, in U.B.N PLC V. CHARLES OLUSOLA TOYINBO 2008 LPELR 5056 C.A, a Collective Agreement in industrial relations was defined to be an agreement expressly or impliedly incorporated into a contract of employment and enforceable. The defendant had argued that what was applicable to the claimant’s employment was the collective Agreement in force in 1990 when the claimant was employed, if that is to be upheld, then, the sanction Grid, 2009 cited by the Defendant to be applicable to the claimant in this suit is not also applicable to her, having been made in 2009 after she was employed.
In E.C.W.A v. Dele [2004] 10 FWLR (Pt.230) 297 the court held that:
“Where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination of appointment. To hold that it is the one applicable at the time of the appointment will mean that if the amended one introduces benefits such as improved conditions of service, which ought to be the case, the employee who was employed before it comes into effect will not take the benefit of the same”
Furthermore, it is not in contention that the Claimant was a senior staff of the defendant and the content of Exhibit F2 applies to all categories of employees other than the junior staff and the management staff engaged in various establishments in the industry, inclusive of the defendant, with the exception of employees that had retired/ left the service. It will be recalled that the Defendant during the course of trial, sought to tender the said Sanction Grid issued vide staff notifications dated 5th October, 2009 and 8th December, 2009 for identification, and same was rejected by this court on the basis that tendering a document for identification purpose, lacks any evidential value whatsoever, see COMMERCIAL BANK (CREDIT LYONNAIS) NIGERIA LTD & ANOR V. MRS JOKE ISHOLA & ANOR 2014 LPELR 24070 CA, where Iyizoba JCA held:
“It will appear that this matter of admitting a document for identification purposes is not covered by the law”
Also in EGWA V. EGWA 2007 1NWLR PT 1014 71, Rhodes Vivour JCA as he then was held;
“The Evidence Act makes no provision for documents to be tendered for “ID” or as “ID”. Documents are either tendered as Exhibits or not tendered at all. A document tendered for ID purposes has no probative value whatsoever; it is as if nothing was tendered”
The court is therefore precluded from relying on a rejected Exhibit regulating the employment of the claimant as contended by the defendants. There is therefore nothing before the court to proof the content of the said sanction grid and the Defendant’s assertion that this is the document guiding the disciplinary proceedings against staff of the Defendant. Needless to say, he who asserts must prove see Section 131-135 of the Evidence Act 2011; Amaechi v. INEC [2008] All FWLR (pt.407) 1. The Defendant’s assertion on the sanction grid is therefore discountenanced as unproven.
In final resolution of this issue of the applicability of Exhibit F2 to the claimant’s contract of employment, I considered the approach of the courts of England, when faced with reconciling the principle of primacy of contract and collective bargaining, the device used by the court to resolve the two principles was stated by KILNER BROWN J. in NELSON & VIOLET V. POST OFFICE 1978 1RLR 548, when he held as follows;
“It was perfectly plain that the basis of good industrial relations particularly those involving state industry of national agreement being accepted by everybody as it would lead to anarchy if individual branches or individual members of a trade union are entitled to opt out and avoid a decision democratically arrived at in the overall national connotation.”
The argument by the Defendant that Exhibit F2 had expired as of 2007, based on Article 1(a) page 54 of Exhibit F2 is discountenanced in view of Article 1(b), Page 54 of Exhibit F2, which clearly provides as follows;
“……….It is also agreed that while negotiations are continuing in respect of any proposal to terminate or amend this agreement and until a new agreement or an amendment has been signed and the date of its commencement agreed upon, this present agreement shall remain in force.”
In line with the above, there is nothing on record that this agreement has been terminated or amended, as such, I find that Exhibit F2 is still in force and operational.
It is based on the above premise that I find that Exhibit F2 being the current collective Agreement in the industry of the Defendant is applicable to the contract of employment of the claimant in this case. I so hold.
Assuming even that Exhibit F2 is not applicable to the claimant’s employment, the position of common law will be applicable i.e. the principles of natural justice as captured in Section 36 of the CFRN 1999 as amended, succinctly this provides that an employer can dispense with the services of an employer summarily, provided he is afforded the opportunity to defend himself.
This will lead me to issue two, it is the claimant’s contention that the defendant did not afford her any opportunity to defend herself i.e. fair hearing for any act of gross misconduct before she was purportedly dismissed as provided for under Exhibit F2. The defendant however cited Exhibits B1 and B2 as evidence to show that the claimant was queried and she responded to the query before she was summarily dismissed.
The Court of Appeal in Koomlong I. Macphen v. University of Jos Consultancy Limited [2013] LPELR-21904 (CA) cited “The Webster’s Dictionary of the English Language” Dulux Edition, By J.G Ferguson P.794, which defined a query to be:
“To inquire into, to ask about, to ask questions of, to interrogate, to express doubt concerning the correctness or truth of, to have or express doubts…”
Also in A.G. Kwara State v. Abolaji [2009] 7 NWLR Pt.1139 p.199 @ 212 the court of appeal held that an officer about to be disciplined is first given a query to explain certain things in writing. It is a query that precedes the setting in motion the procedure for disciplinary action.
A query in labour/employment law is a formal (written) request to an employee demanding an explanation, and thereby offering the employee the opportunity to defend himself/ herself on any allegations that may be levelled against him/her. See the case of Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc Unreported suit No; NICN/LA/122/2014 delivered by Honourable Justice B.B Kanyip.
The Claimant argued that Exhibit B1 was an email, and as such did not qualify as a written query under Exhibit F2 i.e. she ought to have been given a written query in order for her to defend herself. It is not in doubt that a written query provided it is communicated to the offending party by whatever means, remains a query, this court is not unaware of the current trend in global business, which utilizes IT technology and all sort of electronic means of communication in line with the best global practice. However, a keen perusal of Exhibit ‘B1’ reveals the content as follows:
“From: Owuye Adetola M
Sent: Tuesday, February 14, 2012 4:21pm
To: Giogbe Florence .O.
CC: Olutade Adesina F, Musa Rabe M
Subject: Current Account of Okhamena Global Services in your branch.
Good day Florence and hope work is going on fine.
Record had it that you introduced the above customer to your branch and a so authorized the opening of their account in the system.
Please explain how long you have known the Director of the company, Joseph O. Imimonde who was also the company’s sole signatory to the account as at the time you introduced them to the bank.
Best regards ……?
OWUYE A. M.
INSPECTION DEPT.
UNION BANK OF NIG. PLC.
H/O, LAGOS”
A perusal of the above discloses no allegation of misconduct or any suggestion that she is been queried for gross misconduct. In comparison see the case of Koomlong I. Macphen v. University of Jos Consultancy Limited Supra where the court of appeal held that:
“The Board would like to know how this happened……in consequence of above, the Board has approved that you account fully for these amounts, not later than January 29, 1998” amounted to a query.
In the instant case however, Exhibit B1 is an enquiry from a member of the inspection Department of the Defendant, about a customer seeking to know how long the claimant had known Joseph O. Imimonde, and there is nothing in Exhibit B1 suggesting that the claimant was been queried for a grave and serious act of gross misconduct from the language of Exhibit B1, it read more like a friendly enquiry. In ALHAJI LASISI YUSUFF V. UBN LTD 1996 6 NWLR PT (457) 632, the court held:
“To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by a disciplinary proceedings must be given adequate notice of the allegation against him. The complaint against him must not be necessarily drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him”
Exhibit B1 did not contain any allegation or convey the fact that the claimant is undergoing a disciplinary procedure. There is no complaint formulated and no allegation made against the claimant, at best Exhibit B1 can only qualify as an enquiry in the course of an investigation, but cannot be said to be a query. I find therefore that the claimant was not given fair hearing in the allegation of gross misconduct that resulted in the termination of her employment. I so hold.
Flowing from the above, can the summary dismissal of the claimant’s employment vide Exhibit F5, be said to be wrongful? In Exhibit F5, it was stated that the claimant was dismissed for “gross misconduct”. It is the position of the law that an employer is entitled to dismiss an employee for any reason or no reason at all, provided he acts within the terms of the contract of employment, his motive for doing so is irrelevant. See Daudu v. U.B.A. Plc. [2004] 9 NWLR (Pt.878) 276.
However, where an employer gave a reason for the termination of employment, such a reason must be justified see Obe v. Nigersol Construction Company Ltd [1972] 2 UILR (Pt/III) Pg.121; SPDC Ltd v. Olarewaju [2008] LPELR-3046 (SC). The Defendant in this case pleaded evidence of the alleged misconduct, but failed to proffer any proof that the allegation of gross misconduct was brought to the attention of the claimant and as a result denied her the opportunity to defend herself on the serious allegation, before she was summarily dismissed from the service of the Defendant. This to me is fatal to the Defendant’s case, as it offends the doctrine of natural justice which is encapsulated in the maxim “audi alteram patem”. The least an employee deserves is to know that she is undergoing a disciplinary procedure, as no person deserves to be crucified unaware and an enquiry cannot qualify as an accusation. In Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt.1262) 624 SC the Supreme Court per Rhodes-Vivour, J.SC held that:
“Accusing an employee of misconduct, e.t.c by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice.”
The court in Imonikhe’s case held that a query given to an employee and answered by him suffices as fair hearing.
The doctrine of fair hearing as enshrined in the natural justice principle of “Audi Alterem Partem” literally means hear the other side is a right which gives parties equal opportunities of making representations in respect of the matter in contention. It is a constitutionally guaranteed right under section 36 of the 1999 constitution of Nigeria (as amended) and is therefore fundamental and sacrosanct in the determination of the civil right and liberties of parties to a dispute. See Demsa Local Government v. Jokems Nig. Ltd [2012] LPELR-20864 (CA)
Having held that the claimant was not issued a query before her purported dismissal. I find that her dismissal was wrongful.
A dismissal is wrongful when an employer did not follow a laid down procedure in the dismissal of an employee. See New Nigeria Newspaper v. Atoyebi [2013] LPELR- 21489 (CA)
Exhibit F2, Article 4 (iv) (a), (b) and (c) at pages 24 and 25 of the Procedural and Main Collective Agreement – gave the 1st Defendant powers to summarily dismiss a senior staff for certain acts of gross misconduct, subject to compliance with the following mandatory procedures. It provides thus:
An employee may be summarily dismissed for certain acts of gross misconduct. Such acts include proven cases of:
Theft, fraud, dishonestly, defalcations, irregular practices in respect of cash, vouchers, records, returns, customers account or foreign exchange transactions,
(xi) …………………….…………………………………
……………………………………………………….
Where an act of gross misconduct has been committed which merits summary dismissal but where the member company does not exercise its prerogative of dismissal, a “first and last” or a “second and last” warning letter may be issued and the facts that the warning is a final one will be made clear in the letter.
Before either summary dismissal or warning letter is effected, the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded.
It is clear from all the above stated that the defendant did not follow due process in the dismissal of the claimant from its service, also failure to issue her with a query amounts to denial of fair hearing. It is based on the above premise that I hereby find and hold that the dismissal of the claimant from the service of the defendant was wrongful.
Issue three is to determine whether or not the claimant is entitled to her claims.
Claim a, is a declaration that the dismissal of the claimant from the Defendant’s employment, vide letter dated 23rd July 2012 is unlawful, invalid, wrongful, null and void and of no effect. It is the Claimant’s case that her summary dismissal ran contrary to the Trade Union Act Cap T14 LFN 2004, which empowered and mandated the ASSBIFI (Association of Senior Staff of Banks, Insurance and Financial Institutions) and NEABIAI (Nigeria Employers Association of Banks, Insurance and Allied Institutions) to make collective bargains or agreement for their members, and that her employment is still subsisting. The Defendant however argued that Section 17 of the Trade Unions Act is irrelevant to the relationship between both parties. I find that even though the claimant is a member of a Trade Union captured under the Trade Unions Act, her employment is distinct from her membership of the union, the relationship between both parties in this suit is not regulated by statute, as a collective agreement cannot be classified as a statute, It is indeed that of a Master and Servant, and as such the relief of reinstatement is not available to the claimant. I therefore find that the termination of the claimant’s employment although wrongful is not unlawful. I so hold.
Claim b and c is a Declaration that the claimant is still a Senior Staff (Officer II) of the 1st Defendant and therefore entitled to her full salaries and allowances from July 2012 to date of Judgment and thereafter till the date of her lawful retirement and an order reinstating the claimant back to her duty post.
Having held that the dismissal of the claimant was wrongful and not unlawful, the claimant cannot be said to still be in the employment of the defendant and she cannot be reinstated. The only remedy available for a wrongful dismissal is damages to be measured by the salary in lieu of the period of notice which will ordinarily terminate the employment. In Saibu v. Kwara State Polytechnic, Ilorin [2008] LPELR-4524 (CA) Ogunwumiju J.C.A held a follows:
“..Where it is a master servant relationship at common law in which the terms of employment and discipline are regulated by the contract of service, where there is a breach, such breach is called wrongful and the employee is only entitled to damages for such breach. Whereas, in the case of an employment regulated by statute, a breach of the statute amounts to an “unlawful” act which can be declared null, void, of no effect which entitles the employee to reinstatement,etc.”
In N.I.I.A v. Ayanfalu [2007] 2 NWLR (pt.1018) p.246 the court of appeal per Agbo J.C.A held that;
“..However, the appellant must appreciate that there is a distinction between mere wrongful dismissal and invalid or null dismissal. The situation of payment in lieu of notice will apply where the court makes a finding of wrongful dismissal in favour of a servant. Where however as in the instant case a court has made a finding that the dismissal or termination of the servant was null and void, there is no dismissal or termination. What the employer did was a nullity. See U.T.C. v. Nwokoruko (1993) 3 NWLR (Pt.281) 295; Imoloame v. WAEC [1992] 9 NWLR (Pt.265) 303”
A keen perusal of Exhibit F2 reveals that the claimant upon termination is entitled to one month’s notice or salary in lieu of notice. Article 4 Clause ii (d) reads thus:
“An Employee whose services have been terminated under the provisions of this paragraph shall, nevertheless, be entitled to one month’s notice or salary in lieu, in addition to any other terminal benefits that may be due to him”
It is on the above premise that I find that the Claimant is entitled to one month salary in lieu of notice in the sum of N126, 600.43k (One Hundred and Forty Six Thousand, Six hundred naira and forty three kobo) which was her last paid salary vide her pay slip (Exhibit F4A).
The reliefs sought for her full salaries and allowances from the date of dismissal till the date of her lawful retirement and for her reinstatement therefore fails. I so hold.
Claim d is an order directing the defendant to pay to the claimant her entitlements of salaries, allowances and retirement benefits of a total sum of N68,080,370.00 (Sixty Eight Million, Eighty Thousand, Three Hundred and Seventy Naira). This is made up of claim for salaries and allowances from July 2012 to November 2026, which sums up to a total of N62,061,770.00 (Sixty two Million, Sixty-One Thousand, seven Hundred and Seventy Naira) and N6,018,600.00(Six Million ad Eighteen Thousand, Six Hundred Naira) for her gratuity and pension as captured in the paragraph 18 of the amended Statement of Facts. The claim for salaries and allowances from July 2012 to November 2026, is untenable based on the principle that an employee cannot receive salaries for work not done. See the case of LUTH v. Adewole [1998] 5 NLR (PT.550) 406 CA. It is trite that an employee is entitled to salaries for work done, conversely, an employee is not entitled to salaries for work not done. I find therefore that the claim for salaries and allowances for the period of July 2012 to November 2026 fails. I so hold. As for the balance of N6,018,600.00 (Six Million ad Eighteen Thousand, Six Hundred Naira), made up of her pension and gratuity, the Defendant had tendered during the trial Exhibit B4 which is the letter of transfer of the claimant’s accrued pension entitlement to RSA PEN200390887538 with AIICO pension Managers limited in the sum of N2,473,961.76 (Two million Four Hundred and Seventy three thousand, Nine Hundred and Sixty one Naira, seventy six Kobo). It is therefore left for the claimant to contact her pension managers to claim her retirement benefits. However, as to the balance of the claim for the sum of N4,814,880.00 (Four Million Eight Hundred and Fourteen Thousand, Eight Hundred and Eighty Naira) representing her gratuity, having held that the dismissal of the claimant by the Defendant’s was wrongful, her appointment is presumed to have been terminated, and she is entitled to her gratuity. In support of her claim for gratuity, the claimant tendered Exhibit F6 which is the Compensation Review letter issued to all staff of the defendant dated 29th October, 2008, this exhibit discloses that the claimants level as Senior Officer II is entitled to the sum of N4,814,880.00 (Four Million Eight Hundred and Fourteen Thousand, Eight Hundred and Eighty Naira) as gratuity for working for 22 years i.e. 1990-2012. The claimant is therefore entitled to a sum of N4,814,880.00 (Four Million Eight Hundred and Fourteen Thousand, Eight Hundred and Eighty Naira) as gratuity. I so find and hold.
Claim e is for the sum of N100,000,000.00 (One Hundred Million Naira) being general damages for the unlawful dismissal of Claimant from her employment .The law is settled in that general damages are the kind of damages which the law presumes to be the consequences of the act complained of. I have awarded the Claimant in this case one month salary in lieu of notice and gratuity, including her entitlement to her accrued pension. I therefore find no reason to make any award in general damages as to do so, will amount to double compensation. This relief therefore fails.
In all, the claimant’s case succeeds in part and for the avoidance of doubt I declare and order as follows:
The dismissal of the Claimant from her employment, vide letter dated 23rd July, 2012 is wrongful.
The Claimant is entitled to one month salary in lieu of notice in the sum of N126,600.43k to be paid by the Defendant.
The Claimant is entitled to her pension in the sum of N2,473,961.76 (Two million Four Hundred and Seventy three thousand, Nine Hundred and Sixty one Naira, seventy six Kobo) already remitted to her retirement Account.
The Claimant is entitled to gratuity in the sum of N4,814,880 (Four Million Eight Hundred and Fourteen Thousand, Eight Hundred and Eighty Naira) to be paid by the Defendant
The claim for damages fails.
All sums awarded against the Defendant is to be paid within 30 days failure upon which it will attract 25% interest per annum.
A cost of N50,000.00k is hereby awarded as cost against the Defendant.
Judgment is accordingly entered.
Hon.Justice A.A Adewemimo
Judge
