IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE
DATE: 6TH NOVEMBER, 2019 SUIT NO: NICN/CA/42/2017
BETWEEN
SUNDAY AKPAN ESSIEN …………………………………. CLAIMANT
AND
UNION BANK OF NIGERIA PLC ……….. DEFENDANT
REPRESENTATION
CHIEF ANTHONY A. EYO Esq. for the Claimant
NSIKAK IKPEME Esq. for the Defendant
JUDGMENT
INTRODUCTION
This suit was instituted by the Claimants vide a Complaint dated and filed 18th July, 2017 asking for the following reliefs:
- A DECLARATION that the summary dismissal of the Claimant for gross misconduct by the Defendant as contained in the Defendant’s letter of 23rd July, 2012 is unlawful, null and void
- AN ORDER setting aside the purported dismissal of the Claimant from the services of the Defendant as conveyed by the Defendant’s letter of 23rd July, 2012
- AN ORDER of perpetual injunction restraining the Defendant either by its Directors, Managers, Officers, Agents, Privies or Servants or by any person(s) whatsoever from giving effect to the letter of dismissal dated 23rd July, 2012 or treating the Claimant as a dismissed staff of the Defendant
- AN ORDER compelling the Defendant to pay the Claimant damages in the sum of N100,000,000.00 (One Hundred Million Naira) only for the unlawful dismissal
- AN ORDER of this Honourable Court directing the promotion of the Claimant to the position to the position of Officer III with from July, 2012 at the monthly salary of N105,300.00 (One Hundred and Five Thousand Three Hundred Naira) only
- AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant his unpaid salaries for the period he was unlawfully dismissed by the Defendant covering July, 2012 till June, 2017 at the monthly salary of N105,300.00 (One Hundred and Five Thousand Three Hundred Naira only amounting to N6,318,000.00 (Six Million Three Hundred and eighteen Thousand Naira) only
- AN ORDER compelling the Defendant to pay to the Claimant forthwith the total sum of N4,784,440.00 (Four Million Seven Hundred and Eighty Four Thousand Four Hundred and Forty Naira) only being the pension and gratuity of the Claimant computed at the Grade Level Officer III with twenty two (22) Years of service broken down as follows:
(a) Gratuity N1,396,600.00 (One Million Three Hundred and Ninety Six Thousand Six Hundred Naira) only.
(b) Pension N3,351,840.00 (Three Million Three Hundred and Fifty One Thousand Eight Hundred and Forty Naira) only
Total N4,748,440.00 (Four Million Seven Hundred and Forty Eight Thousand Four Hundred and Forty Naira) only
8(a). In the alternative to Relief No. 6 and 7, AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant his unpaid salaries for the period he was unlawfully dismissed by the Defendant as a “B” Signatory Supervisor Covering July, 2012 to July, 2017 at the monthly salary of N61,798.33 (Sixty One Thousand Seven Hundred and Ninety Eight Naira Thirty Three Kobo only amounting to N3,707,880.00 (Three Million Seven Hundred and Seven Thousand Eight Hundred and Eighty Naira) only
(b)AN ORDER compelling the Defendant to pay to the Claimant forthwith the total sum of N3,390,140.00 (Three Million Three Hundred and Ninety Thousand One Hundred and Forty Naira) only being the pension and gratuity of the Claimant computed as the Grade Level of B Supervisor with twenty two (22) years of service broken down as follows:
(i) Gratuity N997,100.00 (Nine Hundred and Ninety Seven Thousand One Hundred Naira) only
(ii) N2,393,040.00(Two Million Three Hundred and Ninety Three Thousand Forty Naira) only
Total N3,390,140.00 (Three Million Three Hundred and Ninety Thousand One Hundred and Forty Naira) only
- Interest upon the total judgment sum at the prevailing banking rate with effect from the date judgment is entered in this suit until the final satisfaction of the judgment debt by the Defendant.
SUMMARY OF FACTS
According to the Claimant in his Statement of Facts, the Claimant was employed by the Defendant as a Messenger on the 15th of May, 1990 vide the letter dated 27th December, 1990 and as at the time he was dismissed from the services of the Defendant in July, 2012, he had risen to the post of B Supervisor. While he served as B Supervisor, one John Etim Archibong was designated as the A Supervisor who happened to be the immediate boss and superior to the Claimant at the clearing centre of the Defendant. The duties of the Defendant bank clearing centre included:
(a) Receiving cheques from branches and stamping them with the clearing ‘Received stamp’
(b) Sending all the stamp cheques for that da to the Centre Manager, Mr D. S. Ekpoh who will confirm and endorse his initial on the cheques
(c) Photocopying the returned cheques and registering them in the Record Book kept for the purpose
(d) Capturing the cheques in a USB flash
(e) Transmitting the original cheques and the USB flash to the Centre Manager, Mr D.S Ekpoh for confirmation; and
(f) The Centre Manager and the A Signatory Supervisor (Mr John Etim Archibong) would then lock the original cheques and USB flash in a box meant for that purpose and thereafter proceed to Central Bank for further clearing activities.
The Claimant, being a junior officer, was to act as an assistant to the A Signatory Supervisor and the Centre Manager. All actions of Claimant were subjected to confirmation. In December, 2011, one Eyo Umoh Archibong from the marketing section of the Defendant, on discovering certain discrepancies in the value of cheques forwarded by the Clearing Centre of Defendant to the Central Bank of Nigeria, Informed the Centre Manager (Mr. D.S Ekpoh) on this. This led to the series of activities that culminated in the dismissal of the Claimant from the services of the Defendant in July, 2012. A dismissal which the Claimant now challenges in this suit.
On the part of the Defendant, they stated in their Statement of Defence dated and filed 14th November, 2017 that whereas the Claimant was their staff from 5th May, 1990 to 23rd July, 2012 when he was dismissed, the Claimant was in actual fact, the Defendant’s representative at Central Bank of Nigeria Clearing House. That the job duties of the Claimant are not limited to what he listed in his Statement of Facts; his job duties included transporting the clearing instruments to the CBN Clearing House, receiving of other banks’ cheques from Defendant’s branches within Calabar axis, processing of cheques received by storing and capturing details of the cheques received on an Excel template for the Centre Manager’s review, conveying of the cheques which would be placed in the clearing box to the CBN on a daily basis (where he was also expected to collect the Defendant’s cheques lodged in other banks), upon returning from the CBN Clearing Centre, capturing/registering the detail of cheques collected from other banks at CBN Clearing House, photocopying of cheques received and filing off of same. That granted, instruments meant to be sent to CBN Clearing House ought to be reviewed by Claimant’s line of supervisors but there is no indication such was followed in the matter leading to the dismissal of the Claimant. While denying paragraph 13 of Claimant’s statement of Facts, Defendant stated that the fraud leading to Claimant’s dismissal came to light on 14/12/2011 when the Clearing Manager, D.S Ekpoh was reconciling the Centre’s End Point Suspense GL Account and discovered that a Zenith Bank Calabar Branch Cheque No. 00000261 for N1,737,000.00 was debited to the End Point Suspense account on 09/12/2011 whereas the credit did not reflect on the Centre’s Presentation Form received from Central Bank of Nigeria Clearing House. This led to the series of activities that culminated in the dismissal of the Claimant from the services of the Defendant.
COMMENCEMENT OF HEARING
Hearing in this suit commenced on the 22nd of February, 2018 whereby the Claimant himself testified as CW1, adopted his witness statement on oath, tendered documents admitted in evidence and was cross examined. Subsequently, Claimant closed his case on 10th July, 2018.
On their part, Defendant opened their defence on the 14th of February, 2019 by calling one Kolawole Aminu as DW1 who adopted his witness statement on oath, tendered documents which were admitted as exhibits and was cross examined. Subsequently, Defendant closed their defence on 21st May, 2019.
Thereafter, case was adjourned to enable parties file, exchange and adopt their final written addresses.
DEFENDANT’S FINAL WRITTEN ADDRESS
In Defendant’s final written address dated 18th June, 2019 and filed on 20thJune, 2019 five (5) issues for determination:
- Whether the master in a mere master-servant relationship is not at liberty to dismiss his servant
- Whether the employment of the Claimant with the Defendant was one with statutory flavour
- Whether parties to a written contract are not bound by terms of their contract
- Whether facts in a Statement of Defence which are not disputed are not deemed admitted
- Whether the witness Statement on Oath of the Claimant is incompetent for not having been signed by the Claimant
ON ISSUE 1: Whether the master in a mere master-servant relationship is not at liberty to dismiss his servant
Learned Counsel to Defendant submitted that in master-servant relationship, the master has the right to terminate the appointment of his servant for good or bad reasons or no reason at all. He relied on Obanye V. UBN Plc (2019) 4WRN 50 @68 Lines 6 – 10.
Learned Counsel submitted further that it is evident that the Claimant also disobeyed a lawful order to sign the attendance registry the period he was on suspension. This is contrary to the content of his letter of suspension and Exhibit C9.
That given the nature of the employment of the Claimant and the circumstances leading to his dismissal, Claimant is only entitled to his pension which is with Claimant’s Pension Administrator.
He therefore urged the Court to resolve this issue in favour of the Defendant.
ON ISSUE 2: Whether the employment of the Claimant with the Defendant was one with statutory flavour
Learned Counsel submitted that in employment with statutory flavour, procedures for employment and discipline are usually stated in the relevant statute. That from the facts of this case, the employment of the Claimant is not one with statutory flavour.
He therefore urged the Court to resolve this issue in favour of the Defendant.
ON ISSUE 3: Whether parties to a written contract are not bound by terms of their contract
Learned Counsel to Defendant submitted that parties are bound by the contract and the terms of the contract entered by them. In the case herein, Exhibit D8 is the document which regulates the relationship between the Claimant and the Defendant. Moreso, Exhibit D9 further relied on by the parties herein further spells out other terms regulating the relationship between the Claimant and Defendant. Article 4(iv) (a) & (b) of Exhibit 9 provides for summary dismissal. The procedure is for a query to be issued and the person queried to defend himself in writing. In the case herein, Claimant was served with a written query to which he responded before he was dismissed.
He therefore urged the Court to resolve this issue in favour of the Defendant.
ON ISSUE 4: Whether facts in a Statement of Defence which are not disputed are not deemed admitted
Learned Counsel to Defendant submitted that the trite law is that undisputed/uncontroverted facts in pleadings are deemed admitted. He referred Court to UNIC Insurance Plc V. Fadayi & Ors (2018) LPELR – 45571 (CA). In the case herein, Claimant received Defendant statement of defence yet he refused to file a reply. Failure of the Claimant to file a reply is deemed to amount to admission in facts stated in Defendant’s statement of defence.
He therefore urged the Court to resolve this issue in favour of the Defendant.
ON ISSUE 5: Whether the witness Statement on Oath of the Claimant is incompetent for not having been signed by the Claimant
Learned Counsel submitted that by virtue of Order 3 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, it is the Claimant who should depose to the witness statement on oath being that it is the Claimant’s name that is on it. That between the signature of the Claimant on Exhibit D8 and the signature on the witness statement on oath, there is a world of difference. That being that the Claimant never stated before this Court that he has more than one signature, then it was not the Claimant who adopted the said statement as his witness statement on oath that signed it. In this respect, the Claimant’s witness statement on oath is incompetent before this Court.
He therefore urged the Court to resolve this issue in favour of the Defendant.
In all, Learned Counsel to Defendant submitted that the case of the Claimant has failed woefully and as such, the Court should dismiss same with cost.
COURT
Having gone through the case of the Claimant, defence of the Defendant, evidence adduced and submissions of Learned Counsel to the Defendant, this Court has distilled a sole issue for determination, to wit:
Whether given the circumstances, the Claimant has proved his case to be entitled to the reliefs sought.
For starters, this Court wishes to state that the Claimant in this case did not file their final written address and no reason was given whatsoever, howsoever for so doing. Be that as it may, the Court will proceed to determine this case based on the extent to which the Claimant presented his case and based on the extent the Defendant presented their defence.
In the case herein, Claimant’s reliefs are based on the ground that his dismissal ought not to have happened the way it did. As a result, he is asking for salaries, promotion, etc which extends from July, 2012 when he was dismissed to June, 2017 which is the same year with when he filed this suit.
Given that the employment is one of master-servant, the settled law is that the master can fire with or with no reason. I must also enter a caveat here that when a master is firing with or without reason, the fire must be within the colour and ambit of the terms and conditions of the employment. What this means is that he cannot fire in flagrant disregard to the procedure stated in the terms and conditions of the employment. See Obaje V. N.A.M.A (2014) All FWLR (Pt.732) whereby it was held thus:
An employer can also terminate the contract of employment with his employee at any time and for any reason or for no reason at all, provided the terms of the contract are complied with.
If the master fires in flagrant disregard to the terms and conditions of the employment, then his power to hire and fire at any time with or without reason becomes another issue different from firing outside the laid down procedure in the terms and conditions of employment. Termination or dismissal from employment which fails to adhere to the terms and condition of employment is wrongful and when the Court finds this so, the remedy of the Claimant whose employment is governed by the common law of master-servant is not in reinstatement or collection of salary from the time he was dismissed till date but in damages. The Court will always arrive at a good sum as damages by a care consideration of the facts and circumstances of the case.
A Claimant who seeks declarative reliefs that his employment was terminated wrongly will have to prove the following:
- That he is an employee of the Defendant
- The terms and conditions of his employment; and
- The way and manner, and by whom he can be removed.
It is not in principle for the employer who is a Defendant to an action brought by the employee to prove any of the foregoing. See NIMASA V. Obey (2014) 2 WRN P. 83 @ 92 R. 9
In the case herein, it is not in dispute that the Claimant was in the employment of the Defendant until July, 2012; the terms and condition of employment from the employment letter to the Collective Agreement are in evidence before the Court. However, the Claimant maintained that he was not given fair hearing before he was dismissed.
On the part of the defence, a Defendant who insists that the termination or dismissal of the Claimant was lawfully, the law imposes a duty on him to prove the following:
(a) That the allegation leading to the termination or dismissal of the Claimant was disclosed to the Claimant
(b) That the Claimant was given fair hearing before the termination/dismissal
(c) That the employer believed that the employee committed
the offence after hearing witness
See Olorutoba-Oju & 4Ors V. Abdul-Raheem& 3Ors (2009) 13 NWLR (Pt. 1157) P.83
In the case herein, the allegation against the Claimant borders on financial fraud. From the nature of the pleadings of the Claimant, he seems to pass the buck of the blame to his superiors – Mr D. S. Ekpoh (the Centre Manager) and Mr John Etim Archibong (the A Supervisor). He also posited that the confession of the Zenith Bank Staff exonerated him. On the part of the Defendant, he stated that the duties of the Claimant were more than what he stated in his pleadings. They went on to list the duties of the Claimant. From the facts and evidence adduced in this case, this Court finds and I so hold that the job duties of the Claimant included what was listed by the Defendants in their pleadings.
On disciplinary procedure leading to dismissal, Article 4(iv) of the Collective Agreement relied on by both the Claimant and the Defendant provides for a written query on the offender and for the offender to defend himself by a reply to the query. In N.J.C. &Ors V. Hon. Justice Jubril Babajide Aladejana & Ors. (2015)All FWLR (Pt. 772) 1798 the Court held:
Fair hearing does not necessarily mean oral hearing. Hearing in writing is sufficient so long as the affected party is given an opportunity to respond to the allegation against him. An administrative body has the discretion to decide whether to deal with a matter before it by oral hearing or merely by written evidence. Thus dealing with a matter on printed evidence or communication only is not by itself breach of fair hearing. In the instant case, where the 1st Respondent was given opportunity to defend himself against the allegations against him, the Court of Appeal held he was given fair hearing.
In the case herein, the Claimant was given opportunity to defend himself in writing as provided by the terms and conditions guiding the contract of employment. The terms and conditions do not provide for oral hearing. Therefore, had Defendant gone ahead to conduct oral hearing on the allegation against the Claimant, that can only amount to a surplusage as they were not under any legal obligation to so do. In the event that they were not satisfied with the written answer given by the Claimant, they can actually exercise their right on summary dismissal. In this light, I do not see any wrong in the procedure leading to the dismissal of the Claimant, and I so hold.
In all fairness to the Claimant, he occupied a position of utmost care and duty. Even if for any reasons his superiors failed to review his actions, that is not reason enough for him to be reckless to the point of leaving the door open for pilfering in the matter of clearing cheques within the Defendant Bank and the CBN Clearing House.
Given the circumstances of this case and the evidence adduced in this case, this Court is not minded to interfere with the decision of the Defendant to dismiss the Claimant. It will suffice to say that even if the Centre Manager, the A Supervisor were to be brought before this Court inclusive of the Claimant herein, inasmuch as it is evident that there was financial fraud and loss of money under their watch, the law of tort sees them as joint tortfeasors given the fiduciary position they all occupy, a position which requires them to be dutiful with utmost care.
On Claimant’s claim on gratuity and pension, this Court wishes to state that given that he was dismissed from service, he is not entitled to gratuity. On pension, from the evidence adduced in this case, it is evident that the Claimant’s pension is covered by the Pension Reform Act, he would do well to proceed to his Pension Administrator to access his pension.
From all that have been said above, this Court finds no merit in the case of the Claimant, and same is hereby dismissed.
I make no order as to cost. Parties shall bear their respective costs
Judgment entered accordingly.
…………………………………..
HON. JUSTICE M.N ESOWE
