IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 9, 2019
SUIT NO. NICN/LA/318/2014
BETWEEN
Mr. Joseph Abang Bisong
(UBN Plc Staff No. 1215631)- Claimant
AND
Union Bank of Nigeria Plc. (a.k.a. UBN Plc)-Defendant
REPRESENTATION
M. O. Igbaji-Egorp, for the claimant.
F. O. Ogungbemi, with Mrs A. O. Adekoya, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant filed this action on 16th July 2014 vide a complaint, statement of claim, list of witnesses, statement on oath, list of documents and copies of the documents. The defendant responded by filing its statement of defence and counterclaim, list of witness(es), witness statement on oath, list of documents and copies of the documents. The claimant reacted by filing his reply/defence to the statement of defence and counterclaim, further witness statement on oath, further list of documents and copies of the further documents. By a court order granted on 29th November 2016, the claimant was allowed to amend his originating processes.
2. By the amended originating processes, the claimant prays for the following reliefs:
(1) The sum of Eight Hundred and Fifty Million Naira only being special and general damages suffered by the claimant and consequent upon:
(a) The defendant’s wrongful, unwarranted & unconstitutional discrimination against the claimant in the defendant’s practical application of the Collective Agreement and the terms & conditions of service otherwise applicable between the parties and as per the defendant’s letters to the applicant dated 19/8/2011 & 23/7/2012 as well as the defendant’s circular sent 23/7/2012 to all UBN Plc staff (due regards being had to the defendant’s treatment of the joint disciplinary case of one Mr Victor A. Bajomo, UBN Plc staff No. 1512227 and the claimant).
(b) The defendant’s attendant wrongful & unconstitutional infringement of the claimant’s inalienable right to acquire & own the moveable property of, and inherent in, his terminal benefits/severance package.
(c) The defendant’s attendant wrongful and unconstitutional violation of the claimant’s right to the dignity of his human person; and unwarranted & wrongful exposure of the claimant (& members of his family) to excruciating economic & social hardships, public ridicule/prejudice, loss of social welfare/wellbeing, inhuman tortures, degrading treatments and woeful loss of dignity of his human person in society.
(d) The defendant’s attendant wrongful & unconstitutional violation of the claimant’s Fundamental Right to Fair Hearing.
(e) The defendant’s attendant wrongful & unconstitutional violation of the claimant’s Fundamental Right to freedom of expression & freedom of personal industrial expression.
Particulars of Special & General Damages
(i) Severance Package/Terminal Benefits = N7,624,800.00
(ii) Legacy Fund (through pensions Fund) = N3,200,000.00
(iii) Litigation fees = N2,500,000.00
(iv) Emotional trauma, mental agony, public prejudice/ridicule, loss of social wellbeing/welfare, nuisance, frustrations, loss of industrial reputation
(v) Loss of Fair Hearing
(vi) Loss of the Dignity of my human person
(vii) Discrimination
(viii) Inhuman tortures & degrading treatment
(ix) Loss of moveable property
TOTAL = N850,000,000.00 ONLY
(2) An order of perpetual & mandatory Injunction compelling the defendant forthwith and unconditionally to tender a full and unreserved written apology to the claimant for the said discrimination and consequential inhuman tortures, public prejudices, degrading treatments meted to the claimant as well as the claimant’s loss of the dignity of his human person in society attendant thereupon (the said written apology shall also be publicized and circulated in the defendant’s internet websites).
(3) The sum of Two Million, Five Hundred Thousand Naira only which is the litigation costs incurred and contracted by the claimant and pertaining to the professional legal services fee of the claimant hereof.
(4) A declaration that the defendant’s dismissal of the claimant (in response to the claimant’s written appeal for review/reduction of disciplinary sanction of FINAL WARNING) is discriminatory and wrongful and in relation to the defendant’s FINAL WARNING disciplinary sanctions which was handed down to one MR. BAJOMO VICTOR ADEKUNLE (UBN PLC Staff No. 15122278, who had also appealed ‘for review/reduction of disciplinary sanction from WARNING) And for the same industrial mistake and pertaining to the same industrial negligence on duty said to have been jointly committed by them both in the same office and in the property department of the defendant, due regards being had to the parties’ industrial collective agreement and the terms & conditions of service applicable and their respective records of service.
(5) A declaration that the defendant’s administrative judgment, condemnation and punishment of the claimant for the alleged offence of fraud and criminal breach of trust at the point in time when the claimant had not been either duly investigated prosecuted and/or judicially tried and convicted of the alleged offence and just simply because the claimant had administratively appealed to the respondent for a review of the previously imposed disciplinary sanction of FINAL WARNING, is a wrongful violation of the claimant’s Fundamental Rights to freedom of personal expression and industrial self expression thereof.
(6) A declaration that the offence of FRAUD and fraudulent breach of trust alleged by the defendant against the claimant is a CRIMINAL ONE and for which the defendant has no constitutional competence to have pronounced the claimant guilty (without any due judicial trial) and, thereupon, to have invoked consequential disciplinary sanction of dismissal from employment on the applicant (as the defendant did); And, the further declaration, that the foregoing conduct by the defendant is a wrongful violation of the claimant’s Fundamental Right to FAIR HEARING thereto-pertaining and the dignity of his Human person & right to personal integrity in society.
(7) A declaration that at all times material to the defendant’s discriminatory “DISMISSAL” of the claimant from its employment, the claimant is entitled to the right to resign voluntarily along with full terminal benefits on the one hand or that the claimant is entitled to industrial termination/layoff and with severance packages/terminal benefits as a duly terminated staff (due regards being had to the obvious fact that the claimant’s services were no longer required by the respondent).
(8) A declaration that the defendant’s dismissal of the claimant from its employment (when and as it did) is a disguised and an unconstitutional deprivation of the claimant his right to voluntary resignation or retirement with full terminal benefits and/or his entitlement to industrial termination with severance package and terminal benefits otherwise contractually mandatorily due to the claimant under the parties’ collective agreement and terms and conditions of service applicable.
(9) A declaration that the defendant’s discriminatory dismissal of the claimant from its employment in the foregoing circumstances is an unconstitutional and a disguised deprivation of the claimant his right to the moveable property of his terminal benefits and severance package under the wrongful smokescreen of dismissal without terminal benefits/severance package.
(10) A declaration that consequent upon the defendant’s aforesaid discriminatory dismissal of the claimant from its employment, the claimant (and members of his family) have also been wrongfully held out to public prejudice, social insecurity, economic hardships, inhuman tortures and degrading treatments and loss of respect and the dignity of his person in society.
(11) A declaration that at all times material to this suit, Mrs. Olufunke Iyabo Osibodu was, and acted as, A STATUTORY APPOINTEE of (and by) the Central Bank of Nigeria (CBN) and the Nigeria Deposit Insurance Corporation (NDIC) and pursuant to the respective enabling statutory powers thereto-pertaining; and that the defendant is legally bound and liable to the claimant accordingly.
(12) A declaration that, further to the foregoing declarations, at all times material to this suit, the aforesaid Mrs. Olufunke Iyabo Osibodu and the rest of the statutory Appointee Directors/Board members of the defendant acted ultra vires their aforesaid enabling statutory powers and they also acted unconstitutionally and, respectively, to the wrongful prejudice of the claimant (when she/they acted against the claimant as per all the foregoing declarations and pleadings herein).
(13) An order of the Hon. Court setting aside as unconstitutional, invalid, incompetent and null and void the discriminatory and arbitrary dismissal of the claimant; and as a wrongful violation of the claimant’s constitutionally guaranteed right to the dignity of the claimant’s person and right to fair hearing and freedom from discrimination, and degrading treatment and inhuman tortures and also as an ultra vires exercise of the statutory powers conferred on the management of the defendant by the Central Bank of Nigeria/Nigeria Deposit Insurance Corporation thereto-pertaining and to the prejudice of the claimant’s aforesaid fundamental rights.
AND, Predicated on the grant of Relief No. 9 above
(14) An order of the Hon. Court mandating the defendant to forthwith and unconditionally issue to the claimant a written retraction of it’s aforesaid written discriminatory dismissal of the claimant from its employment (dated 23/07/2012); and to issue to the claimant, in lieu thereof, a letter of honourable layoff/termination of employment with full benefits and with effect from the date of its issue which shall be forthwith after the delivery of the judgment herein by the Hon. Court.
Or, in the Alternative
(15) An order of the Hon. Court mandating the defendant to allow the claimant to voluntarily retire from its service, and with his full terminal benefits & severance package thereto-pertaining duly paid to the claimant forthwith (and as Mr. Victor Adekunle Bajomo, UBN Staff No. 15122278 was allowed by the defendant to do and was paid).
Particulars of General & Special Damages
N/B:As per the claimant’s statement of claim and the claimant’s witness statement on oath and documents to be relied upon therein.
2. The defendant counterclaimed against the claimant for the following reliefs:
(a) An order of this Honourable Court directing the defendant to the counterclaim to pay the total sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira) to the counterclaimant being the cost of professional fees incurred to defend Suit No. NICN/LA/380/2013 as well as this suit.
(b) An order of this Honourable Court directing the defendant to the counterclaim to pay interest at the rate of 10 in respect of the judgment sum from the date of judgment until the entire sum is liquidated.
(c) Award of the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) against the defendant to the counterclaim as the cost of filing processes in this suit at the registry of this Honourable Court.
3. At the trial, the claimant testified on his own behalf as CW. His frontloaded documents were marked Exhibits 1 to 16, while the defendant’s frontloaded documents were marked as Exhibits D1 to D6. Parties were then told that they could in their final written addresses raise any issue as to the admissibility or evidential value of any of the documents. For the defendant, Yahaya Bello, a Sub-Manager with the defendant testified as DW. At the close of trial, parties filed and served their respective final written addresses. The defendant’s was filed on 30th January 2019, while the claimant’s was filed on 25th March 2019. The defendant’s reply on points of law was filed on 8th April 2019.
THE SUBMISSIONS OF THE DEFENDANT
4. To the defendant, the claimant was its former staff who was dismissed in 2012 for gross misconduct.That the claimant, while in the service of the defendant, was the defendant’s representative that led the defendant team in negotiating an offer made by the landlord of The Palms Shopping Complex, Lekki, Lagos, for a branch of the defendant in the Complex.That the defendant had indicated interest to rent a space for its branch in the complex.The landlord through its agent, Persian Properties Ltd, offered the defendant a space in the complex on the following terms:
(i) Area: 253.97 square meters
(ii) Rent/m2/year: US S840 (Net of all Taxes) i.e. N113,400.00/square meters
(iii) Payable: Flexible terms
(iv) Lease period 5 years
(v) Estimated services: S7.55/m2/months
(vi) Deposit: 3months’ rent on signature of head of terms
(vii) Service charge: S23,009 per annum
5. That upon negotiation, parties agreed on the following terms:
(i) Rent/m2/year: US S703.70 (Net of all Taxes) square meters i.e. N105,555.00/square meters
(ii) Lease period: 5 years effective from date of taking physical possession
(iii) Deposit: 3months’ rent on signature of head of terms
(iv) Service charge: S23,009 per annum
That based on the negotiation (led by the claimant), the defendant paid the sum of “N143,177,2019.00” to the landlord (through his agent) for a term of 5 (five) years. That the lease agreement commenced on 01/04/2006 and elapsed on 31/03/2011
6. That towards the expiration of the lease agreement, the landlord through his agent by a letter dated 25/08/2010, addressed the defendant, through the claimant, for a renewal of the lease agreement with new terms, with increment in rent of up to 175% which was in contrast to clause 6.1 of the lease agreement, which provides that:
premised on the tenant’s intention to pay the total rent due for the five year term thereby granted, in advance, the rent escalations applicable to other tenants of the Shopping Centre at the compound rate of 3 per annum shall not be applicable to the tenant’s premises. Provided it is hereby understood that the landlord reserves the right to apply the rent escalations upon the renewal of the terms hereby granted.
7. That the claimant upon receipt of the proposed lease agreement, failed in his capacity as a negotiator to negotiate with the agent on the high and inflated rent.Rather than negotiating the high/inflated rent, the claimant sent a mail dated 11/2/2011 to Mr Victor Bajomo, the Relief Assistant General Manager, recommending the renewal of the lease on the terms offered by the Landlord.That the claimant, however, deliberately and surreptitiously stated the rent by adding the sum of US$44,455.15c to it, which the said Assistant General Manager, failed to scrutinize before appending his signature to the proposed lease agreement.Upon discovery of the difference, the defendant sent a mail dated 21/06/2011 to the claimant (which was copied on other staff) requesting the claimant to explain the difference of US$44,445.15c in the approval expenditure form (G14) 01/2011 dated 09/03/2011which he recommended and the amount proposed by the agent of the landlord by its letter dated 25th August 2010.The claimant in his response via an email dated 21st June 2011 stated that the difference of US$44,445.15 was as a result of his mistake by punching the sum of US$44,457.14 twice.The finding of the defendant was to the effect that if the sum of US$44,457.14 was punched twice as claimed by the claimant, the difference would have been US$44,457.14 and not US$44,455.15.Based on the unsatisfactory explanation of the claimant to the defendant query, the defendant sanctioned the claimant with a FINAL WARNING. However, the claimant appealed the sanction of Final Warning, thereby re-opening the case for review and re-consideration. Upon a review of the case on appeal the defendant’s management imposed a sanction of dismissal in place of Final Warning.To the defendant, although the claimant claimed in his case before this Court that he was not the one that negotiated the lease, that it was one Mr Victor Bajomo that negotiated lease, when asked under cross-examination about who negotiated the lease the claimant stated contrary to his case before this Court that he did not know who negotiated the lease.
8. The defendant then submitted two issues for determination, namely:
(1) Whether the claimant’s dismissal by the defendant was unlawful
(2) Whether the claimant is entitled to the sum of N850,000,000.00 (Eight Hundred and Fifty Million Naira) from the defendant as special and general damages.
9. On issue (1), the defendant submitted that it is the law that an employer can summarily dismiss an employee who commits an act of gross misconduct. On what constitutes gross misconduct, the defendant referred toAzenabor v. Bayero University, Kano[2009] 17 NWLR (Pt. 1169) 115, where gross misconduct was defined asa grave and weighty conduct as to undermine the confidence that should exist between employee and employer and misconduct in this is what the employer makes it out to be. It could be series of disobedient actions, acts of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution. Also referred to is Abdulraheem v. Olufeagba[2006] 17 NWLR (Pt. 1008) 280 at 355,Uzondu v. UBN Plc[2009] 5 NWLR (Pt. 1133) 1 at 14,Eze v. Spring Bank Plc[2011] 18 NWLR (Pt.1278) 113,Savannah Bank (Nig.) Plc v. Fakokun[2002] 1NWLR (Pt.749) 560 andAjayi v. Texaco (Nig.) Ltd[1987] 3 NWLR (Pt.62) 577.
10. The defendant went on that it is the law that condonation occurs when an employee commits a misconduct which comes to the knowledge of the employer but no disciplinary action is taken resulting in a presumption that the employer has condoned the employee’s misconduct. That there is no specific legislation on this principle; however the courts have consistently applied it. Also, that where an employer discovers that an employee has conduct e.g. fraud for which the employee should be dismissed but the employer decides to impose a lesser punishment e.g. termination the employer is taken to have condoned the misconduct and the opportunity to dismiss for cause based on that misconduct is lost.That the claimant in the instance case was found guilty of dishonesty, breach of trust and fraud for which under the law and the Collective Agreement relied upon by the claimant, the claimant ought to have been dismissed but the defendant gave the claimant a lesser punishment of Final Warning. However, the defendant’s disciplinary system is such that where a worker who has been punished for misconduct is dissatisfied with the punishment meted to him, the worker has a right to appeal to the management of the defendant for a review of the case, which review may result in the sanction meted out being reduced, upheld or increased. That this implication of appealing a sanction was stated in paragraphs 28 and 29 of the statement of defence. That it must be noted that the defendant did not on its own re-visit and/or re-open the claimant’s case and the punishment meted to the claimant; it was the claimant who re-opened the case for reconsideration by his letter of appeal to the defendant dated 13th September 2011.
11. The defendant continued that the claimant’s allegation in paragraph 21(iv) of his reply to defence to the effect that: “…of all the treated disciplinary cases on the Defendant’s pleaded circular (dated 23/07/2012), only my own written appeal was discriminatorily meted with a higher/multiple/stiffer sanction by the Defendant and for the offence of daring to write an appeal for the reduction in disciplinary sanction initially meted to him on the “Management’s Decision on appeals arising from disciplinary sanctions” is untrue and incorrect. That Appellants Nos. 55, 56, 57, 58, and 60 of said circular were given higher/stiffer punishment/sanction. That the Management of defendant in determining an appeal by a staff has the power to award lesser punishment, higher punishment, or the same punishment that is being appealed. That in the first paragraph of the claimant’s letter of appeal the claimant stated that: “I wish to refer to your letter dated 19th August 2011 received on 12th September 2011 on the subject matter and hereby appeal for management reconsideration of the decision”. And in the last paragraph of the letter, the claimant stated that: “In the light of the above I humbly appeal that management should review and reconsider the sanction given to me”. To the defendant, a review and a reconsideration of matter imply a review and a reconsideration of the entire matter and does not mean a review or reconsideration to impose a lesser punishment; and that when a person applies for a review of his case he must be ready to abide by the outcome which may not necessarily be favourable. That the claimant is aware of this position and must abide by the outcome of the appeal he initiated.
12. On whether the claimant was given fair hearing, the claimant had alleged that he was not heard by the defendant on the allegations against him before he was dismissed, and that the defendant did not confront him with any allegation of gross misconduct or fraud or crime. To the defendant, the evidence before the Court particularlyExhibit D2 shows clearly that the claimant lied on oath when he stated in paragraph 38 of his witness deposition that prior to his summary dismissal by the defendant he was not given any opportunity to be heard in connection with any wrongdoing as Exhibit D2 shows that he was in fact issued a queryto explain how he arrived at the figure he presented to the defendant as rent for the renewal for lease and the claimant’s responded to the query. That fair hearing is about opportunity to be heard; and the authorities are clear on this, citingA. R. Momoh v. CBN[2007] 14 NWLR (Pt. 1055) 508 CA at 527, Benedict Hirki Joseph v. First Inland Bank Nig Plc[2009] LPELR-8854(CA), Gukas v. Jos International Breweries Ltd[1991] 6 NWLR (Pt. 199) 614, Imonikhe v. Unity Bank Plc[2011] LPELR-1503(SC); (2011) 12 NWLR (Pt. 1262) 624 SC, Avre v. NIPOST[2014] LPELR-22629(CA), Kayode Agbolade v. Ecobank Nig. Plc, unreported Suit No. NICN/LA/34/2012, the judgment of which was delivered on 30th October 2013, Mr. Adewale Aina v. Wema Bank Plc. &anor, unreported Suit No. NICN/LA/162/2012, the judgment of which was delivered on 28th January, 2016 and Mrs Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported, Suit No. NICN/LA/40/2012, the judgment of which was delivered on 7th April 2016.That the fair hearing requirement does not insist on oral testimonies so long as the employee had the opportunity to explain himself/herself by way of a query and reply, citingNew Nigeria Bank Ltd v. G. O. Oniovosa[1995] 9 NWLR (Pt. 419) 327 and Isong Udofia v. Industrial Training Governing Council [2001] 4 NWLR (Pt. 703) 281. That the common feature running through all these cases is that the exact nature of the infraction(s), which the employee is expected to answer to, was disclosed to the employee. Also referred to was the concurring judgment of His Lordship, Hon. Justice Rhodes-Vivour, JSC in Imonikhe v. Unity Bank Plc[2011] 12 NWLR (Pt. 1262) 624 SC to the effect that: “Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice”. That in the instant case, the claimant was issued with a query, which he answered; and thatthis opportunity is good enough to satisfy the requirement of fair hearing as stated by the Supreme Court in Imonikhe v. Unity Bank Plc (supra). Accordingly, that the defendant gave the claimant fair hearing, urging the Court to discountenance the claimant’s contention that he was not given fair hearing by the defendant before his dismissal.
13. For issue (2) i.e. whether the claimant is entitled to he N850Million Naira he claims asspecial and general damages, the particulars of which were given as per relief (i) and paragraph 50 of the amended statement of facts, the defendant submitted that the claimant’s claim for Severance Package/Terminal Benefits in the sum of N7,624,800.00, Legacy Fund (through pensions Fund) in the sum of N3,200,000.00 and Litigation fees in the sum of N2,500,000.00 are claims for special damages and as such aside from establishing his right to the claims the claimant must also particularize the claim and lead evidence in strict proof of the claim as required by law for a claim for special damages. That how the claimant arrived at the various stated in the claim was not stated.That the law requires that a claim for special damages must be strictly proved, citingAbeh v. Jabusco (Nig.) Ltd[2008] 3 NWLR (Pt. 1075) 526,Ban-Nelson (Nig.) Ltd v. Moro L. G., Kwara State[2007] 8 NWLR (Pt. 1037) 623 andNzeribe v. Dave Eng. Co. Ltd[1994] 8 NWLR (Pt. 367)124. To the defendant, the claimant’s claim for Severance Package/Terminal Benefits in the sum of N7,624,800.00, Legacy Fund (through pensions Fund) in the sum of N3,200,000.00 must be based or derived from the law or terms of the contract service between him and the defendant. That a claim to any entitlement cannot be based on the imagination or conjecture of the claimant. That one problem with theseclaimant’sclaims is that the basis of the claims and how the claimant computed or arrived at the amounts claimed were not pleaded or establish by any evidence at trial by the claimant as required by law;how the claimant came about the claims is unknown. Whether the claim is based on the contract of service between the parties, Staff Handbook, a Collective Agreement or even the law remains unknown.That the claimant did not place any evidence before the Court to establish his right to the said claims. There is no contractual document, conditions of service, collective agreement or any statutory provision placed before the Court that entitles the claimant to thesaid claims; citing Ngilari v. Mothercat Ltd[1993] 3 NWLR (Pt. 636) 626 SC on the need to particularize special damages and give the defendant access to the facts which make such calculation possible.That the Court does not act on conjuncture and speculations but on proven facts.
14. That the claimant’s case is a claim for special damages, which must be claimed specially and proved strictly. The it settled law that a claim for special damages cannot succeed even when it is admitted, citing NNPC v. Clifco Nigeria Ltd[2011] 10 NWLR (Pt. 1255) 209. And that Mr Mohammed Dungus &ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39 held that the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if an entitlement is shown. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer. Secondly, the employee who claims must show how he came by the quantum of the sums claimed. That this Court also cautioned that it may be fatal if, in proving an entitlement, and even if the instrument is referred to, the employee does not indicate the clause, section, article or paragraph that grants the entitlement claimed given that the employee should not expect that it is the Court that will shop for the relevant article that substantiates the claim prayed for.
15. To the defendant, this is the context within which the claimant can succeed in the present case. That the claimant failed to establish his right to Severance Package/Terminal Benefits in the sum of N7,624,800.00, and Legacy Fund (through pensions Fund) in the sum of N3,200,000.00 from the defendant and also failed to lead strict evidence to prove his claim for special damages as required by law. That aside from the failure of the claimant to establish his right to the Severance Package/Terminal Benefits and Legacy Fund (through pensions Fund), how the claimant arrived at the sums claimed is fret with uncertainty and this Court cannot act on uncertainty because the very nature of a claim for special damages is one that there must be certainty in how the figure was arrived at, urging the Court to dismiss the claim.
16. Furthermore, that the claimant did not state how he arrived at the sum of N2,500,000.00 as Litigation fees. In fact,that there is nothing before this Court to justify or show how the claimant’s Litigation fees accumulated to N2,500,000.00.Therefore, the claim must necessarily fail.That this Court in Ogbodu v. Global Fleet Oil & Gas Ltd. &anor[2015] 55 NLLR (Pt. 187) 201, relying on Guinness Nigeria Plc. v. Nwoke[2000] 12 NWLR (Pt. 689) 135 at 150, not only held that it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party, but that the claimant did not state how she arrived at the sum of N12,000,000 as the cost of litigation; thus rejecting the claim for cost of action. The defendant then urged the Court to refuse the claimant’s claim for litigation fees.
17. That the claimant’s claim for emotional trauma and mental agony were not proved by any scintilla of credible evidence at trial. That it is instructive to note that there was no medical evidence to show how the claimant’s health was influenced (if any) as a result of the dismissal or that the trauma or agony was caused by the dismissal of his appointment. That the claimant’s claim for public prejudice/ridicule, loss of social wellbeing/welfare, nuisance, frustrations, loss of fair hearing, loss of the dignity of his human person, discrimination, inhuman torture and degrading treatment, loss of moveable property are either not supported by the averments in the pleadings or the claimant failed to place any evidence before the Court at trial to establish the claims. That although some of the claims are strange and unknown to our law like a claim for loss of fair hearing, the law is that general damages is not awarded in actions between master and servant. That it is settled law that an employee cannot be awarded general damages in an action between him and his master, citingPZ & Co. Ltd v. Ogedengbe[1972] All NLR 206 at 210 andPioneer Milling Co. Ltd v. Nansing[2003] FWLR (Pt. 151) 1820 at 1827-1828; as such,the claimant’s claim for general damages must fail.
18. The claimant made issue of an alleged relationship between on Mr Victor Adekunle Bajomo and one Mrs Olufunke Iyabo Osibodu, which relationship the claimant alleged resulted in the claimant being discriminated against by the defendant. To the defendant, other than the bare allegations which was denied by the defendant in its pleadings, the claimant failed to lead evidence at the trial to establish the allegation. In conclusion, the defendant urged the Court to dismiss the claimant’s claim.
THE SUBMISSIONS OF THE CLAIMANT
19. In a nutshell, the claimant’s case is that, as an employee of the defendant, he was subjected to an unwarranted and wrongful industrial victimization & discrimination, wrongful dismissal, and generally, unfair treatment by the defendant, it’s agents, servants and privies. The claimant itemized (what he called particulars of) the industrial wrongs as:
• Unfair treatment, false accusation and set up.
• Discrimination and wrongful breach of freedom of expression.
• Industrial maltreatment, humiliation and indignities.
• Double/multiple sanctions for one alleged misconduct.
• Wrongful breach of terms and conditions governing his employment by the defendant.
• Dismissal for a trump up allegation of crime (fraud) and for conviction of the claimant at all by any competent court of law (the said allegation of crime being an after-thought).
• Dismissal of the claimant for merely writing an appeal for review of disciplinary sanction.
• Complete and wrongful destruction of the claimant’s professional career (as a banker).
• Wanton and wrongful destruction and stigmatization of the claimant’s industrial good reputation (and attendant/consequential permanent ostracism from alternative employment and from public trust).
• Unwarranted derivation and wrongful disentitlement of otherwise guaranteed wages, terminal benefits and meritorious commendations, etc.
20. The claimant then submitted four issues for determination, namely:
(i) Whether the defendant’s witness statement on oath (sworn to on 15/10/2015 by Mr Yahaya Bello)isa competent process of court; and sufficient to warrant it being acted upon accordingly by the Hon. Court.
(ii) Whether the claimant has, evidentially, proved his claims and sufficient in law to entitle him to the judgment of the Hon. Court in his favour and as per his amended writ of summons &amended statement of claim herein.
(iii) Whether the claimant has established unwarranted &unfair treatment by the defendant/counterclaimant and sufficient to warrant the intervention of this Hon. Court in terms of the grant of all or any of the reliefs sought by the claimant (or any other equitable industrial judicial relief in the circumstances).
(iv) Whether the defendant/counterclaimant’s counterclaim herein should be dismissed and with substantial costs.
21. On issue (i), the claimant submitted that for the purpose of ascertaining the competence and legal validity (and/or probative value) of the entire evidence led by the defendant/counterclaimant, it is submitted that the sole witness for the defendant (i.e. Mr. Yahaya Bello) stated on oath and under cross-examination, inter alia, that he is not the one who drafted the deposition (i.e. the defendant’s witness statement on oath which he had adopted as his evidence-in-chief herein) but he read through it before signing it;thereby throwing up for consideration two issues of law: its competence; and the issue of documentary hearsay.
22. On the issue of competence of the sworn deposition of DW, the claimant submitted that DW’s entire statement on oath is an incompetent process of court; and for non-compliance with the mandatory provisions of section 115(3) and (4) of the Evidence Act 2011. That DW did not state in the said affidavit deposition (in his statement on oath) the fact that the facts therein-deposed to were related to him or drafted for him to sign, respectively, by some person(s) else, the name(s) of the person(s) who did so and the date, place and time of so doing; and the fact that he verily believed the said information to be true. Accordingly, that this Court has no jurisdiction to consider an incompetent process of court.
23. Regarding the issues of documentary hearsay, the claimant submitted that under cross-examination, DW admitted that he is not the author or source of knowledge of his said deposition; and that this clothes the said witness statement on oath with the legal status of documentary hearsay evidence and rendered same inadmissible consequentially, citing sections 112 and 115(1) and (3) of the Evidence Act 2011, Buhari v. Obasanjo[2005] 2 NWLR (Pt. 910) 241;[2006] EPR 469, Yusuf v. Obasanjo [2005] 18 NWLR (Pt. 956) 96 and Osuoha v. The State [2010] 16 NWLR (Pt. 1219) 364 at 372 – 373. That the corollary to the foregoing submission, the claimant observed that the person(s) which logo appeared at the foot of each of the pages of DW’s statement on oath (and whether as the drafters thereof or otherwise) is F. O. FAGBOHUNGBE & CO, LEGAL PRACTITIONERS; and which said nomenclatures are neither juristic persons in law nor are they the names of any legal practitioner called to Nigerian bar by the Supreme Court of Nigeria according to law,and contrary to sections 2 and 4 of the Legal Practitioners Act and Okafor v. Nweke[2007] All FWLR (Pt. 366) 1016 – 1022. That the end result if the defendant has no valid statement on oath; which means that the defendant’s pleadings are not supported by any evidence and so must be deemed abandoned, citing Kaydee Ventures Ltd v. Minister of FCT[2010] 41.2 NSCQR 914 andMartkem v. Kent [2005] 22 NSCQR 1041. That the defendant/counterclaimant is, alternatively, thereby left with a sham statement on oath, deposed to by a person who, self-admittedly, did not participate in its comprehension (and who, personally, was not a party to its articulation and source of knowledge) and, therefore, is consequentially devoid of any credibility and evidential probative value whatsoever. A suborned witness who, as part of his employment duties, came to the Court to testify to what he personally knows nothing about. No wonder his evidence under cross-examination turned out to be a comprehensive self-contradiction of virtually all of the defendant’s statement of defence andcounterclaim.
24. In connection herewith, that all the computer-generated exhibits and emails tendered by the defendant (and admitted as exhibits) which are not backed up with the mandatory declaration or certificate on oath are liable to be (and should be expunged) from the records of the Court. In conclusion, the claimant urged the Court to strike out or to expunge from the records of the Court DW’switness statement on oath as an incompetent process, deem both the defendant’s statement of defence and counterclaim as abandoned, the latter not prosecuted and so unproved, deem the claimant’s suit as undefended,and deem the CW’s evidence/statement on oath as uncontroverted, unchallenged, undisputed and admitted by the defendant.
25. Issue (ii) is whether the claimant has proved his case. The claimant conceded that he who asserts must prove, citing sections 131, 132, 133 and 134 of the Evidence Act 2011, Pam v. Gadi[2003] 8 FR,Abubakar v. Joseph[2008] 34 NSCQR 1200, Piaro v. Tenalo [2003] 1 LC 384,UBN Ltd v. Ozigi[1994] 3 NWLR (Pt. 333) 385 at 393, Maeze v. The State [2005] 1 FR 186 and Adekeye v. Adeshina [2010] 44 NSCQR 490. That to be entitled to the judgment of the Court and either pursuant to the substantive suit or the counterclaim, the respective parties are liable to evidentially prove same. That the law is long settled that the submission in the address of counsel does not constitute evidence, citing Wema Bank v. Anisere [2003] 8 FR 93. That the Court should accordingly discountenance and jettison all submissions contained in the defendant/counterclaimant’s final address not supported by any evidence led by the defendant during trial. Furthermore, that the claimant has discharged the evidential burden of proof placed on him as the claimant by sections 131-134 of the Evidence Act; and that, it is the defendant who has failed to rebut the claimant’s case and/or to prove its defence and counterclaim, citing Kwara v. Lagi Innocent 7 EPR 563 and UBN Ltd v. Ozigi[1994] 3 NWLR (Pt. 333) 385.
26. The claimant continued that by the statutory provisions of sections 91, 154 and 167(c) and (d) of the Evidence Act 2011, the defendants are liable to the statutory presumptions of the Court against them and as thereby stipulated, due regard being had to the claimant’s multiple statutory not to produce, citing Musa Seidu v. State[1980] 4 CA (incomplete citation). That in asking theCourt to make findings of facts in its favour, the defendant thereby has not approached the Court with clean hands,having willfully withheld from the Court all the documentary evidence which should have assisted the Court in making appropriate findings of facts and ease the task of justice dispensation (and to that extent, left the Court groping in the dark thereto-pertaining). That the defendants should not expect, and is in law not entitled to, the favours of the Court in all issues of judicial facts finding. That having chosen to withhold the material documentary evidence from the Court and decided to depend on the documentary hearsay evidence of Mr Yahaya Bello (i.e. the defendants’ sole witness) who did not personally participate in articulating the defendant’s witness statement on oath and/or personally witness any of the transactions in issue between the parties, the defendant cannot in law (and should not in equity) but depend only on the hearsay evidence to persecute the fefence of its case, citing Buhari v. Obasanjo[2006] 2 EPR 469. That the Court should find and to hold that the defendant’s sole witness, having stated positively under cross-examination to the effect that in Union Bank Plc administrative transactions are donedocumentarily (not orally),all pleadings, evidence and allegations against the claimant and as per the defendant’s statement of defence &counterclaim (as well as DW’s witness statement on oath) which are not backed up with any documentary evidence &records of transaction, are all unfounded allegations; and, more particularly, against the background of the multiple statutory notice to produce which were issued and served on the defendant (but to no avail) and the statutory presumption of withholding evidence, citing sections 91,97,98,154 and 167(c) and (d) of the Evidence Act 2011, Musa Seidu v. State (1980) 4CA (incomplete citation) andYusuf v. Obasanjo[2005] 18 NWLR (Pt. 956) 96 at 118 -119.
27. The claimant then urged the Court to invoke the statutory presumption of withholding evidence against the defendant; and that DW, having admitted under cross-examination to the effect that Mrs Olufunke Iyabo Osibodu and Mr Victor Bajomo are both still alive, the defendant deliberately kept them away from giving evidence in this case because if they were made witnesses, their evidence could have been unfavourable to the defendant’s case; more particularly, in the light of all pleadings and evidence by the claimant touching on the personal role, relationship and collaboration of Mrs Olufunke Iyabo Osibodu and Mr Victor Bajumo in the wrongful dismissal of the claimant.
28. The claimant went on that since, going by DW’s evidence under oath, before the dismissal of the claimant, that the defendant did not condone the fraud, it follows that the claimant was thereby dismissed, not for the same alleged fraud for which he had already been sanctioned/disciplined by the defendant, but for daring to write an appeal to the management of the defendant for a review of the first disciplinary sanction;and contrary to the DW’s further evidence under cross-examination that an appeal for review of disciplinary sanction is not an offence. In effect,that the claimant was arbitrarily and discriminatorily dismissed for committing no offence contrary to the operative terms and conditions of employment (Exhibit 15), sections 1(1) and (3), 34, 36(1) and (4), 39, 42, 43 and 44 of the 1999 Constitution and UBN Ltd v. Ozigi[1994] 3 NWLR (Pt. 33) 385 at 389 – 393.
29. That DW’s evidence under cross-examination constitutes a monumental self-contradiction and manifest abdication of the same said DW’s earlier statement on oath (dated 15/10/2015); and to the ultimate effect that the defendant now has before the Court two sets of evidence both given under oath by the same witness; and both are completely inconsistent and conflicting with each other and contradictory of each other. The defendant proceeded to give what he terms “particulars of falsehoods inconsistency/self-contradiction”. To the claimant, whereas under cross-examination, DW stated to the effect that in the defendant administrative matters are not done orally, yet the defendant did not produce the documents to show: the alleged fraud committed by the claimant; the alleged investigation of the claimant and Mr Victor Bajomo; the alleged proceedings, report, names and membership of the alleged committee of the defendant which carried out the alleged investigation; how the bank allegedly detected the alleged fraud; the pecuniary loss suffered by the defendant for the alleged fraud (if any); document to show that the claimant is head of negotiation team and/or that he ever acted as such for the defendant in relation to any transaction that forms part of the case of action in this suit; a single invoice/receipt/bank teller, cheque or electronic printout or statement of bank account to show that the defendant has been paying or has paid a single dime to Messrs Felix Fagbohungbe & Co as professional legal services fee and either for this suit and/or for the already long concluded Suit No. NICN/LA/380/2013 (and as per the defendant’s counterclaim – DW even testifying under cross-examination that he does not know how much the defendant paid its lawyer for the said suits); andrecords to show that the claimant appeared and/or testified before any facts-finding, administrative or judicial committee either in self-defence (or otherwise) to answer to the allegation of gross misconduct or crime of fraud.
30. The claimant then urged the Courtto completely discountenance the defendant’s allegation of fraud against the claimant on the grounds that he was not investigated by the Police nor prosecuted nor convicted of the alleged fraud by any competent court of law; the defendant does not have any statutory or constitutional warrant or mandate to administratively convict or to declare the claimant as a convict for the alleged fraud (as the defendant did) and, thereupon, to proceed against the claimant by dismissing him from employment (as the defendant did); no document or record was canvassed by the defendant to show that the claimant appeared and/or testified before any person or facts-finding, administrative or judicial committee or panel either in self-defence (or otherwise) to answer or to cross-examine anybody in connection with or pertaining to the alleged gross misconduct or fraud;and no record or document which show that the defendant suffered any loss or was deprived of a single dime as a result of the alleged gross misconduct or fraud allegedly committed by the claimant, citing sections 1(1) and (3), 36(1) and (4), 34, 39(1) and 42 of the 1999 Constitution; sections 4 and 12 of the Police Act; sections 56, 57 and Part 9 of the Administration of Criminal Justice Law of Lagos State 2015; sections 87,88 and Part 12 of the Administration of Criminal Justice Act 2015; P.C. Imalome v. WAEC[1992] 9 NWLR (Pt. 265) 303 at 305; FCSC v. J.O. Laoye[1989]2 NWLR (Pt. 106) 652 at 662 and 679-690; F/Lt. Otu Edet v. Chief of Air Staff &anor[1994] 2 NWLR (Pt. 324) 41; John Utulu v. Nig. Airways Ltd[1983] 1 CA (incomplete citation); State Civil Service Commission &anor v. A. I. Buzugbe[1984] 7 SC 19 at 23-25; Dr. B. O. Chukwuma v. Shell Petroleum Development Company of Nigeria Ltd[1993] 4 NWLR (Pt. 289) 512 at 517, 518, 520 and 521; Dongtoe v. Civil Service Commission of Plateau State[1995] 7 NWLR (Pt. 408) 448 at 450 – 353; Garba v. Unimaid[1989] 1 NWLR (Pt. 18) 550 at 584; Mcfoy v. UAC Ltd[1961] 3 All ER 1169; [1962] AC 152; and Hakido Kpema v. The State[1986] 2 SC 41 at 48, 62, 75 and 76.
31. The claimant conceded that a court cannot impose a servant on an unwilling master (Osisanya v. Afribank29 NSCQR 301),and that the law does not require an employer to give any reason for termination of employment or dismissal of an employee, but that the law is also to the effect that the Court is entitled to be (and must be) satisfied with such reason (if given by the employer), citing Shell Petroleum Dev. Co. Ltdv. Chief Victor Sunday Olarewaju[2008] LPELR-3046. The claimant then urged the Court to discountenance the defendant’s submissions, and find and to hold that the defendant’s reasons for dismissing the claimant are unfounded, baseless, evidentially unproven, incompetent, ultra vires its corporate powers, statute-barred and constitutes unconstitutional violation of the claimant’s fundamental rights to fair hearing, to freedom of expression, to the dignity of the claimant’s person and to economic earnings/wages and investment (as per the disentitled/deprived accrued retirement/voluntary resignation entitlements) and terminal benefits otherwise guaranteed by the terms andconditions of service contractually operative.
32. Issue (iii) is whether the claimant has established unwarranted and unfair treatment by the defendant as to entitle the claimant to the grant of all or any of the reliefs he seeks. To the claimant, one fact which the defendant could not dispute is the fact that if the claimant was of the self-perception that he had been fairly treated by the defendant, he could, naturally, not come to Court for judicial redress. That this suit is, therefore, all about unfair treatment (or otherwise) of the claimant by the defendant (and whether or not so expressly pleaded). That from the claimant’s experience, the foregoing horrendous tree of unfair treatment manifested itself through several branches and bitter fruits, some of which include unwarranted victimization, discrimination double punishment for one alleged (and non-existent) offence, false accusations, scapegoatism, sacrificial lamb to heal the ailing bank (defendant), wrongful infraction of the constitutional fundamental rights to freedom of self-expression (by way of appeal for review of sanction); and the dignity of the claimant’s human person (i.e. “unflicted” by the consequential public ridicule, public bias, public odium, economic and social deprivation, loss of social status, industrial frustration, tortures, emotional agony and trauma) as well as freedom from discrimination and etc. That these bitter fruits of unfair treatment are inexhaustible in the industrial world but in this particular case, the claimant was subjected to unfair treatment, unjust treatment and unfair labour practice in the following evidentially proven circumstances which were meted to him by the defendant:
(i)When there is unwarranted stigmatization or unwarranted labelling of the claimant i.e. as an employee/staff with the bad name of having committed fraud (so as to get rid of him).
(ii)When there is wrongful discrimination in applying the labour law or Constitution thereto-pertaining.
(iii)When there is wrongful double standard in operating and upholding the same terms and conditions of employment binding the same employees and employer by the defendant and to the prejudice of one of the claimant, unfair treatment is thereby, ipso facto, occasioned or unleashed on the claimant (employee) who is thereby prejudiced.
(iv)When the claimant (as an employee/staff) is unwarrantedly and wrongfully denied his fundamental right to fair hearing in the determination of the question of his industrial liability to an industrial discipline/sanction (before the sanction is invoked against him, the said employee), it is, per se, unfair treatment.
(v) When the claimant (as an employee/staff) is unwarrantedly and wrongfully denied of his terminal benefits and/or right to voluntary resignation (in order, calculatedly, to prevent him, the said staff, from being paid the said terminal benefits); that action by the employer is, per se, an unfair treatment.
(vi) When there is a wrongful abdication of the disciplinary procedure stipulated by the terms and conditions of employment in favour of one employee i.e. Mr Victor Bajomo and with the claimant (i.e. as the other employee) being used as a sacrificial lamb, smokescreen (cover-up) scapegoat for the alleged fraud or misconduct, and as an atonement for the exculpated/extricated staff (i.e. Mr Victor Bajomo) thereby manifested per se, is, unfair treatment of the maltreated staff.
(vii)When the claimant’s (i.e. employee’s) industrial good name, labour marketability (employability) professional (or career) reputation, and employment records is permanently dented and condemned by the unwarranted label/stigma of “dismissal” from (former) employment (for all future purposes, alternative employment inclusive) and consequent upon an unproven (or trump up) allegation of fraud or upon any or all of the foregoing incidents of unfair treatment, it would, also, amount to over flogging the fact that wrongful unfair treatment has thereby, and per se, been meted to the adversely affected employee.
(viii)When an employee is arbitrarily (or otherwise) dismissed just for exercising his lawfully guaranteed right/entitlement to appeal for review of disciplinary sanction already meted to him, it is indeed unfair treatment.
(ix)When the industrial and social dignity of the claimant (i.e. as an employee) as a responsibly and gainfully employed person in society (and the socioeconomic fortunes and wellbeing and welfare of all his beneficiaries wife and children attendant thereupon) are completely heartlessly and callously rubbished and destroyed (with attending hardships, sorrows, social stigma and public prejudice); consequential upon an unwarranted and unfair treatment, it goes without saying that the adversely affected employee has, per se, suffered unfair treatment.
(x)And when, consequential upon all or any of the foregoing incidents of unfair treatment, the claimant has wrongfully suffered unwarranted victimization, humiliation and indignity in society, economic deprivation and torture, industrial stigmatization, injustice and deprivation of terminal benefits, unfair treatment has thereby been inflicted on him by the defendant, contrary to sections 1(1) and (3), 34(1), 36(1), (4) and (6), 39(1) and 44(1) of the 1999 Constitution, equity and international labour best practices.
That all of these warrant the intervention of the Court (and entitle the Court to intervene) in terms of the grant of the claims/reliefs sought by the claimant, citing in the process Engineering Enterprise of Niger Contractor Co. of Ni v. AG, Kaduna State [1987] 2 NWLR (Pt. 57) 381 at 398.
33. The claimant continued that given the wrongful industrial discrimination, oppression and humiliation, the Court should find and hold that the claimant in his pleadings did satisfy the requirement of Order 14 Rule 1(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017) as the defendant did not cross-examine the claimant on any of the paragraphs of the claimant’s pleadings (and related witness statement on oath), which canvassed discrimination and particulars thereof, citing Omoregbeev. D. P. Lawani[1980] 3/4 SC 108 at 117,Kaydee Ventures Ltd v. Minister of FCT[2010] 41.2 NSCQR 914 andA. C. Ubav. UBN Plc[1995] 7 NWLR (Pt. 405) 72 at 75. That given the evidence of DW under cross-examination, the Court should find and hold as discredited beyond any evidential probative value the entirety of the respective paragraphs of the defendant’s pleadings and witness statement on oath which are contrary to, or contradictory of, or inconsistent with, or not supported or sustainable by, respectively, any of the admissions of DW under cross-examination by DW.
34. The claimant went on that whereas for the same alleged offence or misconduct, Mr Victor Bajomo (who is the boss of the claimant) was given final warning, permitted to appeal for review of said sanction and then allowed to resign (with full terminal benefits) and thereafter he was reabsorbed as a contract staff on the same position (Head of Property Department) by the defendant, the claimant (who is subordinate to Victor Bajomo) was given final warning and when he appealed for review of the sanction (which appeal, per se, is not an offence) he was dismissed by the defendant, and striped of all terminal benefits (inclusive of labeling/stigmatizing him as a fraudulent staff for all records purposes). The claimant then asked:what else can be called discrimination and unfair treatment (if not this one)? The claimant then referred to Duru v. Skye Bank Plc[2015] 59 NLLR (Pt. 207) 608 at 687-704, Obazuaye v. First Bank of Nigeria Plc [2013] 38 NLLR (Pt. 116) 28, Omoudu v. Obayan&ors[2016] 65 NLLR (Pt. 231) 407 at 419 – 439 and Milan Industries Ltd v. Sharma[2016][2015] 65 NLLR (Pt. 231) 375 at 380 – 387.
35. On award of damages, the claimant adopted and relied on the principles of law stated inDuru v. Skye Bank Plc (supra) and Omoudu v. Obayan &ors(supra). The claimant then contended that the conduct of the defendant in discriminatorily dismissing him on the false of trump up allegation of fraud and unfounded gross misconduct and/or breach of corporate trust, etc and as an ethnic/tribal sacrificial lamb to heal the ailing defendant bank (but under the disguise/smokescreen/motive/clandestine, scheme that the claimant, a non-Yoruba, does not rise (or is not eventually promoted) to the Head of the Property Department of the defendant bank of which the incumbent, Mr Victor Bajomo, was soon due for retirement is a gross unjust labour practice, unfair labour practice, unfair labour treatment, contrary to international best practice and which said conduct has wrongfully violated the claimant’s right to employment reputation, happiness, feelings and the otherwise guaranteed alternative employment opportunities. That he suffered consequential humiliation, discrimination, public prejudice, permanent ostracism from alternative employment in the banking sector and other public/private sectors; for which he is entitled to be awarded all the reliefs sought notwithstanding the old common law rules.
36. Issue (iv) is whether the defendant/counterclaimant’s counterclaim should be dismissed and with substantial costs.The claimant adopted and relied on his earlier submissions and, against that backgroundsubmitted that the counterclaim is liable to be dismissed and with substantial costs in faovur of the claimant as it is unwarranted, unfounded, lacking in merits and an oppressive and mala fide judicial gold-digging venture.For the avoidance of doubt, that DW during cross-examination did corroborate the claimant’s evidence that there is a clientele retainership relationship between the defendant and its counsel, Chief F. O. Fagbohungbe, SAN, but omitted to supply details thereof and thereby left the Court with the unchallenged evidence of the details of said retainership as stated by the claimant’s witness statement on oath, urging the Court to accept the said evidence. Furthermore, that the supposed Bills of Charges of the defendant’s counsel (which was tendered and admitted as exhibits) do not bear the stamp and seal of the Legal Practitioner who franked/signed same, thus rendering its admissibility incompetent and/or the probative value thereof discredited to the point of a non-issue, urging the Court to expunge the said exhibits, citing Buhari v. Obasanjo 2 EPR 404 and Brossette Nig. Ltd v. M/S Ola Ilemobola Ltd[2001] 30 NSCQR 1169.
37. It is the further submission of the claimant that in the conduct of their trial the defendants did not cross-examine the claimant pertaining to all the material paragraphs of the claimant’s 1st witness’ respective statements on oath (which were adopted by same as his evidence in chief during the trial). That the law is that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness, citing Gaji v. Paye [2003] 14 NSCQR 616. That the Court should also note the absence of any reply by the defendant to the claimant’s defence to counterclaim in this suit, which then entitles the Court to deem the claimant’s said statement of defence to counterclaim (and the claimant’s witness’evidence on oath thereupon) as undefended, undisputed, uncontroverted and admitted, citing Lewis & Peat (NRI) Ltd v. Akhimien [1976] 7SC 157 at 163 -167 and Daggash v. Bulama [2004] 14 NWLR (Pt. 892) 144.
38. Additionally, that the defendant/counterclaimants counterclaim is certainly frivolous, vexatious, oppressive and was canvassed in utmost bad faith. That it is recalled that in his unchallenged evidence-in-chief the claimant stated, inter alia, that, the defendant was intent on diverting his terminal benefits to fund the ailing Union Bank, the defendant was also engaged in double punishment of the claimant for an alleged (but unfounded) offence of fraud, the defendant also dismissed the claimant for daring to write an appeal for review of disciplinary sanction (a conduct which was self-admitted by DW under cross-examination, not to be an offence), the defendant’s counterclaim is another harassment and attempt at judicial gold-digging extortion from the claimant as well as wrongful stampeding of the judicial process and a gross abuse of the process of this Court, citing Amaefula v. The State [1988] 2 NWLR (Pt. 75) 156 at 177, Saraki v. Kotoye[1992] 9 NWLR (Pt. 2644) 156 at 188 -189 and Arubo v. Aiyeleru[1993] 3 NWLR (Pt. 280) 126 at 142. In conclusion, the claimant urged the Court to enter judgment in his favour and dismiss the counterclaim with substantial cost of N1,500,000.00 only.
THE DEFENDANT’S REPLY ON POINTS OF LAW
39. The defendant reacted on points of law. On the issue of DW not drafting his sworn deposition, the defendant submitted that a draft is a first version, a preliminary sketch, which does not qualify as a deposition. That a deposition properly so called is a sworn testimony and not a draft document. That what is before the Court is a sworn written deposition of DW having on the face of it been sworn to before a Commissioner of Oaths, citing Maraya Plastics Ind. Ltd v. Inland Bank (Nig.) Olu [2002] 7 NWLR (Pt. 765) 109 at 120. That once a person signs a document or places his mark on it, he owns up the contents thereof, and that means he vows to (or affirms) understanding of the content of what he signed or placed his mark on, citing Tsalibawa v. Habiba [1991] 2 NWLR (Pt. 174) 461 at 480 and Yadis (Nig.) Ltd v. Great Nig. Ins. Co. Ltd [2000] 11 NWLR (Pt. 725) 529. That in paragraphs 1 and 2 of the disposition, DW stated the source of his facts. That he stated that he works in Property Department of the defendant where the transactions which are the subject matter of this suit occurred and that by virtue of his duties and from the records of the defendant, he is conversant with the facts of this case. That he further confirmed under cross-examination that all he knows of the case is contained in the deposition. That there is nothing wrong with a person drafting a document for another; and it was not in evidence that the alleged draft was prepared without DW’s input or instructions.
40. On the submission of the claimant that DW’s evidence is hearsay, the defendant submitted that evidence that might otherwise be regarded as hearsay is admissible under principle of corporate personality, citing Ishola v. Societe Generale Bank [1997] 2 NWLR (Pt. 488) 405. The defendant concluded by urging the Court to dismiss the claimant’s case in its entirety.
COURT’S DECISION
41. After a careful consideration of the processes filed and the submissions of the parties, I must remark on the verbose, often repetitive, boring (especially in the use of archaic phrases such as “thereto-pertaining”, “aforesaid”, “aforestated”, etc) and incomprehensible submissions of the claimant in his final written address, with case law authorities cited that were repetitive or often bore little of no relevance to the point made. I had to strain and put in extra effort to make meaning out of the claimant’s submission. Advocacy is built on simple syntax, not convoluted narratives. Pray, how can the defendant’s reasons for dismissing the claimant be said to be statute-barred? This is the argument of the claimant in paragraph 5.19 of his written address. An act may be statute-barred. But a reason? I just do not know. Sometimes the sentences were long and windy, losing in the process the significance of the point sought to make. Imagine this submission of the claimant at paragraph 5.23 of his written address:
…From the Claimant’s experience, the foregoing horrendous TREE OF UNFAIR TREATMENT manifested itself through several branches and bitter fruits, some of which (as the Claimant has proved evidentially) includes unwarranted victimization, Discrimination double punishment for one alleged (and non-existent) offence, false accusations, scapegoatism, sacrificial lamb to heal the ailing bank (Defendant), wrongful infraction of the constitutional fundamental rights to freedom of self-expression (by way of appeal for review of sanction); and the dignity of the claimant’s Human person (i.e. unflicted (sic) by the consequential public ridicule, public bias, public odium, economic and social deprivation, loss of social status, industrial frustration, tortures, emotional agony and trauma) as well as freedom from discrimination and etc…
No wonder, the claimant ended up with a 40-paged written address of 1.5 line spacing contrary to Order 45 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). On this score, I should under Order 45 Rule 3(1) of the NICN Rules 2017 simply declare the claimant’s final written address incompetent, but the dictates of justice demand that I do not. But I must ask: of what use is a written address if little meaning can be made out of it? We are in the era of simple and user-friendly English. The claimant may find it more useful to have this in mind. I accordingly recommend Chinua Asuzu’s just released Learned Writing (Partridge), 2019 to the claimant. History has it that there was a time, as Chinua Asuzu (ibid) pointed out in the Introduction to his book at page xxviii as well as in Chapter 3 of his Uncommon Law of Learned Writing (Partridge), 2015 at pages 6 – 7 that counsel’s sins of legalese and verbosity were actually penalized. See Mylward v. Welden (1596) 21 Eng Rep 136 (Ch).
42. The verbosity of the claimant can further be seen in the 15 reliefs (relief 1 is even sub-divided into 5 sub-reliefs with 9 itemized particulars of special and general damages) crafted by the claimant. Out of the 15 broad reliefs, 9 are for declarations. The burden on the claimant to prove declaratory reliefs is a heavy one and is not met by reference to the contradictions of the evidence and pleadings of the defendant as the claimant spent time doing in his final written address in terms of what he called DW’s monumental self-contradictory evidence. In declaratory reliefs, the claimant succeeds on his own evidence, and not on the weakness of the defendant’s defence. The claimant cannot even rely on the evidence of the defendant in order to succeed. See Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, which relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, held that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. See also this Court’s decision in Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4th December 2018 especially paragraph 65. The Courts have rationalized this on the ground that the grant of a declaratory relief is discretionary. See MTN Nigeria Communications Ltd v. Corporate Communication Investment Ltd LER[2019]SC.674/2014, citing and relying on Okoye v. Nwankwo [2014] LPELR-23172(SC); [2014] 15 NWLR (Pt. 1429) 93, Kwajaffa & ors v. BON Ltd [2004] 13 NWLR (Pt 889) 146 and Emenike v. PDP [2012] 12 NWLR (Pt. 1315). The claimants’ burden of proof in this case is accordingly a heavy one.
43. In considering the merit of his case, the claimant had submitted that the sworn deposition of DW is incompetent because it did not comply with section 115(3) and (4) of the Evidence Act 2011. In making this submission, the claimant equated the sworn deposition of DW to an affidavit. In fact at page 13 of his final written address, he called it an affidavit. I only need to refer to Okpa v. Irek & anor [2012] LPELR-8033(CA), relying on Akpokeniovo v.. Agas [2004] 10 NWLR (Pt. 881) 394 to resolve the issue. In this case, it was held thus:
This court has consistently held that a witness statement on oath is different from affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence…
On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained therein.
See also Henry Okobiemen v. Union Bank of Nigeria Plc (Jalingo Branch Taraba State) Legalpedia Electronic Citation: [2018] Legalpedia CA/YL/10/2017. On the basis of these case law authorities, the argument of the claimant’s counsel that the sworn deposition of DW is an affidavit is baseless and so is hereby rejected. Not only is the deposition of DW competent, this Court has jurisdiction to consider it. I so hold.
44. On whether the sworn deposition of DW is documentary evidence as to be documentary hearsay, the evidence of DW under cross-examination was that: “I am not the one that drafted the deposition. But I read through it before signing”. To start with, a sworn deposition, or even an affidavit in the true sense of it, is not a document in the sense that documentary evidence is understood. That the deposition is made in writing does not give it the character of documentary evidence in the case in which it was sworn to as to elicit the talk of documentary hearsay. So, I do not think that the rules regarding the admissibility of documentary evidence can be applied to sworn depositions or affidavit evidence in the true sense of the law. As Okpa v. Irek & anor puts it, the witness statement on oath takes the place and is the evidence-in-chief of the witness, which can and should be used as such even without more so long as it was adopted under oath. Would rules of admissibility of documentary evidence apply to evidence in chief, which is actually oral evidence in the witness box? The argument of the claimant as to DW’s deposition being documentary hearsay is not tenable; and so it is rejected. I so hold.
45. All of this signifies that all the submissions of the claimant as to the defendant’s pleadings not supported by evidence and the defendant’s written address being address of counsel that is not supported by evidence all go to no issue as they are founded on the claimant’s fallacy of an incompetent DW’s deposition.
46. The claimant had submitted that the defendant did not file any reply to the claimant’s defence to counterclaim; which, therefore, means that the claimant’s said statement of defence to counterclaim (as well as the claimant’s witness’ evidence on oath thereon) is undefended, undisputed, uncontroverted and admitted. The law is that a counterclaim is a separate suit. This means that the counterclaim approximates to the statement of facts, while the defence to the counterclaim approximates to the statement of defence. Relying on Akeredolu v. Akinremi (No. 3)[1989 3 NWLR (Pt. 108) 164,Dabup v. Kolo[1993] 9 NWLR (Pt. 317) 254,Umenyi v. Ezeobi[1990] 3 NWLR (Pt. 140) 621 andObot v. CBN[1993] 8 NWLR (Pt. 310) 140,the law regarding the principle of joinder of issues was stated by His Lordship Ogbuagu, JSC in Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt.1086) 372 at 406 – 407 in these words:
The proper function of a reply is to raise in answer to the defence any matter that must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issue of fact not arising out of the defence. In other words, a reply is used by a plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence because of the principle of joinder of issues. Where no counterclaim is filed, a reply is generally unnecessary if it is also to deny allegations in the statement of defence.
After the completion of pleadings, issue is or issues are said to be joined and the cause is ready for hearing. Such a joinder of an issue operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. In fact, if no reply is filed, all material facts alleged in the statement of defence are put in issue. A reply to merely join issues, is therefore not permissible.
The argument of the claimant that his defence to the counterclaim should be deemed undefended and so admitted is, therefore, not tenable. It is accordingly rejected. I so hold.
47. The claimant’s case is principally predicated on unfair labour practice. That he was dismissed in circumstances that were discriminatory, inhuman, denied him fair hearing, caused emotional trauma to him, and denied him his human dignity. He seeks general damages for this as well as special damages for severance package/terminal benefits, legacy fund through pension funds and litigation fees. To succeed, the burden of proof is on the claimant as he is he one that would lose once acceptable evidence is not adduced. In Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court put the matter thus:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) noted the difficulty of proof posed to a claimant who claims an entitlement relying only on an oral contract. In short, it is difficult to succeed in claims such as those of the instant claimant by simply relying on the ipse dixit.
48. The claimant, however placed great reliance on Exhibit 14. In paragraph 14 of the amended statement of claim as well as paragraph 13 of the written statement on oath of 11th May 2016, the claimant averred that his industrial relationship i.e. employment relationship is governed by not just the 1999 Constitution but by the Procedural and Main Collective Agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIA) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), which is Exhibit 14. The claimant by paragraph 6 of the amended statement of claim as well as paragraph 6 of the deposition of 11th May 2011 and Exhibit 5 was Sub-Manager (Group 4) Property Department of the defendant. By this fact, the claimant was a senior staff of the defendant. This Court has in several cases shown what a senior staff must prove in order to benefit from a collective agreement. It is that he must plead and prove by concrete evidence membership of the trade union in issue; and that the admission of an employer to that effect is not even enough. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016,Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017 and Mrs Bessie Udhedhe Ozughalu& anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018.A look at the claimant’s pleadings shows that there is no averment whatsoever as to the claimant being a member of ASSBIFI in order to take the benefit of Exhibit 14, the collective agreement. As it is, therefore, the claimant cannot rely on Exhibit 14 for any of his claims in this suit having not pleaded and established membership of ASSBIFI. I so find and hold.
49. The claimant’s case is that he and Mr Bajomo were investigated and sanctioned for the same infraction; but that he could not understand, and so it is discriminatory, for Mr Bajomo to have been treated differently from him when both of them appealed against their respective sanctions. The claimant himself put the matter in his pleadings. By paragraph 16 of the amended statement of claim as well as paragraph 15 of the deposition of 11th May 2016, Mr Bajomo was first given warning, but then he appealed against it. The appeal was not successful and so the sanction was raised to final warning. In same paragraph, the claimant was first given final warning, but when he appealed, he was given dismissal. In paragraph 20 of the amended statement of facts as well as paragraph 19 of the deposition of 11th May 2016 and Exhibit 8, the claimant averred that his appeal was “for the mitigation/downward review of the said disciplinary sanction”. In other words, it was an appeal against sanction. What the claimant unwittingly did by appealing is to reopen the issue of the sanction against him when he appealed against the said sanction. The claimant sees nothing wrong with this, arguing that it is not a crime or a wrong to appeal against the sanction of final warning. Unfortunately for the claimant, if only he had read previous decisions of this Court, he would have realized that there is everything wrong with appealing against sanction; for if it fails, it entitles the employer (the defendant in the instant case) to review upward the sanction. Which is exactly what the defendant did in the claimant’s case.
50. In Mr. Sylvanus Effiong Edet v. The Inspector General of Police& anor unreported Suit No. NIC/LA/67/2011, the judgment of which was delivered on 23rd September 2014, this Court held thus:
By relief b), the claimant is praying for “a declaration that the purported dismissal of the claimant from the Nigeria Police Force after he had been effectively retired via a police wireless message reference DTO.220930/01/2007 and ref. SB.4770/FS.FHQ/ABJ/T.4/85 is illegal, null and void and therefore a nullity and of no effect whatsoever or however”; and then relief c) prays for “an order of court setting aside the purported dismissal and upholding the verdict of retirement…”. In support of these prayers, the claimant relied on section 36(9) of the 1999 Constitution, as amended, which provides as follows –
No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.
Here, the argument of the claimant is that he had suffered on the double jeopardy rule, referring to Bernard Okeobor v. Police Council & 2 ors [2003] 12 NWLR (Pt. 834) 444 at 481. In criminal trials, where an accused is convicted and sentenced, and he/she appeals against the sentence, an appellate court is entitled to increase the sentence if the appeal is not successful. In like manner, when the claimant appealed against his punishment, he opened up that punishment for review. So if the reviewing authority finds that appeal unsuccessful, the claimant merely then opened up his initial punishment to review; in which case, if a punishment higher that what he initial got is given to him, he has only himself to blame. The case of Okeobor v. Police Council cited by the claimant is distinguishable from the instant case. In Okeobor v. Police Council, the appellant had already been punished for the offence he committed while still in service; and then was subsequently and further tried (there is no evidence that the appellant appealed the first punishment meted out on him) for the same offence while still in service, found guilty and then dismissed. In the instant case, the claimant was retired after his trial; he then appealed thereby reopening his case. He was not in service when he appealed and so the question of double jeopardy could not have arisen. His act of appeal against his punishment opened up the inquiry reminiscent of an appeal against sentence in a criminal trial properly so called. It should be noted that the case of Nafiu Rabiu v. The State cited by the claimant held that an appeal is a continuation of the action being appealed against; it is not a fresh case. In that sense, the argument of the claimant as to double jeopardy is untenable and so is hereby rejected.
In further support of his argument, the claimant had argued that the standard practice within and outside our jurisdiction is for the employer upon consideration of the employee’s appeal to reduce the punishment or reverse its decision or worst confirm the punishment; but in the instant case, the reverse was the case as the claimant was dismissed. Nothing was advanced by the claimant to substantiate this assertion. The claimant had also submitted that he cannot be put in a worse situation than he was at the end of the case against him as this will be unfair labour practice having regard to what is obtainable in a civilized society within and outside of our jurisdiction. Once again, nothing was advanced to substantiate this submission.
51. From this authority, the claimant can see that the defendant was not out of place to have dismissed the claimant. In paragraphs 15 and 16 of the amended statement of claim as well as paragraphs 13, 14 and 15 of the deposition of 11th May 2016, the claimant averred and thereby acknowledged “a bonafide, innocent & fraud-free casting error (which was predicated strictly on human mistake and industrial negligence at work) in the computation of Rents & other charges payable by UNB Plc for the PALMS SHOPPING COMPLEX BRANCH of the Bank at Lekki (Shoprite)…” The acknowledgment of industrial negligence on the part of the claimant is an acknowledgement of wrongdoing. In Exhibit 8, the claimant apologized “for the error which caused the overstated amount on the G14”, and pleaded for leniency, urging the management to reconsider the sanction given to him. Exhibit 9 then communicated the decision of the defendant to the claimant i.e. that the sanction has been reviewed from final warning to dismissal for gross misconduct. Several appeals from the claimant to the defendant that the dismissal be reviewed (Exhibits 11, 12 and 13) were not met. Case law definition of gross misconduct by Nwobosi v. ACBLtd[1995] LPELR-2121(SC); [1995] 6 NWLR (Pt.404) 658 and Eze v. Spring Bank Plc [2011] LPELR-2892(SC) is that it is conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer;so too working against the deep interest of the employerentitling an employer to summary dismissal of the employee. Thus in accepting wrongdoing and then appealing against sanction, the claimant unwittingly, foolishly I would say, reopened the issue of sanction. The claimant gave the defendant the ammunition to do what it did. The claimant has only himself to blame.
52. All the long talk about discrimination and unfair labour practice are irrelevant given that the claimant himself refused to let sleeping dogs lie. His comparison to what happened to Mr Bajomo is uncalled for. To start with other than his ipse dixit, there is no corroborative evidence to his evidence. Ordinarily, the rule is that a claimant builds his case on his own entitlement or right, not on the right or entitlement of another; except of course the case is one of unfair labour practice where comparison may be made. But this comparison must be proved. The claimant did not call any other witness to authenticate what he said of Mr Bajomo. Even at that, it must be appreciated that the penalties meted to the claimant and Mr Bajomo were not the same. The claimant was given a final warning, Mr Bajomo’s penalty was mere warning. So when the two of them appealed against their respective sanctions, they opened up the issue for the defendant who then upped the claimant’s to dismissal and that of Mr Bajomo to final warning, something that is within the right of the employer. It is accordingly out of place for the claimant to now complain. Like I pointed out in Mr. Sylvanus Effiong Edet v. The Inspector General of Police & anor, reminiscent of an appeal against sentence in criminal cases, the claimant took a huge risk when he appealed against the sanction of final warning meted out on him by the defendant. He only has himself to blame.
53. The claimant argued that he was not investigated or prosecuted or convicted of any fraud by a competent court of law; as such, the defendant cannot dismiss him. I only need to refer the claimant to case law authorities on the matter. The Supreme Court in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 held that an 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 required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In fact, AG, Kwara State v. Ojulari [2007] 1 NWLR (Pt. 1016) 551 CA held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case. And by Jubril v. Mil. Admin., Kwara State [2007] 3 NWLR (Pt. 1021) 357 CA, where there has been admission on commission of misconduct or crime by an employee, the need for proof before a regular criminal court no longer arises.
54. In any event, Samuel Niyi Abereola & anor v. Mr Aliu Toye & ors [2012] LPELR-14805(CA) held that in a master/servant employment relationship, where an audit committee investigated the financial position of the employer and found some irregularities in the maintenance and keeping of the records of accounts, the usage of the word fraud or fraudulent or misappropriation of the funds of the employer by an employee is in the general sense and certainly not intended to be with a criminal flavour; and to that extent, proof of such an allegation beyond reasonable doubt will not arise.The argument of the claimant in this regard is accordingly untenable and so is hereby rejected.
55. The claimant’s case that he was denied fair hearing by the defendant is uncalled for. The Supreme Court in Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors [2017] 14 NWLR (Pt. 1577) 410, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. The claimant is not complaining against a Court or Tribunal established by law. So the talk of the defendant breaching section 36(1) of the 1999 Constitution does not arise.
56. As for the clams for monetary sums especially as per relief (1), I agree with the defendant that the claimant did not show how he came by the sum of N850 Million he claims. A claimant is not only to show an entitlement to the sums claimed but how he came by the sum(s) claimed. It is not enough to refer to the instruments conferring the entitlement, the claimant must be specific to the sections or paragraphs or clauses conferring such entitlement. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. All of this the claimant did not do.
57. On the whole, I do not see any merit in the claimant’s case. It fails and so is hereby dismissed.
58. The defendant made no issue of its counterclaim in the written address. And so I take it that it was abandoned. This aside, the defendant showed no proof of any of the sums counterclaimed. This being so, the counterclaim of the defendant fails and is also dismissed.
59. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
