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National Industrial Court

Alabi David Uanzekin -VS- United Bank for Africa Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN IN IBADAN

 

BEFORE HIS LORDSHIP HON. JUSTICE F.I. KOLA – OLALERE

 

Dated: November 19, 2019                                                            Suit No: NICN/IB/ 110 / 2014

Between:

Alabi David Uanzekin         ——————————————–      Claimant

And

United Bank for Africa Plc.            ——————————————-       Defendant

 

Representation:

OjehomonBabatunde with Benson Uzu for the Claimant.

O.A. Popoola for the defendant.

COURT’S JUDGMENT

  1. On September 12, 2014 the claimant filed this complaint against the defendant for the following reliefs:
  2. Declaration that the purported dismissal of the claimant on the 13th day of February, 2013 was unlawful, irregular, null and void.
  3. An Order directing the re-instatement of the claimant into employment of the Defendant forthwith.
  4. An Order directing the defendant to pay the claimant his benefits and entitlements.

OR IN THE ALTERNATIVE:

The Claimant’s claims’ against the Defendant are as follows:

  1. A Declaration that the purported dismissal of the claimant on the 13th day of February, 2013 was null and void.
  2. An Order directing the defendant to convert his dismissal to Termination of employment.

iii.   An Order directing the defendant to pay the salaries which was N147, 000 monthly and other benefits of the claimant from 13thof February, 2013 till the Day of Judgment.

  1. General damages of the sum of N10,000,000.00(Ten Million Naira) for the wrongful dismissal of the claimant by the defendant.

Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their statement of defence together with other processes in compliance with the Rules of this Court.

  1. CLAIMANT’S CASE AS PLEADED

The case of the claimant is that he was a former employee of the defendant before he was unlawfully dismissed by the defendant. That prior to his dismissal, he was sent on recovery suspension because of some temporary overdraft facilities given to some Saki customers of the defendant who could not pay back. He went on that his dutiesas a cash officer among other things include; authorizing transaction(s) above teller’s limit, which he did diligently and that he was never interrogated for any issue even though he was present at the disciplinary committee session.

  1. DEFENDANT’S CASE AS PLEADED

The case of the defendant is that, the claimant was an ex-staff of the bank and was redeployed to the defendant’s Saki business office as a Cash officer. The defendant averred that the claimant was found culpable of involvement in dry posting, which misled the bank into availing loans (Temporary Overdraft) to customers with fictitious turnovers created by the dry posting; thereby occasioning financial loss to the defendant. To the Bank, the claimant failed woefully in the discharge of his duty with the defendant.

During the hearing of this case, the claimanttestified for himself as CW1 and tendered 6 Exhibits marked as Documents C.1 – C.6 as listed and frontloaded in this case at pages 10 to 17 of the Court’s file. The defendantalso called one witness; ObisanyaRotimi as (DW1). It also tendered some exhibits in evidence marked asDocuments D.1 to D.7 aslisted and frontloaded at pages 251 to 344 of the file. In line with the Rules of this Court, Counsel were directed to file their final written addresses by the Court and they complied.

  1. WRITTEN ARGUMENT OF THE DEFENDANT

In his final written address, the defendant’s counsel raised these issues for determination:

  1. Whether upon evaluation of the Claimant’s case, it can be said that the Claimant has by way of credible evidence shown that his dismissal was unlawful to be entitled to the reliefs sought and whether the reliefs as contained in the Statement of Claim are grantable by this Honourable Court.
  2. Whether upon consideration of the totality of evidence led herein, it can be said that the Claimant was not afforded fair hearing.

  1. Arguing the first issue, counsel submitted that it is the law that a Claimant must succeed on the strength of his case and not on the weakness inherent in the Defendant’s case. He went on that the onus of proof remains on the party who asserts it or who will fail if no further evidence was adduced. And that the Claimant who alleges that his dismissal is unlawful to succeed must be able to show by way of credible evidence that the said dismissal was wrongful or unlawful; citing NEPA v. Inameti [2002] 11 NWLR (Pt. 778) 397 at 425 para H & 426 para A; Ike v. Ugboaja [1993] 6 NWLR (Pt. 301) 539 and Okubule v. Oyagbola [1990] 4 NWLR (Pt. 147) 723;Borishade v. N.B.N Ltd. [2007] 1 NWLR (Pt. 1015) 217 at 256 paras D-F.

  1. Counsel again argued that by a close look at the Statement of Claim, the Reply to the 2nd Amended Statement of Defence as well as the witness written statement on oath sworn to on September 12, 2014 and July 8, 2015 respectively; the claimant presented two different reasons why this Court should hold that his dismissal is unlawful. The reasons are: that the Claimant noticed dry posting and reported same (as stated in his statement on oath of September 12, 2014) and the other one is that no dry posting took place within the banking hall as stated in his statement on oath of July 8, 2015. Counsel submitted that the law has long been settled that a party will not be allowed to approbate and reprobate at the same time, citing Ajidev. Kelani [1985] 3 NWLR (Pt. 12) 248 at 269 paras C-D;Ude v. Nwara [1993] 2 NWLR (Pt. 278) 638 at 662 paragraph G andEzembav.Ibeneme [2004] 14 NWLR (Pt. 894) 617 at 654 paragraphs A – F. Counsel went onthat CW1 is not a witness of truth and that none of the two testimonies is believable. On this basis, counsel contended that the Claimant has nothing; neither evidence nor pleadings to show that his dismissal is unlawful. He maintained thatthe claimant, on wholays the burden of establishing his case, has failed in discharging his obligation.

  1. Furthermore, counsel argued that the defendant has justified claimant’s dismissal through the evidence of DW1 especially in paragraphs 11-16 of DW1’s written statement on oath. He continued that under cross examination, the claimant admitted that he has an authorization number and that for every transaction which he authorize; his authorization number will feature therein referring to Exhibits D3 and D4. Counsel submitted that the dismissal of the claimant is lawful and that it was done in consonance with the provisions of Document D.7, which regulates the contract of employment between the Claimant and the Defendant.

  1. On relief “a”, in the main relief and in the alternative, counsel submitted that same cannot be grant since the Claimant’s act constitutes gross misconduct, which claim is further supported by Exhibits D3, D4 and D7 same is lawful.

On relief “b”, counsel submitted that a willing employee cannot be imposed on an unwilling employer, citing Oyedelev. Ife U.T.H [1990] 6 NWLR (Pt. 155) 194; Iwuchukwuv. Nwosu [1994] 7 NWLR (Pt. 357) 379 andSavannah Bank Plc. v. Falokum [2002] 1 NWLR (Pt. 749) 544.

On relief “c”, counsel submitted that the entitlement having not being particularized, this court is devoid of power to grant same, citing Unijosv. Dr. M.C Ikegwuoha [2013] 9 NWLR (Pt.1360) 478 at 498 paras C-G.

On relief “b” as contained in the alternative prayers, counsel referred the court to clause 15, particularly clause 15.1.10 of Document D.7, which stipulates that the punishment for misconduct is dismissal?

  1. Counsel went on that assuming but not conceding that the Claimant’s dismissal was unlawful, the law is settled that where it is established by way of credible and believable evidence that an employee has been unlawfully dismissed, such an employee will be entitled to damages; which in the instance case, will be one-month salary in lieu of notice, in accordance with the provisions of the contract of employment between the parties evidenced by Exhibit C1.

On the issue of general damages, counsel submitted that the law is trite that general damages will not be awarded in an action of termination of employment or dismissal of an employee, citing Wilbrosky Nig. Ltd v. Macaulay [2009] LPELR-CA/PH/177/96 and he urged the Court to so hold.

  1. Arguing issue two, counsel submitted that what the law requires of an employer is to show or establish by way of credible evidence that the person accused of misconduct was given the opportunity to correct or rebut what is prejudicial to him be it in writing or orally, citingNEPA v. Ango [2001] 15 NWLR (Pt. 737) 627 andMomoh v. CBN [2007] 14 NWLR (Pt.1055) 504, page 526 paragraphs B-E. To counsel in the case at hand, the claimant was given opportunity to rebut or correct the allegation levied against him vide Document D.6 and that he responded vide the same Document.

Counsel noted that the Claimant in one breath admitted that he was invited but denied that he was interrogated;he asserted that he was at the said meeting but that no question was directed to him. Counsel again contended that by the credible evidence vide Document D5, the claimant was present at the meeting and he was interrogated, contrary to his assertion. Counsel submitted that the claimant was given fair hearing and urged the Court to so hold.

  1. CLAIMANT’S WRITTEN ARGUMENT

Counsel to the claimant filed his final written address on this case and formulated the following issues for the determination of the court:

  1. Whether the dismissal of the claimant from the service of the Defendant was in line with the terms and conditions of his employment?
  2. Whether the Claimant was given fair hearing in the purported trial that led to his dismissal?

iii.         Whether the claimant is entitled to the reliefs claimed with respect to the facts and circumstances of this case?

  1. Arguing issue one, counsel submitted that in determining whether an employee has been dismissed wrongly or otherwise, the guiding document is the employment contract, which is the offer of employment letter of the claimant. He continued that the letter in question isDocument C.1 dated October 31, 2006. Counsel maintainedthat same document made provisions for termination of employees’ employment; whereas, the claimant was dismissed from the employment of the defendant. Document D.7 in this case is the Group HR Disciplinary Process & Sanctions Policy of the defendant; it is at page 31 of the record. Paragraph 17.3 of Document D.7clearly defines key terms in respect of acts, which will constitute minor misconduct and gross misconduct that will permit the defendant to dismiss an employee without recourse to the content of Exhibit C1. Counsel maintained that Clause 17.3.2 (i) to (xvi) mentioned all the acts that could result in summary dismissal of an employee and that there is nowhere in this clause or in the entire Policythat the ‘dry posting’ is mentionedan offence for which the claimant was dismissed. He continued that the law is trite that no person shall be punished for an act which does not constitute an offence under a written law, citingAokov. Fagbemi [1961] 1 All NLR 400; Paulson v. State [2012] 6 NWLR (Pt. 1297) p. 456; Ogbomorv. State [1985] 1 NWLR (Pt. 2) 223; F.R.N. v. Ifegwu [2003] 15 NWLR (Pt.842) 113 and Asakev. Nigerian Army Council (2007) 1 NWLR (Pt.1015) 408.
  2. Counsel went on that assuming without conceding that ‘dry posting’ is an offence; it isa criminal offence.He submitted that it is the law that where there are allegations of crime against a person, the jurisdiction to determine the allegations is vested in the courts and the exercise of that jurisdiction cannot be usurped by any administrative tribunal, citingDangote v. C.S.C Plateau State [2001] 9 NWLR (Pt. 717) 132; Egbuniwe v. F.G.N. [2010] 2 NWLR (Pt. 1178) p. 348;J.S.C. Cross River State &Anor v. Young [2013] 12 SCM. He also cited in support,section 419A of the Criminal Code Act Cap C.38 LFN and Clause 15.1.4 in Exhibit D7.

  1. Counsel further raised the following “sub-issues” for determination of his issue i.
  2. Whether from the facts and circumstances of this case if there was reason to dry post for the customers?
  3. Whether wrongly booking of TOD qualifies as an act of gross misconduct?
  4. Whether dry posting was established at the RBDC trail?

  1. Under sub-issue 1, counsel referred the court to paragraph 16 of the Statement on Oath of May 20, 2015 sworn to by D.W1 and yetcreatedanother sub-sub-issue one as “will it be necessary to dry post just for the purpose of deceiving the Saki loan committee?” To counsel, manipulators of dry posting are those who approved the loans.

Counsel againcreated another “sub-sub-issue two” and asked:‘Whether a Bank Manager can grant loan without a customer having a good turn over in his/her account?” He submitted that the Manager of a bank need not manipulate customer’s statement of account to enable him/her approve loan or an overdraft, referring to paragraph 24 of DW1’s Statement on Oath. He also cited in support,FRN v. Kalgo [1997]7 NBLR (Pt.1) pg. 356 andFRN v. Edward O. Eduviare&Ors [1997] 7 NBLR (Pt.11) pg. 41. He again referred to clause 7 in paragraph 10 ofDocument D.7.

 

  1. Again, counsel created “sub-sub-issue-three” as: ‘whether the facts about the nature of business of the three customers (Bismos, Rahtaj&Mosade) align with the manner of lodgments and withdrawal into their account’ and referred the court to paragraphs 20 and 21 of his Statement on Oaths, Documents D.2 & D.5 and to section 124 of the Evidence Act. He submitted that there was no reason at all for the claimant or others staff of the defendant at its Saki branch to dry post.

 

  1. Counsel then proceeded to “sub-issue 3” (without arguing his sub-issue two he earlier created) as ‘whether the allegation of dry posting was at any time material to this case established against the claimant by the defendant at the RBDC trial’.Counsel furthersubmitted that the defendant failed to establish that there was dry posting carried out by the claimant to warrant his dismissal from the employment of the defendant. He referred the Court to the cases of:Olatunbosun v. N.I.S.E.R[1988] 3 NWLR (Pt.80) 25 at 54; Shell Petroleum v. Olanrewaju [2008] 12 SCM (Pt.2) pg. 642 at 644 Ratio 1;Ogunsanmi v. C.F. Furniture (W.A.) Company Ltd [1961] W.L.N.R. 327; Boye v. Adeyeye [2012] 12 NWLR (Pt. 1314) pg. 357; Esangbedo v. State [1989] 4 NWLR (Pt. 113) 57 and toYusuf v. State [2011] 10 SCM. He also referred to page 10 at 12 ratio 2 and to page 7 of Document D.7 (Group HR Disciplinary Process & Sanction Policy) in Clause 1& 2.

  1. Arguing issue two of whether the Claimant was given fair hearing in the purported trial that led to his dismissal, counsel submitted that in a judicial or quasi-judicial body, a hearing in order to be fair must include the following: To be present all through the proceedings and hear all the evidence against him; To cross-examine or otherwise contradict all the witnesses that testify against him.; To have read before him all the documents tendered in the evidence at hearing; To have disclosed to him the nature of all relevant material evidence including documentary and real evidence; To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence, and To give evidence by himself, call witnesses, if he likes and make oral submissions either personally or through counsel of his own choice. Counsel referred the Court to Document D.7 (Group HR Disciplinary Process & Sanction Policy) in clause 15.2 at page 25; he also cited in support:Baba v. N.C.A.T.A[1991] 5 NWLR (Pt.192) 388 at 414;Kenon v. Tekam[2001] 10 SCM pg. 138 ratio 5; Imegwu v. Asibelua[2012] 4 NWLR (Pt. 119); Awonyi v. Registered Trustees Amorc [2000] 10 NWLR (Pt. 676) 522 andOgbonna v. Ukaegbu [2005] 17 NWLR (Pt. 954) 432. Counsel further submitted that the purported trial of the claimant on December 11, 2012 was conducted in clear violation of the claimant’s right to fair hearing guaranteed to all persons by section 36(5) of the Constitution of the FRN, 1999 (As Amended) and has occasioned miscarriage of justice.

  1. Arguing issue three of whether the claimant is entitled to his claimed reliefs, counsel submitted that the law is that a claimant who is able to show that his dismissal was wrongful is entitled to reinstatement and payment of his entitlements; referring to Documents C1, C2, C3, and D7.He submitted that these are documents showing the offer of employment, rules and regulations governing the employment contract between claimant and the defendant including steps to be taken on disciplinary action, termination, dismissal of the employee etc. To counsel, based on these documents, the employment of the claimant was clothed with statutory flavor and he urged the court to so hold;relying onAdeko v. Ijebu District Council[1992] ISCNLR 349;F.M.C. Ido-Ekiti v. Alabi [2012] 2 NWLR (Pt. 411) andFakuadev. O.A.U.T.H. [1993] 5 NWLR (Pt. 291) 47.
  2. On Relief (a), counsel submitted that the claimant having shown to the satisfaction of the court that his dismissal was wrongful; the court has only one duty and that is to declare that the trial was a nullity. On Relief (b), he argued that the claimant’s employment was clothed with statutory flavor; and so, the only duty left for the court is to order his reinstatement. OnRelief (c), counsel argued that if reliefsa & b are granted, then relief (c) becomes a surplusage as it is a natural consequence of relief (b).However, claimant’s counselabandoned relief (d)and concluded that the since the claimant has proved his case, he is entitled to the reliefs sought as per his writ of summons and statement of claim.

 

  1. In the defendant’s Reply on point of law, counsel submitted that on the first arm of claimant’s argument as contained at page 3 and the upper part of page 8 of his written address, that it is not the state of our law especially in employment matters, as gross misconduct need not be an offence under the law, citingBamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) at 358 paras A-C andUzoho v. Task Force, Hospitals Mgt. [2004] 5 NWLR (Pt.867) -627 at 644-645 parasA-A.On the submission and conclusion reached by counsel to the claimant that manipulation is a criminal offence, from the totality of evidence; counsel submitted that Section 419A of the Criminal Code Act which learned counsel to the claimant referred to did not classify manipulation strictly speaking as a criminal offence.

  1. On the argument of the claimant in Sub-sub issue 1 of the claimant’s written address, counsel submitted that counsel’s submission here amounts to speculation, which is not supported by evidence on record and an attempt at giving further evidence, which the law frowns at; citingIsah v. State [2007] 12 NWLR (Pt. 1049) 582 at 614 paras A-B.Reacting to Sub-sub-issue 3, counsel submitted that; keeping mute in the face of allegation amounts to admission, citing Utteh v. State [1992] 2 NWLR (Pt. 223) 257 at 274 paragraph E.

  1. On issue 3, counsel submitted that Document C.1 shows the nature of the employment relationship between the parties, which is one that is not governed by statutory flavor; citingC.R.N v. Igwillo [2007] 14 NWLR (Pt.I054) 393 at 420 paragraph A, that an employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern theprocedure for employment and discipline of an employee.

  1. COURT’S DECISION

I have gone through the facts of this case and the written argument of counsel to the parties; from all of these, I am of the considered view that the following issues need to be resolved between the parties:

  1. Whether or not the employment of the claimant was with statutory flavour.
  2. Whether or not the dismissal of the claimant by the Defendant was wrongful and he was giving fair hearing, prior to his dismissal.

iii.         Whether or not the claimant is entitled to his reliefsof declaring that his dismissal is wrongful, irregular, null and void; re-instatement and the payment of his benefits and entitlements. Alternatively, to convert his dismissal to Termination; Order payment ofhis salaries ofN147, 000 monthly including other benefits from February 13, 2013 till the Day of Judgment and payment of N10, 000,000.00 asgeneral damages for wrongful dismissal.

  1. Before resolving the above issues, it is worthy of note that the claimant’s written address is of 48 as against 35 pages and the address is not set out in paragraphs and numbered serially as required by Order 45 Rules 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. In addition, the claimant’s counselproliferate issues in the said written address. For instance, after counsel had formulated three issues for the determination of the court at page 461 of the record, he went on to formulate another three sub-issues under his issue one at page 468 of the record. Thereafter, he proceeded to formulate another set of three sub-sub-issues under sub issue one at pages 468 to 471 and ended up not arguing sub-issue 2 formulated from his issue 1. The said act of proliferation of issues is against the element of brevity and elegance, which legal practitioners are known for. Counsel is to take note ofthe errors already pointed out.                            He is also to be abreast with the provisions of Order 45 Rules 2 of the Rules of this Court in future while filing his written address before this court.

  1. During the hearing of this case, the claimant tendered the following documents as exhibitsto prove his case before the court:
  2. Offer of employment as Document C1
  3. Letter of confirmation of his appointment as Document C2
  4. Conversion notification as Document C3
  5. Letter of redeployment asDocument C4
  6. His Letter of dismissal as Document C5
  7. Copy of receipt from B.F.F Ojehomon (Legal Practitioners) as Document C6.

In its own defence, the defendant tendered the following documents in evidence as exhibits:

  1. Job description manual for cash officer as Document D.1
  2. Internal memo dated the 31st day of August, 2012 as Document D2

iii.   Statement of account of Rahtaj Continental Ventures Limited as Document D3

  1. Statement of account of Muskeem Concept Venture as Document D4
  2. Minutes of the sitting of the Regional Bank Disciplinary Committee dated the 11th day of December, 2012 as Document D5
  3. Query mail of 28th day of August, 2012 as Document D6

vii. United Bank for Africa Plc. Group HR Disciplinary Process and Sanctions Policy as Document D7

  1. Whether the Claimant’s Employment is With Statutory Flavour

In paragraph three of page 38 of the claimant’s final written address at page 497 of the Court’s record, counsel to the claimant argued that the claimant’s employment with the defendant is with statutory flavour. However, upon examination ofthe claimant’s pleadingsand all the documents he relied on before the court, there is nowhere he pleaded that his employment is one with statutory flavour. Besides, counsel did not refer the court to the law that governed the appointment and termination of the claimant’s employment. It is trite that where the conditions for appointment orfor determination of a contract of service are governed by requirementsas stated in an enabling law or Decree, then determination of such appointment must be doneby satisfying such statutory provisions. It is in such situation that the contract of employment is said to be laced with statutory flavour;see Ahmed v. ABU &Anor [2016] LPELR-40261 (CA) andNEPA v. Adesaaji [2015] 58 NLLR (Pt. 202) 498 CA 545-546, paragraphs B-C.

  1. Since there no pleading or evidence before the Court showing that the claimant’s employment is with statutory flavour, the law does not allow the claimant’s counsel to raise the issue in his address. This is because address of counsel on the issue not pleaded however brilliant, cannot take the place of pleading and evidence, seeUBN Plc. &anor v. Ayodare& Sons (Nig.) [2007] All FWLR (Pt. 383)1 at 42, paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 1623. In the circumstance, I find and hold that the employment relationship between the claimant and the defendant isnot laced with statutory flavour but that it is a private employment otherwise known as master and servant relationship.

 

  1. On what regulates the employment relationship between the parties

Having held above that the employment of the claimant is not with statutory flavour but that it is a private employment; the next hurdlefor the Court to cross is to determine the terms and conditions of the said private employment relationship between the parties in order to resolve the rights and obligations of the parties therefrom. In doing this, the court is required to look at the letter of appointment of the claimant and any service regulation connected with the establishment of the employer/defendant; see Odiase v. Auchi Polytechnic, Auchi[2015] 60 NLLR (Pt. 208)1 CA  at 23-24 paragraphsF-A.

  1. Paragraph5 of the claimant’s letter of employment, Document C.1 at page 12 of the record states thus:

In all matter not specifically mentioned in this offer of employment, both parties shall at all times be bound by the information disclosed by you in your form of application/documents submitted for the employment and the terms of the UBA staff handbook for the time being current.

Based on the above quotation,I find and hold that the terms and conditions of the contract of employment between the claimant and the defendant are as contained in the claimant’s Letter of employment,Document C.1; his Letter of Confirmation of employment,Document C.2; his Letter of Conversion Notification,Document C.3; the Job Description Manual for Cash Officer,Document D.1 and the United Bank for Africa Plc.’s Group HR Disciplinary Process and Sanctions Policy, Document D.7. I further hold thatthe rights, duties and liabilities of the parties in this case will be determined from the contents of the mentioned documents before the Court.

  1. On whether the Claimant was giving fair hearing before his dismissal

Counsel to the claimant addressed the court copiously on the issue of fair hearing in his final written address particularly at pages 487 to 496 of the record.To him,before hearing by a judicial or quasi-judicial bodyis in order, the person being tried, which is the claimant in the instant case, must have been allowed: to be present throughout the proceedings and hear all the evidence against him; he must be allowed to cross-examine or otherwise contradict all the witnesses that testified against him; all the documents tendered in the evidence at hearing must be read before him; the nature of all relevant material evidence including documentary and real evidence must be disclosed to him; he should know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence, and then, he should be allowed to give evidence by himself, call witnesses, if he likes and make oral submissions either personally or through counsel of his own choice.He cited in support of this argument, the case ofBaba v. N.C.A.T.A [1991] 5 NWLR (Pt.192) 388 at 414.

  1. The case ofBaba v. N.C.A.T.C [1991] 5 NWLR (Pt.192) 388 referred to by the claimant’s counsel is apposite on this issue, particularly at 418-419 of the report; the court held thus:

Where some allegations have been made against an employee… the employer is entitled to set up a panel to investigate the allegations. Such an investigating panel is not a court of trial; so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or in writing, before it. In the process of investigation, it can receive its information from any source… The panel of inquiry not being a court of trial; none of the persons whose names feature in the inquiry can insist on any right to cross-examine other persons who make allegations or present memoranda at the inquiry. But once the panel has concluded its inquiry and makes up its mind that any points had been prima facie madewhich point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use the point as bases for dispensing with his services.

  1. Also; inEdet v. Inspector General of Police &Anor[2015] 54 NLLR (Pt. 182) 154 at 300-301 paragraphs G-A, Justice B.B. Kanyip (Now Acting President of the NICN) held thus:

Fair hearing is opportunity to be heard. Fair hearing simply means, “Hearing the other side”. In the instance case, the claimant was quarried. He answered the query and a decision was taken. He did not like the decision taken and so he appealed against it: and a final decision of dismissal was taken. The requirement of fair hearing has been met in the instancecase.

  1. In the instant case, the claimant was issued query vide Document C.6 on August 28, 2012 at 6:02pm and he answered the query same day at 6:26pm. See Document D.6 at page 298 of the record. In addition, the claimant was present at the Regional Bank Disciplinary Committee Meeting held on December 11, 2012. See the minute of that meeting at pages 292 to 297 particularly at page 294 of the record. Consequently, I find that the defendant heard the claimant, and I hold that the defendant has satisfied the requirement of fair hearing in this case.

  1. Whether the dismissal of the claimant by the Defendant was wrongful

By its letter of February 13, 2013; which isDocument C.5 at page 16 of the Court’s record, the claimant was dismissed from the employment of the defendant with immediate effect for gross misconduct. The law is that where an employer gives reason for the dismissal of an employee and the reason given is being disputed in court, the onus lies on the employer to justify the reason by evidential proof; see the case of Okwunakwe v. FBN [2015] 53 NLLR (Pt. 180) 568 at 595-596 paragraphs G-B. Also, section 131(1) of the Evidence Act, 2011 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Section 131 (2) of the Evidence Act, 2011 provides that, whenever a person (who in the instant case is the defendant) is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

  1. The claimant’s position is that what the defendant alleged as gross misconduct against him is not a ground of gross misconduct for which he can be summarily dismissed according to the terms of his employment.In the circumstance, I find that the burden of justifying the reason for the claimant’s dismissal is on the defendant in this case.By the deposition of the of the defendant in paragraph 4d, e, h, i and j of its second Amended Statement of Defence and in the written Statement on Oath of DW.1 at pages 170 to 178 of the record, it is the case of the defendant that the claimant was found culpable of involvement in ‘dry posting’and that he was involved in credit posting without actual or real financial backing; which amounts to manipulation of the Bank’s data contrary to the job prescription given to him.To the defendant, getting involved in dry posting is a form of gross misconduct, which automatically attracts dismissal.

  1. In order to further justify its reason for summarily dismissing the claimant with respect to his involvement in dry posting, the defendant exhibited and relied on its Documents D.3, D.4 and D.6 in paragraph 3.19 of its final written address. Document D.3 is the Statement of Account of one Rahtaj Continental Ventures Limited.It is at pages 259 to 268 of the record.Document D.4 is the Statement of Account of Muskeem Concept Venture; it is atpages 269 to 291 and Document D.6 is the Query and answer to query mails of the parties dated August 28, 2012; it is at page 298 of the record. In Document D.6, the query states:

Dear David, above subject refers. We observed various in-and-out on subject account which was authorized by you. Note that it was based on these dry postings that the customer was availed TOD and unable to repay up till today. See break down below:

  1. Then, followed by a table of six columns and ten rows stating details of some transactions in the Bank; dates of the transactions, amount withdrawn, amount deposited, narration, processor and the authorizer. On January 25, 2011 the sum of N2million was deposited and it was authorized by the claimant as ALADAVA17915 at 16:54:44. On June 29, 2011; N800,000.00 was deposited and authorized by the claimant at 15:25:16. Same day, another N1.5Million was deposited and authorized by the claimant at15:37:04. Again at 15:38:15 of that day, the claimant authorized another N1.5Million deposit. After that, on August 23, 2011 the claimant authorized the withdrawal of N1Million from the Bank at 17:42:49.In essence, by this query in Document D.6, the claimant was involved in dry posting in the Bank on January 25, 2011; June 29, 2011 and August 23, 2011 respectively.

  1. Document D.3 is the statement of account of Rahtaj Continental Ventures Limited from July 28, 2010 to August 24, 2011. In this Document, the claimant’s name appeared once on January 25, 2011 that he authorized deposit of N4Million; see page 260 of the record. His name also appeared thrice on June 29, 2011 all authorizing deposit of N3Million, N1Million and N1.4Million respectively; see pages 261 to 262 of the record.

Document D.4 is the Statement of Account of Muskeem Concept Venture at pages269 to 291of the record. Unlike the content of Document D.3, there is nothing recorded against the claimant in this document. There is even no record at all in it for June 29, 2011 and August 23, 2011. In essence therefore, there is no correlation between the transactionsreflected in Documents D.3 and D.4 and the allegation of various in-and-out on subject account which was authorized by the claimantas forming the bases on which the query letter in Document D.6 was issued against the claimant; I so find and hold.

  1. Document D.7 is the United Bank for Africa Plc.’s Group HR Disciplinary Process and Sanctions Policy.Paragraph 15.1 of this Document at page 324 of the record is on Dismissal.Paragraph 15.1.2 of this document states that posting without source documents is a ground for dismissal.Paragraph 17.3.2 of this document at page 331 of the record is on Gross Misconduct and it states that:

The following shall constitute Gross Misconduct. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation shall take place prior to the issuance of a final warning, demotion or dismissal.

Among the listed offences is failure to observe company rules, regulations or procedures under (ix) which the claimant was not queried on, neither was he tried for this offence; see page 332 of the record. That notwithstanding, his letter of dismissal dated February 13, 2013 states that the claimant was dismissed from the employment of the defendant with immediate effect for gross misconduct; see page 16 of the record. In essence, there is no correlation inthe query in Document D.6 and the contents of Documents D.3 & D.4; which the defendant relied on to prove that the claimant committed gross misconduct. Consequently, I find and hold that the defendant has not complied with the terms and conditions of the parties’ contract of employment by summarily dismissing him vide Document C.5. I further hold that the dismissal of the claimant is wrongful. Not merely because of lack of notice or inadequate note but because no offence is established against the claimant to the satisfaction of the Court for which he was dismissed as alleged.

  1. It is to be noted that dismissing an employee from service ispunitive as the employee loses all his entitlements, no matter the number of years he had served his employer. Therefore, such punitive measure must be based on concrete evidenceand it must be in strict compliance with the terms and conditions of the contract of employment. In situations like this, the practice globally now is that such employer should at least give valid reason for the dismissal. See the Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166. Even though the Convention is not yet ratified by Nigeria; this is the current International Labour Standard and International Best Practice that this Court is enjoined to observe in cases like this. See the provisions of section 7 (6) of the NIC Act, 2006 and section 254C (1) (f) & (h) of the Constitution of the FRN, 1999 as amended by Third Alteration Act, 2010. Since, it is not shown in evidence before this Court that the claimant was dismissed for proven gross misconduct listed in the terms and conditions of employment between the parties, I find and hold that the claimant’s dismissal is wrongful and it is hereby set aside.

  1. Whether the claimant is entitled to re-instatement based on his wrongful dismissal

Although I have held above that the dismissal of the claimant is wrongful and the dismissal has been set aside; re-instatement of the claimant as prayed for is out of the question. This is because, the claimant’s employment is not laced with statutory flavour;rather it is a private employment otherwise known as Master and servantrelationship in, which parties are strictly bound by the terms and conditions of the contract.It is not contained in the terms of this employment that re-instatementis a remedy available to the claimant in this instance. See the holding of Chukwuma-Eneh JSC in Ekunola v. CBN &Anor [2014]40 NLLR (Pt. 122)156 at 210 paras E-F. See also the following case on the principle that parties are bound by the terms and conditions of their employment: AminuIsola Investment Limited v. AfriBank Nigeria Plc. [2014] All FWLR (Pt. 716) SC 498, Alagoa JSC at 520-521 para B-A and Atoki v. Ecobank Nigeria Plc. [2014] 47 NLLR (Pt. 151) 33 at 121. Therefore, I hold that the claimant is not entitled to re-instatement in this case.

  1. Conversely,wrongful dismissal of the claimant in the instant case evinces the defendant’s intention to end the employment relationship with him; as the Court cannot force a willing employee on an unwilling employer. In the circumstance, I hold that the claimant’s employment was terminated by the defendant with effect from February 13, 2013 when he was wrongful dismissed vide Document C.5 at page 16 of the record. See the following unreported decisions of this Court on the defendants evincing intention to end employment relationships by wrongly dismissing their employees: Mr. BabatundeOgunsowov. Dana Motors Ltd. with Suit No. NIC/LA/117/2011 judgment of which was delivered on July 10, 2013. See also the judgment delivered on December 11, 2014 in Suit No: NICN/PHC/152/2013 between NwigahGoteh v. Juanita Hotel Ltd. I further hold that the claimant is entitled to his terminal benefits in accordance with the terms and conditions of his employment, less his indebtedness and effective from February 13, 2013 when his employment was wrongly determined.

 

  1. Whether the claimant is entitled to General Damages against the defendant

By his alternative prayer d. the claimant is seeking for the sum of N10,000,000.00 as general damages against the defendant for his wrongful dismissal. Since the Court has held that the wrongful dismissal of the claimant evinces the defendant’s intention to determine the contract of employment between the Bank and the claimant, which is otherwise held to be termination of his employment with full terminal benefit as allowed by his terms of employment and less any indebtedness to the defendant; the claimant is not entitled to general damages again against the defendant on the same issue and I so hold. Consequently, the claimant’s claim for the sum of N10,000,000.00 as general damages against the defendant is accordingly dismissed for lacking in merit.

  1. On the whole, I hold and order as follows:
  2. I hold that the employment of the claimant is not with statutory flavour.
  3. I hold that the claimant was given fair hearing by the defendant before he was dismissed.

iii.      I hold that the dismissal of the claimant by the defendant is wrongful as the alleged gross misconduct upon which the dismissal was based is not justified.The said summary dismissal is accordingly set aside.

  1. I hold that the claimant is not entitled to re-instatement. I further hold that the wrongful dismissal evinces termination of the claimant’semployment with effect from February 13, 2013 when he was wrongly dismissed.
  2. I hold that the claimant is entitled to terminal benefits as guaranteed by the terms and conditions of his employment but less his indebtedness to the defendant.
  3. I hold that the claimant is not entitled to N10,000,000.00 general damages; and so, this claim is hereby dismissed.

vii.    I order that the judgment debt in this case is to be paid within 30days from today together N100,000.00 cost.

Judgment is entered accordingly.

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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