Peter Elama -VS- United Bank for Africa Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A.ADEWEMIMO

DATED: 14^TH JANUARY, 2019 SUIT NO: NICN/BEN/17/2017

BETWEEN

PETER ELAMA CLAIMANT

AND

UNITED BANK FOR AFRICA PLC DEFENDANT

REPRESENTATION:-

O. ESEINE FOR THE CLAIMANT.

I. IHENYEN FOR THE DEFENDANT.

JUDGMENT

The Claimant by a Complaint before this Court on the 14^thAugust, 2017 claims against the Defendants as follow:

(a) A Declaration that the continuous suspension of the Claimant without issuance of the letter of termination by the Defendant is illegal, null and void.

(b) A Declaration by the Honourable Court that the disengagement of the claimant by the defendant is wrong, anomalous and against the rules of natural justice.

(c) A Declaration that the Claimant is still in the employment of the Defendant and the Claimant is entitled to salary and other benefit from the said date of suspension till date.

(d) An Order of this Honourable Court compelling the Defendant to pay the Claimant his full salaries of N27, 744,650.00 and allowances due to him from October 2011 till the Day of Judgment.

(e) The deductions made from the Claimant’s salary for pension paid to the Claimant. Other entitlements including but not limited to the terminal benefits, allowance and emolument be calculated and paid to the Claimant up till the final determination of this suit.

(f) The Claimant also claims 35% interest in No. 3 above until Judgment is given and 21 % interest from Day of Judgment until the entire sum is liquidated.

(g) The sum of N10, 000,000.00 (Ten Million Naira) only being general damages for embarrassment, harassment, intimidation and physiological trauma caused the Claimant.

(h) The sum of N5, 000,000.00 (Five Million Naira) Only being general damages.

(i) An Order of the Honourable Court compelling the Defendant to issue the Claimant certificate of discharge from his service.

(j) The cost of this action.

The Claimant filed along with the Complaint all the accompanying processes, i.e. statement of facts, claimant’s deposition on oath, list of witness and documents to be relied on, while the defendant filed a memorandum of appearance on the 18^th of October, 2017, the statement of defence and other accompanying processes.

The Claimant’s case is that he was posted to the Defendant for his primary assignment during his NYSC service year, thereafter employed as a contract staff, claimant was finally employed as a full time staff on 2^nd January, 2003 and his appointment was confirmed on the 11^th October, 2003. He later rose to the position of Operations Manager with the defendant. It is the claimant’s case that following what the defendant referred to as “Fraudulent conversion of N12,390,920.00 (Twelve Million, Three Hundred and Ninety Thousand, Nine Hundred and Twenty Naira) only from Harrison Ekpetin’s account with the Defendant domiciled in Sakpoba Road Branch, Benin City, investigation was carried out for months by the the Defendant and a report was submitted to the disciplinary committee of the Defendant, they also issued a report, neither of which was made known to the claimant.

The disciplinary committee later questioned 3 members of staff namely Andrew Isonah, Fasida Subomi and Peter Elema (Claimant). The defendant thereafter requested the Claimant to proceed on loan recovery suspension with zero pay on the 11^th October, 2011. The Police in Edo State were later called in by the defendant on the alleged fraudulent conversion and after investigation, the trio of Andrew Isonah, Subomi Fasida and Peter Elama were charged before an Oredo Magistrate Court, Benin City, and were later discharged and acquitted in a judgment delivered on the 13^th of August, 2014 by that court. The claimant thereafter caused his solicitor to write the defendant calling for his reinstatement, this was rebuffed by the defendant and till date the defendant failed to issue any letter of termination to him or pay his entitlement and outstanding salaries.

The defendant in its defence admitted certain paragraphs of the statement of facts and denied some others.

The defendant averred that the claimant was a staff of the Defendant but that is no longer the case as he was found guilty of financial impropriety by the disciplinary committee of the Defendant and dismissed for gross misconduct. The allegation against the claimant is that as branch operations Manager, alongside other staff of the defendant he failed to exercise due diligence in the transaction which involved fraudulent conversion of a customer’s funds as collateral for other bank customers. The defendant stated that the account was debited with the sum of N12, 390,094.74 (Twelve Million, Three Hundred and Ninety Thousand, Ninety four Naira, Seventy Four Kobo), without the customer’s consent in a bid to clean up cash collaterised facilities. The defendant averred that as Branch Operations Manager the claimant is expected to check and confirm that every transaction presented to him for authorization follows due process and is in line with the bank’s policy, this he failed to do and it will therefore be a misnomer to retain the claimant as a staff of the defendant after been indicted of financial impropriety by the defendant as this would not have been in the best interest of the defendant as a financial institution. The defendant therefore urged the Court to dismiss the suit with substantial cost.

Trial commenced in this suit on the 9^thApril, 2018 with the claimant testifying for himself as CW1, he adopted his witness statement on oath and additional statement on oath. CW1 also tendered several exhibits which were admitted and marked Exhibits P1–P14 and was cross examined. The Claimant thereafter closed his case.

On the 14^thof May, 2018 the Defendant opened its defence by calling one Abel Ohaegbulem, as DW1, he adopted his witness Statement on oath and tendered Exhibit B1, titled “letter of dismissal”, to which the claimant objected, the court however urged counsel to address it on the admissibility of the document at the Final Written Address stage, DW1 was also cross examined. The Defence thereafter closed its case and the case was adjourned for the adoption of final written addresses. The parties adopted their addresses on the 25^th October, 2018, and the case was adjourned for Judgement.

The Defendant filed its address on the 1^st of June, 2018, wherein it formulated three issues for determination:

Whether the Defendant was right to dismiss the Claimant after its disciplinary Committee found him guilty of gross misconduct.

Whether this Honourable Court can grant the Claimant the reliefs he seeks, having been found guilty of gross misconduct by the disciplinary Committee of the Defendant.

Whether every allegation of crime against employees must be proved in court before dismissal.

Learned counsel submitted that the claimant appeared before the disciplinary Committee of the Defendant on allegations of fraud, and was found guilty of gross misconduct and dismissed, as evidenced by Exhibit P12. This he submitted is within the rights of the defendant. He argued that the term “Misconduct” is what an employer says it is. Counsel cited the case of NNB v. Oniovosa (1995) 9 NWLR Pt. 419 pg. 327 @ 334, paras. F-H; Oyedele v. University Teaching Hospital (1990) 6 NWLR Pt. 155, 194; Usen vs. BWA (1965) 1 ALL NLR 244; C.B.N v. Aribo (2018) All FWLR Pt. 925, 93 @ 137, paras. F-G and Yusuf v. U.B.N (1996) 6 NWLR Pt. 457, 632 @ 648, Paras.H, S.C.

On issue two, counsel submitted that there are three categories of contracts of employment:

(a.) Purely master and servant relationship;

(b.) Servants who hold their office at the pleasure of the employer, and;

(c.) Employments with statutory flavour.

Counsel argued that the instant case falls into the first category i.e. master and servant relationship and the master retains an unfettered right to terminate the employment, but in so doing, he must comply with the procedure stipulated in the contract of employment. He also submitted that a servant cannot be imposed on an unwilling master, citing Longe v. F.B.N Plc (2006) 3 NWLR Pt. 967, 228 @ 265, paras. G-H; pg. 268, paras. B-H, C.A;Garuba v. Kwara Investment Co. Ltd (2005) 5NWLR Pt. 917, 160 @ 179, para. F, S.C; and others.

Learned counsel argued that since the employment relationship between the parties is not statutory, an employee’s remedy in a case of wrongful dismissal lies in damages. He cited Osisanya v. Afribank Nig. Plc (Supra); Olarenwaju v. Afribank (Nig.) Plc. (2001) 13 NWLR Pt. 731, 691 and U.B.N. Ltd. v. Ogboh (1995) 2 NWLR Pt. 380, 649. The damages available to an employee is the payment of his salary in lieu for the period of notice stated in the contract of employment. In other words, damages will be the amount he would have earned if his employment was properly and validly determined. He cited Osisanya v .Afribank Nig. Plc (2007) 6 NWLR Pt. 1031, 565 @ 586, paras. D-E, S.C; Imoloame v. WAEC (1992) 9 NWLR Pt. 265, 303 ;and others.

On the claim for general damages, learned counsel posited that general damages are not awarded in cases of wrongful dismissal, he cited P.Z Ltd. v. Ogedenge (1972) 1 All NLR Pt. 1, (1972) 3 S.C., and noted that Exhibit P2 provides that the Claimant’s employment may be terminated by giving one (1) month notice or cash in lieu and that the Bank reserves the right to terminate the employment for misconduct or unsatisfactory performance before the end of the contract period. He asserted that parties are bound by the terms embodied in a contract of employment and where the terms of an employment are written and express, extrinsic evidence is not admissible to add to or vary the terms. He cited Olanrewaju v. Afribank (Nig) Plc (2001) 13 NWLR Pt. 731, Pg. 691 @ 714-715 Paras. F-C, S.C;Layade v. Panalpina (1996) 6 NWLR Pt. 456, 544 @ 558, Para. B-C, S.C.

Learned counsel argued that the summary dismissal of the claimant is in line with the contract of employment. He referred to the case of Olanrewaju v. Afribank (Nig) Plc (2001) 13 NWLR Pt. 731, Pg. 691 @ 712, para.C; 714, Para. F; 715, paras. B-C, S.C., and argued that a servant who has been dismissed cannot claim wages for services he never rendered, citing Olatunbosun v. NISER Council (1988) 3 NWLR Pt. 80, 25; Spring Bank Plc v. Babatunde (2012) 5 NWLR Pt. 1292, 83 @ 101, Paras. C-D and others.

On issue three, E. I. Ihenyen submitted that in a statutory employment, as well as master and servant relationship, an employee can be summarily dismissed for gross misconduct involving dishonesty bordering on criminality, and in such a case, it is not necessary, as required by Section 36(1) of the 1999 Constitution (As Amended) that an employee must first be tried in a court of law. Learned counsel argued that it is erroneous to argue that once a crime is detected, the employer cannot dismiss the employee unless he is first tried by a court of law, and in the instant case it was not necessary for the Defendant to initiate criminal prosecution before taking disciplinary measures against the claimant by way of summary dismissal where the misconduct undermined the relationship of confidence which should exist between him and the employer. He cited in support of this position; Arinze v. F.B.N. Ltd. (2004) 12 NWLR Pt. 888, 663 @ 673. Paras.F-G; 765, paras.E-G; 676-677, paras. G-A, S.C;Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR Pt. 457, 632 @ 644, paras. G-H, and others.

In conclusion, Counsel urged the Court to dismiss the entire suit with punitive costs.

D.O. Eseine of counsel for the claimant thereafter adopted his final written address filed on the 10^th of October, 2018, wherein three issues were formulated for determination to wit:

Whether the unsigned suspension letter dated October 11, 2011 served on the claimant by the Defendant was valid and legally binding on the claimant to proceed on suspension.

Whether the claimant was still in the employment of the defendant in the circumstance of this case from October 2011 till judgment.

Whether the claimant proved his case upon which the court can find for him the reliefs sought.

On issue one above, counsel submitted that the claimant was served with an unsigned letter of credit recovery suspension dated 11^th October, 2011 i.e. Exhibit P13 following the recommendation of the Bank disciplinary committee vide Exhibit P12 that the claimant be suspended for 3 months with zero pay for what the defendant alleged to be fraudulent conversion of a customer’s fixed deposit for various cash collaterised loans by Isonah Andrew, a staff of the Defendant. He submitted that Exhibit P13 which was unsigned by the defendant is a void and worthless document and does not have any efficacy in law. He cited Brew Tech Niger Ltd V Folageshim Akinnawo (2016) LPELR 4009 (CA); Anyaoha V Obioha (2014) 6 NWLR (Pt 1404) 445. and several other cases and thereby submitted that the suspension of the Claimant is null and void as an unsigned document is entitled to no weight in the eye of the law, arguing further he stated that the employment is still unbroken and subsisting and urged the court to hold that he is entitled to salaries amounting to N27, 774,000:00 for the period of the purported suspension and he remains a staff until the contract is validly determined. He relied on the following authorities: Alamu V Afrotech Technical Service (Nig) Limited (1980) 2 QLRN 126; Adekunle V Western Region Finance Cooperation (1963) NWLR; and others.

On Issue two, counsel adopted the above argument that Exhibit P13 which is the suspension letter issued to the claimant was not legally binding and urged the court to grant the relief that claimant is still in the employment of the defendant.

Learned counsel submitted that where the dismissal of an employee is based on an alleged criminal charge, the allegation must first be proved, he cited paragraphs 3, 12, 14, 15, 16, 17 and 18 of the statement of Facts and Exhibit P8 (Certified True Copy of the Judgment of Magistrate court 4, Oredo Magisterial District Benin City) and evidence on oath in line with Section 59 of the Evidence Act 2011 to support his argument.

He argued that since the claimant was purportedly dismissed based on criminal offences of forgery, fraud, conspiracy, collusion, conversion and other allegations contained in paragraphs 15 and 16 of the statement of Defence, the law is to the effect that “where a law or statute has laid down a procedure for doing a thing, compliance with that procedure is a condition precedent to doing that thing. He cited Cooperative Bank V Attorney-General, Enugu State (1992) 8 NWLR (pt 261) 528; Atiku Abubakar V FRN (2002) FWLR (pt 441) 893. He pointed out that the proof of criminal case(s) is beyond reasonable doubt, citing the case of Adewumi V The State (2016) Vol 259 LRCN 168. ADEKOYA V STATE (2012) 9 NWLR (PT 1306) 539 AT 565 per Adekeye JSC. The counsel stated further that the alleged offences were not sufficiently pleaded and particularised in paragraph 15 and 16 of statement of defence to establish the offences of fraud, forgery, conversion and conspiracy etc. in line with frontloading regulation in civil cases. He posited that it is the law that a party who relies on the provision of a statute for defence should plead facts relied upon for bringing a particular transaction within the ambit of that statute. He cited Mobil Producing Nig. Unltd. V Udo (2009) ALL FWLR (pt 482) 1177 at 1182; Olalomi Ind. Ltd. V NIDB Ltd (2010) Vol 178 LRCN 50 at 56 and section 138 of the Evidence Act Cap 112 LFN.

He further argued that there is no valid letter of termination in this suit and buttressed this point by citing paragraph 2 of the Statement of Defence where the Defendant admitted paragraph 21 of the statement of Facts, paragraph 21 reads as follows:

“The claimant avers that since his suspension letter dated October 11^th. 2011, he was not issued with any other letter terminating his employment”.

he argued that facts admitted need no further proof, the Defendant having directly, positively and unequivocally admitted the claimant’s assertion above cannot recant by citing a letter of termination not tied to the Statement of Defence, he cited ALHASSAN & ANOR V. ISHIAKU & ORS 2016 VOL 258 LRCN 73 @ 93, and submitted further that the onus is on the defendant to proof with sufficient evidence the claim that it delivered Exhibit B1 to the claimant, failure of which will be fatal to the it’s case. The assertion that the letter of dismissal was given to the defendant he argues is an afterthought and falls short of the proof of despatch. He added further that assuming without conceding that the claimant was duly suspended, this will not qualify as a dismissal, he cited LONGE V. 1^ST BANK (NIG) PLC 2010 LER SC 1166/2007 @ Pg 52.

In the same vein, learned counsel for the claimant urged the court to hold that the claimant is entitled to the sum of N27,774,650 (Twenty Seven Million Seven Hundred and Seventy Four Thousand, Six Hundred and Fifty Naira) only as his salaries for 5 years 9 months from October 11^th, 2011 to 14^th August 2017 vide Exhibit P14.

Counsel asserted that the claimant is entitled to the following reliefs; special damages, general damages, certificate of discharge. Learned counsel also urged the court to award cost against the defendant but acknowledged that this is at the discretion of court.

In conclusion, counsel urged the court to discountenance the defence put up by the Defendant in this suit and give judgment in favour of the claimant.

On 18^thOctober, 2018, the defendant filed a Reply on Points of Law in which the defendant contended that in an action for wrongful dismissal or termination of employment, the burden is always on the employee to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer.

The Defendant in reply to the claimant’s address stated that it had outlined the particulars of fraud in the body of its Statement of Defence. And this is preceded by the last sentence in paragraph 4 of the statement of defence which clearly states ‘’Particulars of fraud are hereunder stated’’. He submitted that the claimant’s argument on this point is misleading and that counsel are ministers in the temple of justice and their conduct must always be above board as Counsel should always endeavour to assist the court instead of misleading it. He cited Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421 @ 499, S.C.

The Defendant submitted that Order 30 Rule 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides that wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. He therefore submitted that the contention of the claimant’s counsel is inconsequential.

The Defendant in answer to the claimant’s submissions that the testimony of DW1 is incompetent as it amounts to hearsay and offends Section 126 of the Evidence Act as he was not a party to what transpired between both parties in this suit, argued that the position of the law is that an authorised agent or employee of a company can give evidence of any transaction entered into by his principal, and cited the following cases; Interdrill (Nig.) Ltd. v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52 @ 67, Paras. E-H; A-D,Nweze, J.S.C.; Ishola v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405 @ 424, Paras. E-G and others.

The defendant submitted that the testimony of DW1 in this suit is not hearsay, as it was clearly stated on his Written Statement on Oath that he is a banker in the employ of the Defendant who had given him the mandate and authority to represent it in this suit. Consequently, his testimony is irreproachable.

The Defendant submitted that it is not every fact that needs to be pleaded. He cited Saleh v. Bank of the North Ltd. (2006) 6 NWLR (Pt.976) 316 @ 332, Paras. H, S.C. and argued that a denial of a particular paragraph in a statement of defence by way of a general traverse has the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to strict proof of the allegation in that paragraph. Its effect is that it casts on the plaintiff the burden of proving the allegation denied. He also cited Dairo v. Registered Trustees, T.A.D., Lagos (2018) 1 NWLR Pt. 1599, 62 @ 81-82, paras. H-B, 82, Para. C, S.C.

In conclusion, the defendant submitted that a declaration is impossible in a master and servant relationship. He cited Odiase v. Auchi Polytechnic (1998) 4 NWLR Pt. 546, Pg. 477 @ 492, Paras. E-F, C.A. and asserted that where the main relief sought in a suit fails, the ancillary reliefs must also crumble. He cited Sunko (Nig.) Ltd. v. Skye Bank Plc (2017) 12 NWLR Pt. 1579, 237 @ 270, paras. F-H, C.A. and that a dismissal of an employee for gross misconduct is a disciplinary measure which carries no benefits. He also cited U.B.N Plc v. Soares (2012) 11 NWLR, PT. 1312, PG. 550 @ 575, Paras. F-G, C.A and concluded by stating that no one should be permitted to profit from his own wrong or default (nullus commodum capere potest de injuria sua propria) as the Claimant is seeking, he cited ABACHA V EKE-SPIFF (2009) 7 NWLR PT. 1139, PG. 97 at 132, PARA. G. Counsel urged the Court to dismiss this suit in its entirety as it is dead on arrival and devoid of any morsel of merit.

I have carefully gone through the processes filed in this suit and I have come up with the following issues to best determine this suit to wit;

Whether or not the letter of suspension dated October 11, 2011 given to the Claimant by the defendant is valid.
Whether or not the letter of dismissal dated 6^th January, 2012 properly determined the employment of the claimant; and depending on the answer to the above when is the effective date of dismissal.
Whether or not the effective date of dismissal is binding on the Claimant.
Whether or not the Claimant is entitled to the reliefs claimed.

On issue one, the claimant contends that an unsigned document is a void and worthless document and does not have any efficacy in law, and so Exhibit P13 which is unsigned is inadmissible in law and cannot qualify as a valid letter of suspension, thus the claimant’s employment is still subsisting.

In FCDA Staff Multipurpose (COOP) Society & Ors v. Samchi & Anor [2018] LPELR-44380(CA) the Court of Appeal per Mohammed Mustapha, J.C.A said

“where a document which ought to be signed is not signed, for whatever reason, then the very essence of the document is now questionable, because its authenticity is in serious doubt; it is like a man without a face, only worse, and for that reason, the ambiguity created as a result be construed against the maker or whoever sought to present it; see Garuba v. Kwara Investment Co. Ltd. [2005] (PT.917) 469, Aiki v. Idowu [2006] 9NWLR (Pt.984) 47 and Zemi v. Geidam [2004] All FWLR (pt.237) 457.”

Further to this the Supreme Court case of Abubakar v. Yar’Adua [2009] All FWLR (Pt.457)1, was cited in the above judgement where the Supreme Court held;

“a court of law can only pronounce judgment in the light of evidence presented and proved before it. A Court of law cannot go outside the evidence presented and proved before it by embarking on a voyage of discovery in search of other evidence in favour of the parties”………………………………………………

The position of the law is trite and tested that an unsigned and undated judgment is null and void and of no effect whatsoever, it is as simple as that, the court has no more interest in the matter than the parties, and if the parties choose to rely on an invalid document, the trial court is expected simply to disregard it or reject it for what it is or isn’t; see Awoniyi v. Aleshinloye [1998] 9 NWLR PT.564 71”

The Claimant in his written address is contesting the admissibility in Law of Exhibit P13 which is an unsigned letter of suspension addressed to the claimant, the defendant however did not deem it fit to canvass any argument in response.

However, apart from the fact that it was the claimant that tendered this document, he also pleaded it, relied on it and complied with the directive in Exhibit P13 after he was served with the said suspension letter by not going to work. The only attempt he made to go back to work was when he wrote Exhibit P9 through his solicitor D.O Eseine to the defendant wherein he demanded for his reinstatement. The claimant is therefore estopped from denying the validity of the said letter. See the case of Nicholas Frank Opigo v. Van Kruma Yukwe [1997] 6 NWLR (Pt.59) page 428 at 441, where it was held as follows:

“it is a rule of equity that a party cannot approbate and reprobate which has led to estoppels by conduct…”

See also Section 169 of the Evidence Act 2011. I find therefore that Exhibit P13 is a valid and effective letter of suspension from the circumstance of this case. I so hold.

On issue two and three, it is the contention of the claimant that based on Exhibit P8 (Certified True Copy of the Judgment of Magistrate Court 4, Oredo Magisterial District Benin City) wherein he was discharged and acquitted of the allegations contained in the charge sheet by the defendant against him, he is still in the employment of the defendant.

The defendant on the other hand contends that the employment of the claimant have since been terminated, and that the defendant was well within its rights to dismiss the claimant as the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case, it is not necessary, nor is it required under Section 36(1) of the 1999 Constitution (As Amended) that an employee must first be tried in a court of law.

In the case of Imonikhe v Unity Bank Plc [2011] 12 NWLR PT.1262 Pg.624-649 the Supreme Court held that the plaintiff’s dismissal was in order and complied with the terms of his employment. The court also held that he had been given fair hearing, having been made aware of the allegations and having been given an opportunity to defend himself before he was dismissed. The Supreme Court dismissed the appeal and declined to nullify Mr Imonikhe’s dismissal, rather it affirmed that an employer can discipline or dismiss an employee without necessarily proving the allegations against the employee before a court of law.

Subsequently, a Supreme Court decision in Eze v. Spring Bank Plc [2011] 18 NWLR PT.1278, Pg 113 @ pgs 134 F-H and 135 B-D also confirmed this position where it held as follows:

“It is no longer the law that where an employee commits acts of gross misconduct against his employee which acts also disclose criminal offences under any law, the employer has to wait for the outcome of the prosecution of the employee to discipline the employee under the contract of service or employment.”

Flowing from the above, it is clear that the defendant had an unfettered right to dismiss the claimant whether or not the allegations against him had been proved or disproved in a court of law. This however leads us to issue three, which is, whether or not Exhibit B1 (a photocopy of a letter of dismissal dated 6^th January, 2012) tendered by the defendant is a valid letter of dismissal of the claimant.

On the 14^thof May, 2018 the defendant tendered Exhibit B1, which was objected to by the claimant on the ground that it was never pleaded nor any foundation as to the whereabouts of the original laid, the court however admitted the document and urged parties to address the court on its admissibility at the Final Written Address stage.

On the 14^th of May, 2018 DW1 stated under cross-examination as follows:

– It is not true that Exhibit B1 was made for the purpose of this case

– There is no acknowledgement by the Claimant on Exhibit B1

– I do not have any such proof that this letter was dispatched to the Claimant no DHL, EMS receipt whatsoever.

– The letter was served on the Claimant directly as it is usually done. The party will be called to the office.

– It is not the practise for a party to acknowledge a letter of dismissal.

– It is not the practise in my office not to acknowledge letters but in cases such as this it has not been the practise to acknowledge such letters.

It is trite that a dismissal takes effect only when it is communicated to an employee. In the Unreported case of Anyaehie v. Fidelity Bank Plc suit No. NICN/LA/622/2012 delivered by my learned brother Oyewumi J, the court held that:

“The law is well settled that a notice of termination/resignation takes effect from the date the letter was received by the employer or its agent, See WAEC V OSHIONEBO [2006] 12 NWLR (PT 994) 258; ADEFEMI V ABEGUNDE [2004] 15 NWLR (PT 895) 1; The apex Court reiterated and reaffirmed this position of the law in CHRISTIANA YARE V NATIONAL SALARIES AND WAGES COMMISSION [2013] LPELR 20520, S.C. Both parties are ad idem that the claimant was lawfully employed however, the point of divergence is on the mode and effective date of termination. It is trite law that where an employee’s contract of employment is terminated without notice, the effective date of termination is the date on which the letter was communicated. In an English case of HORWOOD V LINCOINSHIRE COUNTY COUNCIL [2012] U.K.E. @ 0462/11.; it was held that where an employee’s contract of employment is terminated without notice as it is in this case, the effective date of termination is the day that notice is communicated.”

The claimant having denied receipt of the letter of dismissal and the defendant having admitted that the Claimant did not acknowledge Exhibit B1 shifted the burden of proving that the letter of dismissal was received by the claimant on the defendant and this can only be discharged in three ways:

By a dispatch book
By evidence of dispatch by registered post.
By evidence of witnesses credible enough to testify that the Defendant was served with it.

See 1^ST BANK NIG. PLC V. S.M.P. AKIRI 2013 LPELR 21966, the court further held in that case per Denton-West JCA as follows:

“It is now settled law that the issue as to whether a document is received or not is purely an issue of fact to be proved by evidence. In law, the burden of proving the existence of the material issue in controversy is on a party who will lose if no evidence is adduced”

In this case, the Defendant failed to place any evidence before this court in proof that the Claimant was actually served with Exhibit B1, the consequence of this is that the dismissal only came to the knowledge of the claimant after the initiation of this suit and specifically on the 20^th of October, 2017 when the defendant was served with the statement of defence. Further to this the defendant failed to call any oral evidence in prove of the receipt of Exhibit B1 by the claimant. I therefore find and hold that the claimant’s employment was determined on the 20^th of October, 2017.

The resultant effect of the above leads me to issue 4, that is, whether in view of the above the claimant is entitled to the claims he is seeking in this case.

The claimant’s first claim is a declaration that the continuous suspension of the Claimant without issuance of the letter of termination by the Defendant is illegal, null and void. Having held that the employment of the claimant was determined on the 20^th of October, 2017 when he became seized of the dismissal letter, I find that this claim has been overtaken by events. I so hold

The claimant by his 2^nd claim is seeking a declaration by the Court that the disengagement of the claimant by the defendant is wrongful, irregular and against the rules of natural justice.

It is the law that, ordinarily in a master/servant relationship, a master is entitled to terminate the employment of its employee from its employment for good or bad reason or for no reason at all. It is in consonance with this that the Courts rarely order for specific performance of contract of employment so as not to foist an employee on an unwilling employer. See Adebayo Sunday Joseph & Ors v. KWARA State Polytechnic & Ors [2013] LPELR 21388 (CA); A.R .MOMOH V C.B.N [2012] 1 NLLR.P. 48 @ P. 78. And in Abomeli v. NRC [1995] 1 NWLR (PT.372) 451 CA where the court held that:

“The employer has a general power to dismiss for misconduct of any kind that can justify dismissal and to terminate the employees employment or give him a month’s salary in lieu of notice. For instance, dishonest practices, or criminal activities, or acts and behaviour that demonstrably portray an employee as an unreliable person are very strong reasons for an employer to dismiss an employee. In most cases, the dismissal of an employee is usually attributable to acts of misconduct by which the employee has performed below the expectation of the employer or has allowed his pernicious behaviour to make the employer suffer losses.”

In the instant suit, the Claimant avers that following what the defendant referred to as “Fraudulent conversion of N12,390,920.00 (Twelve Million, Three Hundred and Ninety Thousand, Nine Hundred and Twenty Naira) from a customer’s account, an investigation was carried out for months by the defendant, a report was later submitted to the disciplinary committee, the committee in turn sat for two (2) days and came out with a report.

The claimant stated that the disciplinary committee of the defendant questioned him and two (2) other staff namely Andrew Isonah and Fasida Subomi based on the earlier investigation and he was later requested to proceed on loan recovery suspension with zero pay.

This is distinct from a dismissal, as a dismissal is an immediate cessation of the contract of employment, the court in Abomeli v. N.R.C Supra, outlined the following degrees of misconduct which give an employer liberty to dismiss an employee. These include:

Dishonesty or fraud of employee in his employment; or
Grave and weighty misconduct; or
A real but unreasonable dissatisfaction with the employees conduct; or
The employer produces sufficient evidence to establish a strong prima facie case of infidelity.

In this suit Exhibit P2 which is the contract of employment provides for the mode of termination as follows:

“You may terminate this contract by giving a one (1) month notice or cash in lieu while the Bank reserves the right to terminate the employment for misconduct or unsatisfactory performance before the end of the contract period….”

It is clear from the above therefore that the defendant can dismiss any of his staff for misconduct or unsatisfactory performance.

On the Declaration sought by the claimant that he is still in the employment of the Defendant and the Claimant is entitled to salary and other benefit from the said date of suspension till date. Having held that the Claimant was dismissed on 20^th October 2017 when the dismissal was communicated to him, the first leg of this relief fails. On the issue of whether or not he us entitled to salary and other benefit from the said date of suspension, a cursory look at Exhibit P13 reveals the following:

The suspension of the Claimant was indefinite
The suspension was without pay.

Now, it is the law that Suspension is an aspect of the discipline of a staff by an employer and by IMONIKHE V UNITY BANK PLC Supra, it is uncontroverted that the alleged “Fraudulent conversion of N12,390,920.00 (Twelve Million, Three Hundred and Ninety Thousand, Nine Hundred and Twenty Naira) from a customer’s account is the reason why the Claimant was placed on suspension with zero pay. Suspension has been defined in several authorities and in Shell Pet. Dev. Co. v. Lawson Tack [1994] NWLR PT.545 249 the court defined it as follows:

“the suspension of an employee is not an unusual procedure taken in order to facilitate the investigation. Thus an employee affected can hardly complain of not having been given a hearing; nor can he demand that the rules of natural justice should apply”

See also Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt.923) 87 where the court held that:

“suspension means to defer, lay aside or hold in abeyance, it also means to halt halfway but not to bring to an end. Suspension pending investigation can never amount to a breach of the employee’s right to fair hearing.”

It can therefore be gleaned from the above that suspension is not the same with a dismissal. I find therefore that the defendant was well within her rights to have suspended the claimant as an employer has the right to discipline any erring employee in the interest of the organization or institution, although the court in NEPA V OLAGUNJU [2005] 3 NWLR (PT 913) 602 held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. The employer accordingly has the right to suspend an employee when necessary, with or without pay or at half pay if it is so stated in the contract of employment. In the English case of HANLEY V PEASE & PARTNERS LTD [1915] 1 KB 698 AND MARSHALL V MIDLAND ELECTRIC [1945] 1 ALL ER 653, it was held that an employer cannot suspend its employee without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it upon itself (Outside of the court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. See the case of MR PETER OLASUNKANMI ATOKI V. ECOBANK NIGERIA PLC [2014] 47 NLLR (PT 151) 33.

The law is long settled as evinced in a plethora of case laws/ authorities that where an employee is complaining of wrongful suspension, the terms and conditions governing his employment has to be construed to determine the rights and obligations under the contract. See EZENWA V K.S.H.S.MB [2011] 9 NWLR (PART 1251) P.89. The legal consequence of suspension is determinable from the terms of employment. The employer can also suspend the employee with or without pay or at half pay-but if the suspension is vindictive then it would be actionable see Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board& anor [2013] 35 NLLR (Pt 103) 40.

In the instant suit, Exhibit P2 does not disclose that the defendant can suspend the Claimant without pay. In fact, Exhibit P3 states that:

“…All terms and conditions of employment remain as stated in your original letter of offer.”

The said offer letter (Exhibit P2) did not make provision for suspension or give the employer the right to suspend at all. The main concern of the court is whether or not the employer has the power to suspend the employee, but the Court will find out if the employer has the power to suspend and it does this by an examination of the terms of contract binding them as the terms of contract is the basis/ foundation upon which the contract rests. Parties are bound by the terms of any agreement between them. See Adetoro v. Union Bank of Nigeria Plc [2007] LPELR-8991 (CA).A keen perusal of Exhibit P2 which embodies the contract of Employment, and particularly paragraph 2, already quoted above restates:

‘You may terminate this contract by giving a one (1) month notice or cash in lieu while the Bank reserves the right to terminate the employment for misconduct or unsatisfactory performance before the end of the contract period….”

The implication of which is, parties never envisaged or intended that the employer in this case may suspend the claimant for disciplinary purpose not to talk of suspension without pay. It then means that the suspension of the claimant by the defendant is in breach of the contract of employment, ditto the suspension without pay. A person unlawfully suspended from work can seek redress in court and claim his full salary see ACB Ltd v. Ufondu [1997] 10 NWLR (Pt.523) 169 CA. In S.P.D.C.V. EMEHURU, 2006 LPELR 7728 where the plaintiff was placed on suspension for about two years the court held as follows:

“When an employee is placed on suspension he is placed on hold, he lives day by day in anticipation of either being recalled or laid off. He is not at liberty to utilize his time elsewhere nor as he desires until after closing hours. This was the exact disability placed on the respondent by the term of page 2 the letter of suspension from duty dated the 7^th June, 1994…to have kept an employee on suspension for that long is in fact, unjustified, cruel and unduly oppressive.” – Pg 192 – 193.

I therefore find premised on the above that the claimant’s suspension for almost six(6) years without pay by the 1st defendant is wrongful and unjustified and he is therefore entitled to special damages by way of his salaries from 11^th October, 2011- 14^th August, 2017. I so hold.

The Claimant’s gross salary per annum is N4,800,000.00 (Four Million, Eight Hundred Thousand Naira, Only) vide paragraph 25 and 31 of the statement of facts before other deductions, see also paragraph 13 of the additional witness statement on oath. In paragraph 12 of the statements of facts the claimant averred that the claimant was on an annual salary of N4,060,000.00K and this fact was admitted by the Defendant in paragraph 2 of the statement of defence. It is also on record that the claimant served on the Defendant a notice to produce dated 12^th of January, 2018 and filed 15^th January, 2018, requesting for amongst others the pay slips of the Claimant for the year 2011, this was never produced in court by the Defendant. The claimant in addition stated in his evidence in chief vide paragraph 33 of his witness statement on oath dated 14^th August, 2017 that:

That I know the Defendant has a penchant of depriving the staff of vital information as it relates to the entitlement, and others when in service.

This will lead me to the evidence in chief of the claimant where he led evidence that an unsigned letter titled “Reviewed compensation package” addressed to him was given to him by the Defendant, although he acknowledged receiving the letter, the copy given to him was unsigned, he thereafter tendered same without objection by the Defendant, this was admitted as Exhibit P14. I acknowledge the position of the Law on an unsigned document that it lacks any probative value, leaving that aside, the available evidence, particularly the Defendant’s admission of paragraph 12 of the claimant’s statement of facts in its paragraph 2 of the Statement of Defence, leads me to the indisputable conclusion that the emolument of the claimant is as stated in paragraph 12 of the statement of Facts. It is worthy of note that this evidence of the emolument package of the claimant per annum while he was in the service of the Defendant was neither rebutted or disputed by the Defendant throughout the trial of this case. The Defendant only had this to say through DW1 under cross examination by claimant’s counsel; “I am not privy to any information about the salary of the claimant”. I therefore hold that based on the preponderance of evidence that the last emolument package of the claimant paid by the Defendant is N4,060,000.00 per annum after deductions. The position of the law on the standard of proof required to establish a claim for special damages is as stated in the case of Ezenwa Brothers Nigeria Ltd. v. Ona-Jones Nigeria Ltd. [2012] LPELR-9789(CA) Per Jauro, J.C.A “A claim for special damages must be strictly proved. I must however add that the proof of special damages is not radically different from the general method of proof in civil cases. It is equally proved on the balance of probability. See S.N. Nwabuoku v. P.N. Ottih [1961] 1 ALL NLR 487, Oshinjirin & Ors. V. Alhaji Elias & Ors. [1970] 1 All NLR (Pt.1) 153 at 156.” See also Thomas & Ors v. Shell Petroleum Dev. Coy. (NIG) Ltd. [2010] LPELR-8626 (CA).

I therefore find based on the above reasoning that the claimant has adduced sufficient evidence in proof of this leg of the claim, having held that the claimant’s appointment was validly terminated on the 20^th of October, 2017, and his suspension without pay wrongful, I hold that he is entitled to his emoluments calculated from 11^th October 2011 (the date he was suspended) to 14^th August 2017 (the date this case was filed) at the rate of N4,060,000.00 per annum calculated as follows:

11^th October 2011- 14^th August 2017 = 5 years and 9 months = 69 Months

N4,060,000.00 ÷ 12 = N338, 333.33K p.m

N338, 333.33K X 69 = N23, 345,000.00

The Claimant is therefore entitled to a sum of N23, 345,000.00 (Twenty three million, three hundred and forty-five thousand naira), the total sum for his salaries from 11^th October 2011 to 14^th August 2017. I so hold.

The Claimant is also claiming pensions and other entitlements including but not limited to the terminal benefits, allowance and emolument to be calculated and paid to the Claimant up till the final determination of this suit. I find in respect of the above that the claimant is entitled to two months’ salary from the date of filing of this suit to when the statement of defence was served on the claimant i.e 20^th October, 2017, from the record of this court, that was the date when the claimant became aware that his appointment has been terminated vide the Statement of Defence served on him. The number of days from 14^th August, 2017 to 20^th October 2017 is two months and six days is calculated as follows:

N338, 333.33K p.m x 2 (months) = N676,667.00K

Six (6) days = N67, 667.00K

TOTAL = N744,334.00K

N23, 345,000.00K + N744,334.00K = N24, 089,334.00K

TOTAL SUM = N24, 089,334.00K (Twenty four million, eighty nine thousand, three hundred and thirty four naira).

The total entitlement of the claimant is therefore N24,089,334.00K (Twenty four million, eighty nine thousand, three hundred and thirty four naira)

In respect of his other entitlements and pension contributions. DW1 under cross examination on the 14^th of May, 2018 testified as follows:

– In a dismissal, the party is not entitled to any benefit, but when it comes to contributory pension, he needs to approach his pension manager.

The defendant has not denied that the Claimant was on contributory pension and therefore entitled to his contributory pension with his pension managers, he is therefore advised to approach his pension manager for his entitled pension. However on his other entitlements, the position of the law is that:

Dismissal carries infamy and deprives the dismissed employee of benefits while termination of employment does not. See Abomeli v. NRC Supra. in the instant suit, I find the Claimant is not entitled to any terminal benefits, allowances and emolument apart from the sum already granted earlier in this judgement, after 20^th October, 2017 when he was dismissed by the defendant. I so hold.

On the Claim of 35% interest until Judgment is given and 21 % interest from day of Judgment until the entire sum is liquidated, it is pertinent to note that pre-judgment interest must not only be pleaded but must be strictly proved, while post judgment interest is discretionary See Farasco Nig. Ltd & Anor v. PZ Ind. [2010] LPELR-4142 (CA); Mr. Kurt Severinsen v. Emerging Markets Telecommunications Services Limited [2012] 27 NLLR (PT.78) 374 NIC. There is no evidence before me to support the leg of the claim seeking pre judgment interest, the claim therefore fails. I so hold.

The issue of special damages for embarrassment, harassment, intimidation and psychological trauma as well as general damages fails as the position of the law is that a claim for damages is not normally entertained in employment cases, and the only award the court can make to an employee are his accrued rights and salaries under the contract of employment See Ezenduka V.ANMMCO &Ors 2016 N.L.L.R Part 225, Pg. 123 NIC @142. I therefore find that the claimant having been granted his accrued rights in this case is not entitled to any other damages, I so hold.

The claimant also sought an Order of Court compelling the Defendant to issue him with a certificate of discharge from his employment, the defendant having investigated the case of gross misconduct levied against the claimant, invited him to its disciplinary committee and deemed it necessary to terminate his employment vide Exhibit B1 for gross misconduct, which came to the notice of the claimant on 20^th October, 2017. The claimant cannot deny this fact having been put on notice in by the statement of defence in this suit. Exhibit B1 remains a letter of dismissal and this leg of the claim is superfluous and therefore fails as the employment stands determined as at 20^th October. 2017. I so hold.

It is in the light of all the above that I hold in all that the Claimant’s claims succeed in part and for the avoidance of doubt I declare and order as follows:

That the suspension without pay of the claimant is wrongful.
That the Claimant is entitled to a total sum of N24, 089,334.00K (Twenty four million, eighty nine thousand, three hundred and thirty four naira) as his emoluments from 11^th October 2011 to 20^th October, 2017 .
That the dismissal of the claimant by the defendant is valid.
I make no award as to damages.

I make no order as to costs.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge.