IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HON. JUSTICE SALISU HAMISU DANJIDDA
DATE: 3rd MAY, 2019 SUIT NO: NICN/YEN/79/2016
BETWEEN:
MR. KOMBO GODWIN BRAIDE………… CLAIMANT
AND
FIRST BANK OF NIGERIA PLC………. DEFENDANT
REPRESENTATION:
T. T DZEGE FOR THE CLAIMANT
C. M. NWAKA FOR THE DEFENDANT
JUDGMENT
The Claimant filed this suit by way of complaint on the 6/5/2016. The complaint was accompanied by statement of material facts, witness statement on oath and other originating processes. The Defendant on the hand filed its memorandum of conditional appearance, statement of defence and other accompanying processes. The Claimant thereafter filed a reply to the Defendant’ statement of defence. The Claimant’s claim against the Defendant is as follows:
“(A) A DECLARATION that the summary dismissal of his employment with the Defendant is wrongful, baseless and unfair, and without regards to due process and the rule of law.
(B) AN ORDER directing the Defendant to pay to the Claimant all salaries, emoluments and benefits he is entitled to, as a staff of the Defendant, assessed as follows:
(a) Monthly salary after deduction of loans and taxes -N342,679.51
(b) Quarterly payment – N541,084.25
(c) Annual Payment – N1,244,201.25
(d) Leave allowance and Holiday Travels-N1,342,301.30
(e) 50% of Gratuity – N2,700,OOO.00
from the month of March, 2013 when summary dismissal was issued to the Claimant, till judgment be delivered and thereafter till the time of execution or compliance with the said judgment.
ALTERNATIVELY
(C) AN ORDER OF THIS HONOURABLE COURT setting aside the summary dismissal issued by the Defendant to the Claimant, and also directing the Defendant to allow the Claimant to exercise his full rights of voluntary resignation or retirement from the services of the Defendant, with attendant benefits in line with the Defendant’s employment policy.
(D) GENERAL AND AGGRAVATED DAMAGES in the sum of One Hundred Million Naira (Nl00, 000, 000.00) Only.”
The Claimant in proof of his case testified as CW1 and tendered 25 Exhibits while the Defendant called DW1 and tendered 1 Exhibit.
CASE OF THE CLAIMANT
Claimant testified as CW1 and stated in his adopted statement on oath that he had been a staff of the Defendant in the position of a Relationship Manager at its Rumuomasi Branch Hub, Corporate Banking Group, Port Harcourt and his working relationship with the Defendant commenced sometime back in 1997 when he was offered a letter of employment to work with the Defendant as its staff in the capacity of a supervisor. That consequent upon his satisfactory performance during the probationary period his appointment was confirmed via Exhibit 2a. That he was promoted to the position of a Senior Banking Officer via Exhibit 3 in recognition of his meritorious service to the Defendant. That he was also promoted to the position of Assistant Manager due to commendable report of his performance and good conduct. That in his capacity as a Senior Banking Officer, he was redeployed from Lagos to the South Directorate of the Defendant and was consequently posted to the Port Harcourt (Shell) Branch of the Defendant via Exhibits 5 and 6 respectively.
That in 2009, he was promoted to the position of Deputy Manager, having been found competent and capable of doing the Defendant’s business at that level. That he was given series of commendation/award letters via Exhibits 7, 8a-8f for exceptional and outstanding performance in service. That due to his exemplary conduct and performance, he was appointed a mentor under Employee Mentoring programme in May 2008 by Exhibit 9. That due to his hard work and dedication to service, in 2010, he was redeployed and appointed to serve as Acting Branch Manager of the Defendant at its Omoku Branch in Rivers State. This is evidenced by Exhibit 10. CW1 testified that sometime in 2011, a customer to the Defendant, Dully Shipping and Trading Limited, was granted a Revolving Invoice Discounting facility which was duly approved by the Defendant. That the customer was initially advanced the sum of N200, 000,000.00 (Two Hundred Million Naira Only) which was later enhanced to N 500,000,000.00 (Five Hundred Million Naira Only) that same year, for the execution of a petroleum product supply contract with Shell Petroleum Development Company Limited. That the facility was properly utilized and turned over severally at an impressive level, however, the facility performance was observed at some point to be operating below optimal level. That at that point, Exhibits 11a – 11c were sent to the customer, requesting it to review its account position with the Defendant. That CW1 accordingly reported such developments to his immediate boss and the Group Head in line with the Defendant’s policy on order of reporting lines. That following this development, the Defendant took a position that the customer should pay down on the facility and that there should be no further disbursements to be made on the account. That at that point, the customer was forced to give an explanation as to the cause of the below optimal performance on its account and the customer attributed to stripping of its invoices at the Shell Petroleum Development Company (SPDC) Corporate vendor payment system due to reconciliatory issues arising from double taxation by Shell. That as a result of this, the customer was stranded and could not fulfill its contractual obligations to its principal, SPDC, hence faced with the threat by SPDC to cancel the contract. That the customer called for a meeting of all stakeholders and his immediate boss, the then Business Manager, Mr. Analiefo Nzegwu represented the Defendant and after the meeting, CW1 was briefed by his said immediate boss that the SPDC contract holder suggested for a change of domiciliation by the contractor (Dully Shipping and Trading Limited) to enable it access funds from other banks for the execution of the contract and to avert the looming threat of contract cancellation. That after a critical review, it was agreed that the customer should opt for “Supplier Credit” to satisfy contract needs and also keep its domiciliation to the Defendant intact whilst gradually paying down on the facility. That based on this position, the customer requested for and opened a second account to facilitate its transaction in line with the agreed terms and conditions. That at the time the customer made this request CW1 was away on training at Enugu. Exhibits 14a, 14b and 14c were Defendant’s nomination notice for the said training, a certificate of attendance, and a picture photograph taken at the venue of the training session respectively.
It is the evidence of CW1 that the new account was set up purely on the instruction of Mr. Analiefo Nzegwu, the then business manager and his immediate boss and both the request for the opening of a new account and the actual opening of the said account were done while he was away on training. That the said new (2nd) account was used to effect entirely new transactions indicated under the supplier credit structure, without disbursements from the bank’s funds, but rather profit margins were recouped to press down the Defendant’s exposure to the customer after settling the supplier. That the customer’s account was flagged whilst drawings were made from the disbursed amounts into the customer’s operative account on request for contract execution when purchase orders have been received, delivered and invoices received for discounting after necessary confirmation of invoices in the SPDC payment system.
That with this strategy in place, CW1 said in his capacity as the Relationship manager, he was able to recoup an amount totaling over N 26, 000, 000.00(Twenty Six Million Naira) for the Defendant within the crisis period and also ensured that the entire customer’s other businesses were routed through the Defendant for proper monitoring and eventual pay down on the exposure. That the customer, within the period, requested for a contingent facility through a sister company (Duliudas Construction Services Limited) to enable it receive contract proceeds for the execution of a rail line rehabilitation contract with the Nigerian Railway Corporation valued at over N 3.2 Billion, but it’s request was turned down by the Defendant.
However, when the customer manifested inability to pay down on the facility whilst the crisis period lingered on, the relationship team under the headship of the then Business Manager, Mr. Analiefo Nzegwu, was queried and invited to face the Defendant’s disciplinary committee for proper explanation. The query as read out by the panel was the creation of parallel (second) account for the customer without necessary approval and the subsequent use of the account to divert contract proceeds. That CW1 responded to the query by Exhibit 16. Meanwhile his immediate boss was placed on recovery suspension, arrested by the men of Nigeria Police Force and (EFCC) for further interrogation on the issue and later dismissed on account of another relationship (C & M Limited).
That CW1 was later re-invited to the disciplinary committee with the charge of gross mismanagement of account and he stated that he maintained his innocence, but was served with a letter of summary dismissal i.e. Exhibit 17.
That prior to Exhibit 17, he was neither suspended nor informed as to the reasons giving rise to his summary dismissal.
That throughout the over 16 years of his working career with the Defendant, no case of fraud nor mismanagement of the Defendant’s funds or violation of its policies was linked to him, rather he has won commendations and awards for diligence and hard work.
CW1 in his additional statement on oath testified further that the enhancement of the facility offered to Dully Shipping and Trading Limited from the initial N 200million to N 500 million was based on the consideration of the customer’s high turnover and increased business volume at the time which the Defendant’s management agreed and approved. And because the facility limit of N 200 million was enhanced within a space of 9 months at a rate of 150% above the initially approved limit. That when the customer did not pay down, letters were written and the Business Manager and CW1 were signatories to the letters. That even though he was the relationship officer of the customer but he was not performing the functions of that office while on annual vacation, out of his branch for training, on transfer or other engagements that required him to be absent from duty. That his duties were subject to the direct supervision of the Business Manager, Mr. Analiefo Nzegwu, and Group Head, Obiora Dibiaezue, and could not have exceeded the powers of his superiors.
That the Defendant’s banking management is structured under a team arrangement where the Relationship Managers, a team leader, Group Head and the directorate oversee the operations and management of the relationship. The performance of the customer facility was monitored through weekly, monthly, quarterly and annual reports/reviews and the activities of the customer were being appraised and necessary actions taken following the approved reporting hierarchy. Though he was the account officer to the customer, he consistently gave updates on the performance of the facility in question to his immediate superior, Mr. Analiefo Nzegwu, as well as Group Head as a matter of banking procedure.
It is CW1’s evidence that the approved facility is a revolving Invoice Discounting facility under the Oil and Gas Contract Finance (OGCF) scheme which runs like an overdraft based on invoices generated by the customer. CW1 testified that he dutifully put a red alert on the customer’s account and in addition issued demand letters to the customer. Claimant testified that he was not in any way negligent in his dealings and only did what an ordinary prudent bank staff would do in the circumstance by reporting a customer in default on his facility to the appropriate superiors as his superiors were aware of all the transactions of the customer. CW1 said no funds whatsoever were diverted. That Account opening is the direct responsibility of the front desk and the second account was opened on the authorization of the then Business Manager, Mr. Analiefo Nzegwu, his immediate boss and the customer’s contract domiciliation to the Defendant was not changed due to the creation of the second account as all contract proceeds from the Revolving Invoice Discounting Facility (RIDF) were duly routed through the customer’s account with the Defendant. That the proceeds that came to the second account were those financed under the suppliers’ credit finance arrangement when further disbursement on the main account were stopped. The proceeds received into the second account were payments for supplier made based on supplier’s credit arrangement hence the supplier was paid and the margin recouped to press down the Defendant’s exposure to the customer. That further transactions on the account as allowed by CW1 were directed by the Defendant. That the customer sent a letter to the Defendant for the opening of the second account which was received on the 10th August, 2011 and action taken on the 11th August, 2011, while CW1 was on training in Enugu between 9th to 11th August, 2011. That Account opening with the Defendant starts and ends with the customer services department and is purely an operations function. The relationship team is merely notified because the customer is a borrowing customer and there is no known specific policy on customers opening more than one account. CW1 testified that he had never either by himself nor in collusion with any other person worked against the interest of the Defendant. That all monies paid through the second account were proceeds of the supplier credit arrangement whereby independent product dealers were engaged to supply products to SPDC on behalf of the customer. That Payment received into the second account and the supplier is paid whilst the mark up is recouped into the first account to gradually pay down the defendant’s exposure to the customer and this cannot be construed as diversion as the proceeds were purely from the supplier credit arrangement. The amount of N 26 million was recovered from the supplier credit facility transaction to reduce the Defendant’s exposure (indebtedness).
Under cross-examination, CW1 said that he was the account officer of Dully Shipping Company. That revolving invoice discounting facility is a facility where a customer’s invoice with its principal is discounted on a revolving basis. That the facility was enhanced based on his recommendation when the Defendant deemed it appropriate. That the Invoice was based on a contract Dully Shipping Company got from Shell Petroleum Development Company. That there was a contract between Shell and Dully. That Dully Shipping was Indebted to the Defendant before the enhancement of the facility based on the strength of the invoices already in Shell Petroleum Company’s Vendor payment system. That it is not true that N421, 600, 000 was already discounted invoices because that amount included interest in the facility. That the above sum was the amount being owed by the customer plus interest. CW1 said that it is not true that the Defendant queried him on account of persistent withdrawal by the customer without regard to cleaning up of already discounted Invoices. That he was queried but not on account of persistent withdrawals and when he was queried, the customer was indebted to the tune of N 421, 600, 000 as discounted Invoices plus interest. That the security provided by Dully Shipping Company was Domiciliation of proceeds from discounted invoices. That it is not correct that he opened the second account for the customer but he only used to manage the account. CW1 stated that it is the responsibility of the Customer Services to open an account for a customer. That the contract Dully Shipping got from Shell Company was for supply of Diesel. It is correct that between 6/9/2011 and 8/2/2012 the sum of N 296, 540,473.50 was received by Dully Shipping Company from Shell Petroleum Company through the second account because it was a supplier credit by the customer where it engages a supplier to Shell on its behalf and receives its payment when Shell eventually makes payment for such deliveries and these supplies and payments are not based on discounted invoices but on supplier credit. CW1 answered that the Defendant queried him on account of the second account over which the sum of N 296, 540,473.50 was paid by Shell Company. CW1 said that he appeared before the disciplinary committee twice and it is not correct that he was placed on recovery suspension. That the Defendant dismissed him after his second appearance before the disciplinary committee. That his immediate boss was queried on account of this transaction. CW1 said that it is not correct that the account was badly managed that is why the Defendant lost its money. It was the evidence of CW1 under cross-examination that Shell Petroleum Company was already owing the Customer for the invoices which the Defendant discounted and the Defendant gave Dully Shipping money so that Shell would pay it through the Defendant. That the expected monies came from Shell but was not sufficient to clear the Bank exposure. That it is not correct that opening of the second account was a violation of the invoice discount facility because all the monies paid through the second account were proceeds of supplier credit that existed between Dully Shipping and Lien Nig. Ltd for the execution of its contract with Shell Petroleum. That CW1 did not recommend for the second account to be closed because his Business Manager and Group Head agreed that the second account should stay. That the supplier credit was a subsequent transaction and the turnover in the revolving facility from its inception was over Three Billion Naira and the Interest element component was over Three Hundred Million Naira. That it is not correct that the payment made through the second account should have been made through the facility account because if the payment was made that way, the Bank would have erroneously collected the supplier’s funds alongside the mark up profit. That CW1 wrote an appeal letter after he was dismissed. That Dully Shipping had an account for the revolving invoice discounted facility and the second account for the supplier credit facility. That it is true that between 16/7/2011 and 8/2/2012, the sum of N 296, 540,473.50 came into the second account from Shell on the basis of the supplier credit facility and for the same period, only N 32, 162, 263,50 was injected into the second account. Dully Shipping made an offer to settle its exposure to the Defendant through a contract awarded to a sister company but the Defendant declined the request.
CASE OF THE DEFENDANT
Defendant called DW1 as its witness where he testified that he is a staff of the defendant working in the Department of Business Support Consultants and that after the Claimant’s employment was confirmed, he was prompted and commended as a routine exercise of the Bank and not for the reasons advanced by the Claimant. That the defendant runs a mentoring scheme where staff of higher grades mentors their subordinates and the Claimant was not appointed as a mentor under the said mentoring program because of his alleged exemplary conduct and performance. That the Claimant was temporarily redeployed and appointed to serve as Acting Branch Manager but the Claimant’s redeployment was not as a result of his hard work and dedication but because of the need to do so then. That the facility was not properly utilized contrary to the allegation of the claimant and was operating at a dismal level to the prejudice and great financial loss of the defendant despite that the Petroleum product supply contract in issue was at a beneficial and robust profit margin for Dully Shipping and Trading Limited. That despite the huge profits made by the said Dully Shipping and Trading limited, it could not pay down on the initial facility of N 200, 000,000, which the parties
agreed should be paid down in November 2009 for 180 days and when the facility was enhanced to N 500m in March 2010 for a period of 365 days, the said customer could not also pay down. That because Dully Shipping and Trading Limited could still not pay down on the facility as and when due, the balance of the facility (N 421, 662,970) was renewed in April 2011 for another 180 days which expired in September 2011 to allow the said Dully Shipping and Trading Limited to pay down the indebtedness but it failed, refused and neglected to do so. That the Claimant was at all relevant times the account officer of Dully Shipping and Trading Limited, the customer who borrowed the facility that turned out to be non performing and he was the person that monitored and supervised the said customer at all relevant times to ensure that the facility performed but he failed in this responsibility to the prejudice of the defendant. That a facility that failed in this way cannot be said to have been properly utilized and turned over severally at an impressive level and the failure was because the claimant as the relationship manager refused to properly and honestly supervise and monitor the contract payments and utilization of the proceeds to enable the customer pay down the facility. That the defendant admits that Dully Shipping and Trading Limited was granted a Revolving Invoice Discounting facility initially for the sum of N 200,000,000 which was later enhanced to N 500,000,000 for the execution of a petroleum product supply contract with the Shell Petroleum Development Company of Nigeria Limited with robust profit margin for the said Dully Shipping & Trading Limited. DW1 testified that demand letters were written to Dully Shipping and Trading Limited (customer) to pay but it still did not pay down and the letters went out to the customer and not to the defendant whom the Claimant is giving notice to produce. That the Claimant did not as the Relationship Manager put a red alert on the account and this ensure that the customer diverted the proceeds of the contract to the defendant’s prejudice and this resulted in the Claimant and Mr Analiefo Nzegwu being queried on the transaction. That when the defendant found that the customer had defaulted on the facility and had instead of paying down diverted the proceeds of the contract owing to the negligence of the Claimant and Mr. Analiefo Nzegwu, the defendant stopped further disbursements on the facility which was what any prudent financial institution would do in the circumstances. DW1 further testified that the Claimant was the relationship manager of the said delinquent customer’s account in question and he was the direct eye of the defendant in the management of the account which was operated in violation of the transaction dynamics of the account with the operation of the parallel account for the customer without appropriate approval. That the claimant who was the account relationship manager refused to flag the customer’s account to which the contract proceeds was domiciled to the effect that drawings can only be authorized by the Branch’s Resident Internal Control Officer (RICO) after making provision for principal repayment and Interest charges for outstanding facility balance and this went on until the Credit monitoring Team in Credit Risk Management (CRM) raised exception on the account. That the Claimant’s claim that the customer attributed the below
optimal performance on the account to tax issues between the customer and SPDC is not tenable as ideally players in oil & gas Business should be conversant with the invoicing system before engaging in any form of discounting and the customer is not the only customer enjoying such facility and the alleged double taxation by SPDC cannot be restricted to Dully Shipping Limited alone meaning that no such discrepancy existed. That the letter written by the customer for the opening of the second account was written after the Claimant had agreed with the
customer on the Issue of opening the second account and nobody could have opened such an account in the branch without reference to the Claimant who was the relationship manager of the customer/account in question. That the Claimant is aware that the defendant is responsible for training Its staff and such trainings however are not and should not put the Job to a disadvantaged position and in this case, the Claimant was not on study leave but was still doing his job physically in the branch and via internet and telephone. That the Claimant and Mr. Analiefo Nzegwu assisted the customer to go into supplier’s credits and arrangement (with Cien Investment Ltd.) without notifying the defendant’s Credit Analysis and Processing (CAP) and Credit Risk Management (CRM) and this could have served as a major red alert to stop further transactions on the invoice Discounting Facility Line and they also failed to stop further discount of invoices/disbursements even when they realized that payments were unduly delayed by SPDC on already discounted invoices or flag the account as this could have helped check the volume of bank exposure, possibly to only few invoices generated for some period. That the Claimant failed and neglected to monitor the customer’s account properly because the Claimant cannot show that SPDC was not paying the customer for the petroleum products supplied SPDC. That the Claimant was the relationship manager of the customer and knew about the letter requesting for opening of a second account and the actual opening of the second account for the customer from where proceeds of the discounted invoices were withdrawn and diverted and the excuse that he had an Invitation to go to Enugu for training is of no moment because he was the relationship manager of the customer/account and the second account could not have been opened without his authorization being that it was an Invoice Discount Facility account (IDF) and if the Claimant claims that he did not authorize the opening of the account, he did not move for it to be closed in his capacity as the relationship manager either. That the opening and operation of the second parallel account is a violation of the defendant’s policy on IDF facility and the Claimant never referred it to defendant’s CAP because the opening of that account facilitated the change of domiciliation of payment and aided diversion of contract proceeds from SPDC. That payments to the customer from SPDC passed through the said second account instead of the existing IDF account and the Claimant rather than use the funds to clean up the facilities, allowed the customer to utilize/withdraw them thereby deliberately allowing the customer to use money that came in from the contract proceed which is invariably a diversion of fund. That the Claimant failed to flag the account as instructed by the defendant’s Branch RICO, making it possible for the customer to draw against RICO’s authorization. That the Claimant was summoned before the defendant’s disciplinary committee and he did not deny opening the 2nd parallel IDF account for the customer aforesaid but tried to justify why they opened the said account part of which he argued was to overcome the challenges the customer was facing with SPDC.
That the Claimant did not recover the alleged N26m within the period he described as crises period rather as at the time he first appeared before the disciplinary committee of the defendant, the defendant had already lost the amount of N406.6m which the customer was supposed to repay but which was not repaid due to the negligence of the Claimant. That at the second sitting of the Defendant’s disciplinary committee, the Claimant informed the committee that only the sum of N15m had been recovered since his last appearance before the disciplinary committee, meaning that the debt remained unpaid and the other businesses which the Claimant alleged he ensured that the customer routed through the defendant were a figment of his imagination and none existent. That the Claimant was investigated, queried and he responded to the query and was later summoned before the defendant’s disciplinary committee where the charge was read to him in line with procedure and he was given an opportunity to respond and he responded to the allegation and also appeared before the said disciplinary committee where he defended himself orally and adopted his written reply also. That the defendant further testified that the Claimant was queried and suspended before his eventual dismissal in line with laid down procedure and the defendant is not obliged to give reason for the summary dismissal of the Claimant whose acts sabotaged the interest of the defendant, and worked for the defendant’s customer against the interest of the defendant with the operation of a parallel IDF account which enabled the customer to divert funds that should have been used to clean up the debt owed the defendant by the customer. That the Claimant filed an appeal against his summary dismissal, and his appeal was considered and declined for lack of merit. That contrary to the claimant’s claim, the Claimant had been arraigned before the Defendant’s Disciplinary Committee in respect of granting of unauthorized OGCF facility – Absarf & Co. Ltd. on 14/6/2011 but was absolved and coincidentally, the Claimant was also the relationship manager of the said account. That after the employment contract with the Claimant and before he was dismissed, the Claimant mis-conducted himself in the said service by violating the defendant’s transaction dynamics and aided the customer in opening and operating a second Invoice Discount facility (IDF) and thereby exposed the defendant to unwarranted losses and damages.
Under cross-examination, DW1 said that the performance of Dully Shipping was supposed to be monitored frequently but he is not in a position to say that the Claimant had done that. That the Claimant had superiors and his duties were subject to the supervision of his superiors. That when the facility was below optimal level Exhibits 11A-C were jointly written by the Claimant and the Business manager from 2011 to 2012 and the Claimant kept writing the Dully Shipping about the poor performance of the facility. That going by Exhibits 8A-8E, the Claimant had a history of exceptional and excellent performance on his job during the period covered by the Exhibits. That the Claimant was not on suspension as at the time he was dismissed. That all accounts are registered on a central server which everybody would be aware of. When the second account was opened, the Claimant was in Enugu but that does not mean that he was not consulted because that was the standard procedure though I do not have any evidence.
DW1 assumed that the Business Manager would be aware of the second account but the group head may not be aware. The Defendant did not close the second account though it was aware of it.
DEFENDANT’S FINAL WRITTEN ADDRESS.
The Defendant filed its final written address on 8/8/2018 wherein it raised two issues for determination as follows :-
“(a) Whether the employment in issue has any statutory flavor or it was a simple master and servant relationship?
(b) Whether the summary dismissal of the Claimant was wrongful and Whether the Claimant is entitled to any of his claims?”
In arguing its issue NO.1, Defendant submitted that Exhibits 1, 2A, 2B and 18 have clearly shown that the employment of the Claimant has no statutory flavor but a simple master and servant relationship governed by a written contract of employment.
On the Defendant’s issue No.2, it was submitted on behalf of the Defendant that by virtue of article 14 of Exhibit 18, the Claimant failed to place before the court the terms and conditions of his employment which were breached by the Defendant. He referred the court to the case of Katto V CBN (1999) NWLR (Pt. 607), 390
Defendant argued that suspension pending investigation is not compulsory or a requirement and there is no provision in Exhibit 18 that gave the Claimant the option to resign or retire but only gave the Defendant right to dismiss the Claimant summarily for any act of gross misconduct.
It is the argument of the Defendant that the Claimant as the account officer aided Dully Shipping Company to open another account different from the account where all payments for Diesel from SPDC should go by virtue of the domiciliation.
Defendant referred to the case of WAEC V Oshionebo (2007) ALL FWLR (Pt. 370) 2501 and contended that even where termination is wrong, the employee would only be entitled to the salary for the period of notice to terminate his employment.
CLAIMANT’S FINAL WRITTEN ADDRESS
Claimant on the other hand filed his written address on 14/9/2018 wherein he raised two issues for determination as follows :-
“(1) Whether the Defendant followed the procedure laid down in its Employee Handbook (Exhibit 18) in dismissing the Claimant.
(2) Whether the Claimant failed to monitor Revolving Invoice Discounting Facility (RIDF)?”
Claimant in making his submission for the 1st issue strenuously argued that the Defendant
woefully failed to adhere to the procedure outlined in Exhibit 18 before dismissing the Claimant, neither is there any shred of evidence tending to show, even remotely, that the Defendant complied with any such procedure as laid down in its Handbook (Exhibit 18).
Claimant referred the court to paragraph 33 of his statement of facts and the cases of Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180 and Odom v. P.D.P (2013) All FWLR (Pt.698) 972 and contended that he was never suspended by the Defendant before the purported dismissal nor was any document pleaded or frontloaded to that effect. Claimant stressed that the issue of suspension is critical in determining the outcome of this suit which the Defendant failed to rebut by credible evidence.
It is the submission of the Claimant that the issue of gross misconduct and Disciplinary procedure dwelt on with vigor by the Defendant were not pleaded nor issues joined on them. Claimant cited the following cases in support of his submission. Archibong vs. Edak (2006) All FWLR (Pt. 323) 1631 at 1643, Onwuka & Anor v. Omogui (1992) NWLR (Pt. 230) 393; (1992) SCNJ 98, George v. Dominion Flour Mills Ltd. (1973)41 SCNLR 117 and Emegokwe v. Okadigbo (1973) 4 S.C 113, Comptroller-General of Customs &ors v. Comptroller Abdullahi B. Gusau (2017)LPELR-42081 (SC)
Claimant opined that the Defendant blew hot and cold from the same breath. As in one breath, DW1 said that the Claimant was suspended and in another one, the Defendant contended that there was no need for the Claimant to be suspended since he was summarily dismissed.
On the Claimant’s 2nd issue, it was submitted on behalf of the Claimant that he diligently monitored the RIDF under the supervision of his two superiors and he gave them regular update on the performance of the RIDF but they failed to take action. Claimant also argued that he did not open the 2nd account as it was opened while he was in Enugu for training.
DEFENDANT’S REPLY ON POINTS OF LAW TO CLAIMANT’S FINAL ADDRESS
Defendant filed its reply on points of law to the Claimant final address and urged the court to distinguish the cases of Udeagha vs. Omegara (supra) and Oladele vs. Aromolaran (supra) cited by the Claimant to support his submission that the Court cannot act on an untendered document. Defendant argued that the case of Oladele vs. Aromolaran had to do with a document that was rejected in evidence unlike the present case where secondary evidence is permissible by law. This is because the suspension letter in issue in this case was addressed and given to the Claimant, who by the pleadings knows that he will be required to produce the original at the trial and DWl gave evidence that the copy was missing. According to the Defendant, by Section 89(a)(i) of the Evidence Act 2011, Secondary Evidence may be given of the existence and contents of a document when the original is shown to be in the possession of the person against whom it is sought to be proved, as in this case the original suspension letter is with the Claimant.
Defendant argued that by section 98(1) (a) of the Evidence Act 2011, any secondary evidence, including oral evidence, is admissible to prove the existence and content of the letter of suspension.
It is also argued on behalf of the Defendant that Contrary to the submission of the Claimant who cited Archibong vs. Edak (supra) and Onwuka vs. Omogui (supra). The issues raised at paragraphs 4.2.2, 4.2.6 and 4.2.7 of the defendant’s final written address were pleaded by both the Claimant and the defendant when both parties relied on the terms and conditions of employment as contained in exhibit 18. The entire pleadings are centered on exhibit 18 and the Claimant must plead and prove the terms and conditions of his employment which he contended were breached by the Defendant.
Defendant referred to paragraph 12(ii) of the Statement of defence where it pleaded that the Claimant was summarily dismissed in line with his contract of service and that the defendant will also rely upon the defendant’s handbook earlier pleaded by the Claimant to show that the dismissal was in line with the contract between the parties.
So also paragraph 14 of the Statement of defence where the defendant pleaded that the
Claimant was duly dismissed in Line with the contract of the parties and that the Claimant was not entitled to a right of voluntary resignation or retirement from the employment
of the defendant
Defendant Contended that Contrary to the Claimant’s submission, it is a settled principle of law of pleadings that you can only plead facts not evidence or argument. That the fact of the dismissal of the Claimant was pleaded in the statement of defence. Defendant referred to Uchieze vs. Ezenagu & Ors (2010) LPELP – 5043(CA)
It was submitted by the Defendant that contrary to the Claimant’s argument in his final address, what is in issue in this case is the summary dismissal of the Claimant, not his suspension.
In its further reply, Defendant submitted that there is no ambiguity in article 14.4 of exhibit 18 and the wordings of exhibit ’18’ are clear and should be given their ordinary meaning. Defendant referred to the case of Inua vs. F.B.N. (2016)2 NWLR Part 1495 at page 89 at paras G- A and finally urged the court to dismiss the suit.
DECISION OF THE COURT
I have carefully looked at the processes filed by the parties, their testimonies, Exhibits admitted and their submissions. Both parties have formulated two different issues all in their bid to prove and disprove the case of one another as the case may be. However, whatever the issues will be, they have to flow and be distilled from the facts and circumstances of the case and the applicable law. The claimant’s principal reliefs are to declare his summary dismissal wrongful and be granted all his salaries, emoluments and benefits. Or in the alternative, that the summary dismissal be set aside and allow him to resign or retire voluntarily with attendant benefits.
It is the law that a servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. See Idoniboye – Obu V NNPC (2003) LPELR – 1426(SC), Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC.
Claimant placed before the court Exhibits 1 and 2A which are his offer of employment and confirmation letters. Exhibits 3 and 4A are promotion letters, while Exhibits 8A to 8F are letters of commendation. Similarly Exhibits 17 and 18 are letter of dismissal and First Bank Employee Handbook respectively.
It is evidently clear from the facts adduced that the Claimant has proved the burden placed on him that he was the employee of the defendant. No one disputes that. And by producing Exhibits 2B, and 18, he has also placed before the court the evidence that the court will consider in determining the circumstances his employment can be determined. This is contrary to the Defendant’s contention on its issue NO. 2 that by virtue of article 14 of Exhibit 18, the Claimant failed to place before the court the terms and conditions of his employment which were breached by the Defendant. I find that contention as unfounded and I hold that Exhibits 2A and 18 contain the terms and conditions of the claimant’s employment.
Looking at the Claimant’s relief (B), that the Defendant be directed to pay him his salaries, emoluments and benefits from March, 2013 till Judgment is delivered and possibly executed.
The argument of the counsel for the Defendant that the employment of the Claimant has no statutory protection is apt here. The employment is a simple master and servant relationship governed by a written contract of employment. It is a contract of personal service and there is no evidence to show that it has any statutory flavour and cannot therefore be elevated as such. The Court cannot reinstate a dismissed staff in a private contract of employment except of course the contract agreement between the parties expressly says so. It is trite that one cannot force a willing servant on an unwilling employer and so the court cannot treat the contract between the parties as continuous one by directing the defendant to pay the claimant his salaries, emoluments and benefits until judgment is delivered and or complied with. See Afribank V Osisanya (1999)LPELR – 5206(CA).
However, this is not to say that one will not be entitled to damages for wrongful dismissal because whether a contract has statutory favour or not, the contract has to still be determined in accordance with the manner provided by the written contract of the parties. See Okobi V Sterling Bank Plc (2013) 30 NLLR (Pt. 86) 246
It is settled that an employer is entitled to bring the appointment of his employee to an end for any reason or for no reason at all. So long as he acts within the terms of the employment. However where any reason is adduced, then it has to be justified. See Idoniboye – Obu V NNPC (supra). The Supreme Court in Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC) had this to say.
“Although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more”.
This brings me to Exhibit 17 which reads as follows :-
” Dear Kombo,
SUMMARY DISMISSAL
This letter serves to advise you that you are summarily dismissed from this organization with immediate effect.
Please take note and be informed accordingly.
Yours Sincerely,
For: FIRST BANK OF NIGERIA PLC
Ayodele O. Jaiyesimi
HEAD, HUMAN CAPITAL MGT. & DEVELOPMENT”
Even though Exhibit 17 stated no reason for the summary dismissal of the claimant but the Defendant has persistently contended in its various paragraphs of its pleadings that the Claimant being an account officer of its customer misconducted himself in the course of his service by violating the Defendant’s transaction dynamics and aided that customer in opening and operating a second Invoice Discount Facility and thereby exposed the Defendant to unwarranted losses and damages.
Whether the Defendant has justified the dismissal of the claimant having preferred a reason in its pleadings for the said dismissal, paragraph 18 of the Defendant’s statement of defence states as follows :-
“18 In further answer to the statement of facts, the defendant further avers as follows: –
(i) That after the employment contract with the Claimant and before he was dismissed, the Claimant misconducted himself in the said service by violating the defendant’s transaction dynamics and aided the Claimant in opening and operating a second Invoice Discount facility (IOF), and thereby exposed the defendant to unwarranted losses and damages.
PARTICULARS:
(a) Supporting a customer of the defendant who was heavily indebted to the defendant, namely Dully Shipping and Trading Limited to operate a parallel account to avoid being flagged.
(b) Aiding Dully Shipping and Trading Company limited, a customer of the defendant who was seriously exposed and Indebted to the defendant to divert funds that should gone into the IDF account to a parallel account.
(c) Failure as the Relationship Manager of the defendant in charge of the customer Dully Shipping and Trading Company Limited to ensure that funds were not withdrawn from the IDF account for any other reason other than to repay the loan.
(d) Creating and running a second invoice discounting facility account for Dully Shipping and Trading Co. Ltd. on 16/09/2011 without obtaining prior necessary approval from defendant’s CAP while abandoning the old IDF account and this facilitated the change of irrecoverable domiciliation by the customer which was in SPDC, the principal’s payment system.
(e) Sabotaging the defendant (sic) this employer by supporting and dishonestly assisting Dully Shipping and Trading Company Limited who was then heavily indebted to the defendant to render ineffective the domiciliation of payments due from SPDC to Defendant.
(f) Failure to flag the said customer’s account to which contract proceeds have been domiciled to the effect that drawings can only be authorized by the defendant Branch’s RICO after making provision for principal repayment and interest charges for outstanding facility balance.
(g) Failure to flag the said customer’s account until when the credit monitoring Team in CRM raised exception on the account by which time the harm had been done.
(h) A review showed that a total inflow of N 296, 054,473.50 (received from SPDC) was recorded on the parallel account used to divert funds between 16/09/2011 and 8/02/2012 while
only N 34, 162,063.50 out of the amount was injected into the old IDF facility account whereupon the customer was allowed to utilize the remaining funds/divert the contract proceeds.
(i) Discounting invoices persistently without regards/observance of the clean-up cycles (i.e. cleaning up the earlier discounted invoices) and withdrawals/disbursements were allowed without ensuring that proceeds of already discounted invoices are recovered.
(j) Failure to neither monitor closely activities in the customer’s account nor follow up effectively with the contract employee (SPDC) whose discounted invoices were already delayed unduly.”
On the contrast, the claimant stated in paragraph 6(a) of his reply to the statement of defence that the second account which is the bone of contention was opened on the authorization of the then Business Manager, Mr. Analiefo Nzegwu who was the claimant’s immediate boss in office. Claimant also averred in paragraph 6(f), (g), (h), (r) and (t) that accounts are set up in a central unit at the Head office with a single customer ID after which all the details of the account are at the disposal of the Defendant. That account opening with the Defendant starts and ends with the customer services department and is purely an operations function. That the relationship team is merely notified because the customer is a borrowing one. Claimant further stated that the Business Manager and Group Head gave explanation as to why the second account when discovered, should be allowed. Claimant averred that all monies paid through the second account were proceeds of the supplier credit arrangement whereby independent product dealers were engaged to supply products to SDPC on behalf of the customer and payments received into the first account and the supplier is paid whilst the mark up is recouped into the first account to gradually pay down the Defendant’s exposure to the customer and according to the claimant, this cannot be construed as diversion as the proceeds were purely from the supplier credit arrangement.
Under cross – examination, DW1 said the Defendant has in place Corporate Banking Group Hierarchy and the Business Manager and Group Head were overseeing the activities of the claimant. He admitted that the Claimant had superiors who were Mr. Analiefo Nzegwu and Obiora Dibiaezue as the group head and the Claimant duties were subject of the direct supervision of these two persons. DW1 went on to say that when the facility was below optimal level Exhibits 11a – 11c were jointly written by the Claimant and his Business Manager and the Claimant kept writing the customer about the poor performance of the facility and the Defendant was aware of this. DW1 said that all accounts are registered on a central server so that everybody would be aware of it and when Exhibit 13 was received by the Defendant, the claimant was in Enugu for training. DW1 said he would assume that the Business Manager would be aware about the second account and the Defendant should have been aware too.
From all these, I do not think that the Defendant has justified its reasons for dismissing the claimant because I could not see how the claimant would be blamed for opening of the second account. By the evidence before the Court and given the status of the claimant in the bank, the claimant was not an approving authority. DW1 confirmed that the Claimant had superiors and his activities were under the supervision of those superior officers and the Defendant was aware of the second account.
I am of the opinion that the Claimant will only be said to be negligent when his conduct was careless and not that of a reasonable man. I am unable to be persuaded that the Claimant has misconducted himself in the course of his service by violating the defendant’s transaction dynamics and aided the Customer in opening and operating a second Invoice Discount facility (IOF), and thereby exposed the defendant to unwarranted losses and damages. See JIDEOFOR JUSTIN AKUNNE V Eco Bank Nig. PLC in un reported SUIT NO: NICN/LA/213/2011 Judgment of this Court which was delivered on 6/12/2017 by HON. JUSTICE KANYIB PJ.
Be that as it may, Article 14 of Exhibit 18 provides for disciplinary procedure for erring staff of the Defendant. Article 14.5 makes provision for summary dismissal and a column for offences and penalties. Under column 34, the penalty for breach of official procedure without justification or careless or negligent or improper performance of duty is giving a warning letter or compulsory resignation depending on the degree of the offence.
It is clear from the above that even if the claimant were to be found negligent, the penalty to be meted out against him according to Exhibit 18 was a warning letter or compulsory resignation not dismissal. And it is on the strength of the above that the summary dismissal of the claimant should be set aside however since the court cannot force a willing servant on an unwilling employer in the contract of personal service, the employment of the claimant is deemed terminated on the 27/3/2013 and one month salary in lieu of notice be given to the claimant.
On the whole, I make the following orders as follows:-
1. That the summary dismissal of the claimant is wrongful and it is therefore set aside.
2. That the Claimant shall be paid the sum of N 342, 679.59 as one month salary in lieu of notice.
3. That the Claimant having served the Defendant from 24/3/1997 and wrongfully dismissed on 27/3/2013 shall be paid his terminal benefits, entitlements and gratuity, which shall be computed and paid to the Claimant.
That the above sums shall be paid within 30 days from the date of this Judgment. Failure to do so attracts 10% interest per annum.
I make no Order as to Cost.
Judgment is entered accordingly.
……………………………………..
HON. JUSTICE S.H. DANJIDDA
JUDGE
