Obemeata Oshoke Anthony -VS- First City Group Limited & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATED: 7^TH OF FEBRUARY, 2020 SUIT NO.: NICN/BEN/10/2013

BETWEEN:

OBEMEATA OSHOKE ANTHONY …………. CLAIMANT

AND

FIRST CITY GROUP LTD…………..DEFENDANTS
FIRST CITY MONUMENT BANK PLC

REPRESENTATIONS:

I.P. Igbuan with him M. Omorogiuwa for the claimant

O.A Orimoloye with him Chief A. Emiola Ajipe, Lade Odogiyan, Kayode Afolabi, E.M Abayomi , J.A Okeke for the defendants

JUDGMENT

The claimant filed his case vide a complaint on the 13^th of May, 2013. By an amended General Form of complaint filed on the 11^th of July, 2018. The defendants on the 5^th of November, 2013 filed their statement of defence jointly. By a consequential amendment dated 13^th of November, 2018 the defendants’ amended their statement of defence.

It is the claimant’s case as per his witness statement on oath that he was offered employment by prime rose investment limited (a subsidiary of the 1^st defendant, now liquidated to work as a driver for 2^nd defendant) in July 2006 and his employment was confirmed after six months. He stated further that on the 3^rd of March, 2008, he was offered another employment as clerk 3 and he resumed on the 10^th March, 2008. According to him, sequel to his hard work; he was made a loan collection/recovery officer attached to the defunct Mid-West Region of the bank in Nigeria. That in 2009 prime rose investment without pay off or prior information transferred his employment to the 1^st defendant who issued him another appointment letter and seconded/deployed him to the 2^nd defendant. That in 2009 Central Bank of Nigeria (CBN) came up with a policy to ensure all banks depositors fund are secured in response to that the 2^nd defendant set up a committee to which he is a member with the purpose of recovering bad loans from the 2^nd defendants customers. He pleaded that the committee recovered Two Hundred Million Naira and he recovered Forty Million Naira. He averred that all transaction during the loan recovery operations are processed in cash advance format and debiting of the customer’s account. That since the inception of the cash advance debiting, his supervisor has been collecting cash in his name from customers account for his personal use which he sometimes pay and sometimes his personal money will be debited as repayment by the 2^nd defendant.

It is his averment that he sought and was granted leave to visit his sick father but that upon resumption he was issued query alleging him to have forged the signature of one Babatunde Gbewesa which he responded to denying the allegation. That he was issued a second a third query and thereafter was placed on suspension for one month without pay and his personal effect such as car, laptop etal was seized from him. He continued that while on suspension he wanted to have access to his personal salary account but was informed by the cashier that his account has been debited and closed without his consent. That on the 16^th of June, 2011 he was instructed to appear before the staff disciplinary committee but the sitting was called off because of the absence of Babatunde Gbewesa. He went on that he was called again on the allegation that he forged Babatunde Gbewesa his supervisor’s signature to pay the policemen and the 2^nd defendant’s solicitor. He admitted this allegation to the extent that he paid the policemen and the 2^nd defendant’s solicitor but it was on the instruction of Babatunde Gbewesa. His grouse is that he was not allowed to confront his accuser/s. It is his statement that on the 20^th of August, 2011 he received through his personal email a letter of dismissal and on the 26^th of March, 2012, that the defendants published his name on the Nigerian Observer publications disclaiming him as his staff. That the acts of the defendants in this regards is calculated to dent his image and prevent him from securing employment in any financial sector in future. That his dismissal is not in accordance with Article 7 of the ILO Convention 158 and paragraph 7 & 8 of ILO Recommendation 166.

It is against this backdrop that the claimant claimed against the defendants jointly and severally as follows;

A declaration that the purported suspension and dismissal of the claimant is unjust, unfair, lacks merit illegal wrong and unconstitutional as it was done out of punitive, malice and mischief.
A declaration that the debiting and closure of his salary account no account 0225357010 with the 2^nd defendant is illegal and infringement on the right of the claimant and the 2^nd defendant should refund him the credit balance in the account of about a hundred thousand before the 2^nd defendant debiting and closure of the account.
An order that the claimant be paid by the defendants all outstanding salaries at the rate of N55, 500.00 per month from March, 2011 when he was purportedly suspended until judgment is given and executed.
An order that the defendants pay the claimant the sum of N10, 000,000.00 (Ten Million Naira) as general or exemplary damages for the wrongful suspension, dismissal and the libelous publication against him by the defendants.
An order of the Court compelling the defendants to tender a written unreserved apology to the claimant and also to be published in Nigerian observer within 14 days of the judgment for the libelous publications by the defendants.

The defendants on the other hand denied that the claimant was hardworking and also that he solely recovered the sum of forty million Naira. Rather they averred that claimant was using the defendants’ cash for his personal purpose and not returning same hence his suspension which was in line with the bank policy. That in March, 2011 when he was paid, his monthly loan repayment were taken, then a cash withdrawal by him then debit due to the monthly loan repayments without corresponding credits. That he was invited before its disciplinary committee and was afforded fair hearing where he neither denied the forgery nor furnish specific responses to the queries. That during investigation it was found that claimant has been forging his supervisor’s signature to commit several fraud. That as a result of this, they incurred financial loss to the tune of N556, 200.00 (Five Hundred and Fifty Six Thousand Two Hundred Naira) out of which only N63,000 have been recovered. That the publication of his name was made in the normal course of business of the defendants in effect of his dismissal.

During trial, the claimant testified for himself as CW1 and through one Henry Ifenedo CW2. He adopted his written statement on oath of 13/5/13, and additional deposition of 4/6/14 and a further statement on oath on the 11/7/18 as his evidence in the case. He tendered documents which were admitted in evidence as Exhibits OO –OO15. CW2 equally adopted his witness statement on oath on the 3/2/15 and 7/2/18 as his evidence in the case. He tendered documents which were admitted in evidence as Exhibits H-H5. The defendants testified through one Emojevwe Eboh as DW. He adopted his sworn deposition on oath on the 15/11/13, 16/3/16 and 13/11/18. He tendered document which was admitted in evidence as Exhibit EE.

In observance to the rules of this Court, the Defendants filed their final written address dated 26/09/2019 wherein counsel on its behalf formulated four issues for Court’s determination thus:

Whether in view of the allegations of gross misconduct levelled against the Claimant, and the claimant having been offered the opportunity by the Defendants to exonerate himself without success, the Defendants are entitled to dismiss the Claimant.

Whether the publication by the Defendants in the newspaper giving notice to the effect that the Claimant is no longer under their employment constitutes libel and that the defendants thereby liable to be compelled by an order of this court to tender a written unreserved apology to the Claimant and also to be published in Nigerian Observer or any Newspaper or media at all.

Whether the claimant is entitled to outstanding salaries from March 2011 when he was purportedly suspended until judgment is given and executed.

Whether the defendants are not entitled to debit the Claimant’s salary account no. 0225357010 with the 2^nd Defendant for repayment of his outstanding loans and whether such debiting of his account by the Defendants is illegal and infringement on the right of the Claimant.

One issue one, learned counsel posited that in view of the allegations of gross misconduct bordering on fraud leveled against him and having been offered the opportunity by the defendants to exonerate himself, which opportunity he failed to avail himself of, the defendants are entitled to dismiss him and as such he will not be entitled to the reliefs being sought by him. He cited in support the cases of Bisong v. UNICAL [2015] LPELR -25745 (CA); Ntewo v. University Of Calabar Teaching Hospital [2013] LPELR-20332 (CA). He urged the Court to resolve issue one in favour of the Defendants.

On issue two, counsel submitted that the said publication by the Defendants in the newspaper giving notice of the fact that the Claimant is no longer in their employment does not constitute libel. Counsel in that regards stated that the onus is always on the Claimant to prove or demonstrate that the words he complained of were defamatory or that they conveyed a defamatory imputation. He relied on the cases of Ebong v. Udoh [2004] LPELR 23447 (CA); Onyejike v Anyasor [1992] 1 NWLR (PT.218) 437; It is counsel’s contention that the Claimant has failed to show how the publication has injured or maligned his reputation, especially that there is nowhere in the said publication where he was alleged to have committed any wrong other than giving notice to the general public that he is no longer in the employment of the Defendants. Counsel urged the Court to so hold.

On issue three, counsel stated that the Claimant is not entitled to any outstanding salaries from March 2011 when he was suspended as he did not work for the Defendants during the said period. He cited the case of Nwafor v. Anambra State Education Commission [2017] LPELR – 42026 (CA) where it was held thus:

“An employee is entitled to wages and salaries/allowances during the period of his or her lawful engagement in service. No employer is under any obligation to pay salaries/wages/allowances to an employee who has not worked for the period of his employment. For example, a dismissed employee can only claim emoluments he had worked for in the course of his employment”

Counsel urged the Court to resolve issue three in favour of the Defendants.

On issue four, counsel contended that money in the claimant’s account was deducted to offset his outstanding loan repayment with the 2^nd Defendant without further corresponding credits. He submitted that the Defendants are entitled to recover from the Claimant loan granted him in the course of his employment and have therefore not violated any right of the Claimant by deducting same from his account. He cited the case of Gorkeens Ltd & Anor v. Zenith Bank [2017] LPELR -43170 (CA)

Counsel submitted that where the dismissal of an employee is based on gross misconduct as in this case, the employee is not entitled to notice or salary in lieu of notice. In support is the case of Ekunola v. CBN [2013] 15 NWLR PT 1377 PG 224 where the Supreme Court held thus:

“Where his dismissal is founded on the allegation of gross misconduct, the appellant is not entitled to any notice or salary in lieu of notice as clearly provided in Exhibits ‘A’ and ‘D’. And it would be wrong in law to make any awards to him in these regards”

Counsel urged the Court to dismiss all the Claimant’s Claim in their entirety.

The claimant on the 30^th of December, 2019 filed his written address and counsel on his behalf raised six issues for the Court’s determination;

Whether the defendants’ defence of their suspension and dismissal/termination of the claimant’s employment base on alleged falsification, forgery and unauthorized deduction from customers’ accounts by alleged fraud were not criminal allegations that needed to be proved beyond reasonable doubt.
Whether the defendants’ defence of their suspension and dismissal/termination of the claimant’s employment base on alleged falsification, forgery and unauthorized deduction from customers’ accounts and fraud which are criminal allegations were proved beyond reasonable doubt.
Whether the proceeding at the defendants’ disciplinary committee that look[sic] into the allegation of falsification, forgery of Mr. Babatunde Gbewesa’s signature and the unauthorized deduction from defendants’ customers’ accounts by the claimant was not fraught with irregularities and the claimant denied fair hearing.
Whether the evidence of the defendant’s witness who did not have personal knowledge or personally witnessed the alleged falsification, forgery and unauthorized deduction from customer’s account and fraud and who was neither a member of the defendant’s disciplinary committee nor witness the proceeding at the disciplinary committee is not tantamount to hearsay evidence.
Whether the suspension and subsequent dismissal/termination of the claimant’s employment and twice publication in the Nigerian Observer of the claimant’s dismissal/termination of his employment was not done out of mischief and malice as due process was not followed and it is not provided for in the sanction grid of the defendant but done by Mr. Babatunde Gbewesa who had personal issue with the claimant and who had accused the claimant of biting the finger that fed him.
Whether the defendants have the right to withdraw money from the claimant’s account and close same without the claimant’s consent.

On issue one counsel submitted that the allegations leading to the suspension and eventual dismissal of the claimant are all criminal offences which ought to be proved beyond reasonable doubt by the defendants. He urged the Court to hold so.

On issue two, counsel argued that the defendants have failed to prove beyond reasonable doubt the allegation levied against the claimant to warrant his suspension and eventual dismissal. He cited sections 125 and 131 of the Evidence Act, 2011and also relied upon is the case of Mr. Ikechukwu Ojeh v Corporate Affairs Commission [2010] ALL FWLR (Pt. 542) pg 1725 @ ratio 2. Counsel stated that though the defendants were not able to prove the allegation of falsification and forging of documents with which the claimant debited the defendant’s customers’ accounts as alleged by the defendants, the claimant was able to prove to the Court that he did not falsify or forge Mr. Babatunde Gbewesa’s signature or any other employee’s signature by tendering exhibits OO4 and OO5 which has all the signatories of the authorized persons. Counsel urged the Court to resolve two in claimant’s favour.

On issue three, counsel stated that the defendants’ procedure for suspension and dismissal of the claimant did not pass the applicability and test for fair hearing as enshrined in the Constitution. He cited the cases of Pan African Int Incorporation & 2 ors v Shoreline Liftboats Ltd & 1 Ors [2010] All FWLR (Pt 524) p.56; Miss Yetunde Zainab Tolani v Kwara State Judicial Service Commission & 3 Ors [2009] ALL FWLR (Pt. 481) 880. He submitted that the defendants’ disciplinary committee did not allow the claimant to defend himself, interrogate his accuser, Mr. Babatunde Gbewesa and confront him with the documentary evidence exhibit OO4 and OO5 and the refusal of the defendants to make the proceedings at the disciplinary committee available to the Court even when they were put on notice to produce same and also the refusal to entertain the appeal of the claimant after he was hurriedly issued a dismissal letter vide his email shows that he was not afforded fair hearing. He urged the Court to so hold.

On issue four, counsel submitted that from the deposition of the DW that he was not a member of the loan recovery committee or a member of the credit risk management CRM or a member of Mid-west region or a staff in the Ugbowo Branch of the defendants where the alleged falsification and forgery took place therefore he submitted that DW evidence is hearsay. He cited Sections 126, 37 and 38 of the Evidence Act, supra.

On issue five, it is counsel position that claimant’s suspension was initiated and executed by Mr. Babatunde Gbewesa. He stated that the insider’s abuse of the defendants’ cash advance policy as done by Mr. Babatunde Gbewesa and others was corroborated by the claimant’s witness CW2 Henry Ifenedo. That Mr. Babatunde Gbewesa masterminded the suspension and dismissal of the claimant for fear that he will expose his misdeeds or abuse of cash advance policy of the defendants. Counsel stated that claimant’s suspension was done contrary to Exhibit OO12 Article B (3)(4)(iv), Article 6 & 7 of exhibit OO12 and Paragraph 7 ILO Recommendation 166 (recommendation 1982, No 166) exhibit OO14. It is counsel submission that the publication of the dismissal of the claimant was out of malice and mischief of Mr. Babatunde Gbewesa as it was not provided for in Exhibit OO12. He urged the Court to so hold.

On issue six, counsel in response to the defendants’ paragraph 13 of DW statement on oath argued that the said monthly loan repayment taken and the withdrawal slip or cheque are not before the Court for verification of the defendant’s defence to the tampering of the claimant’s account. That also they are not reflected in the claimant’s ‘doctored account’ tendered. He submitted that the evidential obligation is on the defendants to prove that they debited the claimant’s account to service his loan and that the claimant did some withdrawal himself which led to the closure of the claimant’s account were not discharged by the defendants and it offends Section 131 of the Evidence Act, supra. He urged the Court to so hold.

Having carefully considered the processes filed by both parties to this suit, the documents tendered in evidence before this Court, the testimonies of witnesses and the written submissions of both counsel on the divide in support of their cases, it is my in my calm view that the issue that will best determine this suit is Whether or not the claimant has proven his claims.

First and foremost, before delving into the crux of this suit, it is needful for the Court to state that the learned claimant’s counsel objected to the admissibility of exhibit EE during trial; that is the claimant’s statement of account on the grounds that the alleged fraud occurred in 2009 and 2010 and the statement of account is from January 10, 2011- 29^th April, 2015, to him that is not the true reflection of the claimant’s financial status. Learned defence counsel in response stated that the statement of account is the true reflection of the claimant’s statement. The Court urged parties to further address the Court as to weight to attach to the document in their final written addresses, I must say that none of the parties in their respective submissions addressed this issue further. What it means is that the defendants have by their action abandoned their objection to same. However, in the interest of justice I will address the issue raised by the defendants during trial. A perusal of exhibit EE discloses that the claimant’s statement of account was for the period of January, 2011 to April, 29 2015. From the amended statement of fact of the claimant it equally reveals that the cash advance transaction began from 2009 when the Central Bank of Nigeria came up with the policy to ensure all banks depositors’ funds are secured till 2011 when the claimant was dismissed. What is the propriety of Exhibit EE before this Court, is it relevant or irrelevant? It is settled law that relevancy is the precursor to admissibility and for a document to pass the test of admissibility, it must first of all be relevant in all intent and purposes to the facts in issue and must be pleaded. See the cases of Elder Dr. Friday Sani v. Kogi State House of Assembly & Ors [2019] LPELR- 46404SC; Olojede & Anor v Olaleye & Anor [2012] LPELR 9845 CA; Oyebode & Anor v Gabriel &Ors [2011] LPELR 8693 CA. I find from the perusal of the document that it is relevant as it seeks to establish the case of the defendants with regards to the claims against them. The claimant has not shown to this Court how this document was tempered with by the defendants. The document has for all intent and purposes satisfied the rules of the Evidence Act on Admissibility hence it is on that basis that I discountenance the argument of the learned claimant’s counsel as lacking in merit. Exhibit EE still forms part of the record of this Court. I so find and hold.

Now, to the gravamen of this suit, it is claimant’s contention that his purported suspension and dismissal is wrongful. To the defendants, the claimant was using their cash for his private purposes and not returning same hence his suspension which was in line with the bank’s policy. They also argued that they set up a disciplinary committee to investigate the action of the claimant after which he was dismissed. The law is that Suspension is an aspect of the discipline of a staff by an employer and by Imonikhe v Unity Bank Plc [2011] 12 NWLR (PT.1262) 624 SC AT 649, an employer has the right to discipline any erring employee in the interest of the organization or institution. See also Adekunle v UBA Plc [2016] LPELR 41124 CA. Suspension cannot be questioned only because the employee was not given notice of any allegation against him and opportunity to defend himself. See Yussuf v. VON Ltd [1996]7 NWLR, (PT. 463.) P.746 CA. The effect of suspension the court in NEPA v Olagunju [2005] 3 NWLR (PT 913) 602, held that it may be wrongful, if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. In other words suspension must be in compliance with the condition governing the employment relationship. By exhibit OO12, id est the FCMB Disciplinary Process and Sanction Grid; paragraph D 5, 6 and F at pages 4 and 5 provides for suspension thus;

Suspension –issued where a staff is suspected of serious misconduct and his/her presence in the workplace is considered undesirable. The staff is then placed on suspension until investigations have been concluded.

6 Staff shall be entitled to half pay during any suspension period unless otherwise advised. Where however suspension is meted out as a disciplinary action after the establishment of misconduct, suspension would be without pay.

Remuneration of Staff under Suspension;

All suspensions shall be without pay (unless otherwise stated in suspension letter) [Highlight is mine for emphasis} until all investigations have been concluded and the DC recommendation has been implemented.

Withheld salaries shall however be refunded if the case is determined in favour of the staff.

…….

Staff who is dismissed from the Bank’s employment shall forfeit all accrued benefits in line with the banks personnel policy.”

The law is long settled that parties are bound by the terms of their contract and same enforceable. See the cases of MTN Communication Ltd v. Corporate Investment Communication investment Ltd[2019] LPELR-47042SC; BPS Construction &Engineering Co. Ltd v. FCDA [2017] LPELR-42516 SC, CBN v. Interstella Communication Ltd &Ors [2017] LPELR-43940 SC. It is equally trite as held in the case of Sheriff & Anor v PDP & Ors [2017] LPELR 41805 CA, that the literal rule of interpretation presupposes that words used in a statute/document should be construed in their usual grammatical sense or normal and ordinary meaning. The claimant was suspended on March, 15^th 2011 vide exhibit OO7 for one month starting from the period of 15^th March to April, 15^th 2011 based on the report from the Bank’s control and compliance Group of an alleged forgery and unauthorized debit to a customer’s account. It is apparent by exhibit OO 12 that the defendants have the right to suspend its employees when necessary and without pay albeit after a misconduct has been established against the claimant or where it is stated in the letter of suspension that suspension is to be without pay as in this instant. In this present the claimant was issued with a query on the 4^th of March, 2011 by his supervisor on forgery of his signature (Babatunde Gbewesa) to debit the account of a customer in the sum of N21, 000 and on the 7^th and 8^th of March, he received other queries from one Peter Njotea and Kingsley Ofagbon on the ground of unauthorised expenses and debits to customer’s accounts and then on the 15^th of March, 2011 he was suspended for a month without pay. The suspension is hereafter captured for ease of reference thus-

March 15, 2011

Anthony Obemeata

C/o First City Monument Bank Plc

Ugbowo Branch

Benin

Edo State

Dear Anthony

SUSPENSION FROM DUTY

We have received a report from the bank’s Control; and Compliance Group of an alleged forgery and unauthorized debit to a customer’s account.

Management has resolved that you proceed on one month suspension from duty without pay to allow for proper investigation [underlines is mine for emphasis] OF THE ALLEGATION. THE SUSPENSION IS WITH EFFECT FROM March 15, 2011 and you are to resume on Friday April 15, 2011.

The period of suspension is subject to extension should the need arise.

Please hand over your responsibilities to your supervisor immediately.

Yours faithfully,

FIRST CITY GROUP LIMITED

KELECHI ANUKAM ESTHER AKINNUKAWE

HEAD, EMPLOYEE RELATIONS HEAD, HR SERVICES

It is plain in the above letter of claimant’s suspension that, he was suspended without pay as highlighted in the above letter. Paragraph 6 of exhibit OO12 states that an employee under suspension shall be entitled to half pay, unless otherwise advised, paragraph F of the same exhibit titled “Remuneration of staff under suspension” specifically states that all suspensions shall be without pay( unless otherwise stated in suspension letter). It stated further that withheld salaries shall be refunded if the case is determine in favour of the staff. Would it then be right to make a finding of wrongful suspension against the defendants, in view of exhibit OO12 vis a vis his letter of suspension? As clearly stated supra, it is plain on claimant’s letter of suspension that his suspension was without pay. Consequently, I find that claimant’s suspension is not wrongful. I so find and hold.

Next poser is, is the claimant’s dismissal wrongful? The claimant’s grouse is that his dismissal is wrongful. The Claimant in proof of his employment relationship with the defendant tendered his offer of employment (Exhibits OO and OO1, dated March 2, 2008, September 5 2006 and February, 1 2009); he also tendered his condition of service governing his employment with the defendants (Exhibit OO12) which is the solemn/written intention of the parties binding on both of them. The law is notorious that the onus of proof lies on the claimant who asserts a fact to discharge that burden to satisfy the Court by leading cogent, credible and substantial evidence with a view of establishing his case. See the cases of MTN v. Cooperate Communication’s case supra; Arigbabu v. Oyenuga[2019] LPELR-47381CA; Inua v FBN Plc [2016] 2 NWLR (Pt. 1495) 89 CA; Nwadinobi v M.C.C (Nig) ltd [2016] 1 NWLR (Pt. 1494) 427 CA. It is the claimant’s position that the eventual dismissal of his employment by the defendants is wrongful on the reason that he was not granted fair hearing by the defendants to state his own side of defence and to him a contravention of his conditions of service and paragraph 7 of the ILO Recommendation 166 (recommendation 1982, No 166). The defendants in response stated that he was invited before its disciplinary committee and was afforded fair hearing where he neither denied the forgery nor furnish specific responses to the queries having been offered the opportunity by the defendants to exonerate himself, which opportunity he failed to avail himself of, therefore, they are entitled to dismiss him and he will not be entitled to the reliefs being sought by him. The position of the law is that ordinarily a master is entitled to determine its relationship with its servant for good or bad reason or for no reason at all, provided the terms and conditions of employment is observed. Authorities are pretty clear on the power of an employer to dismiss an employee. An employer has the right to dismiss its employee even if that is not specifically stated in the contract of employment. A dismissal cannot however, be justified in the absence of adequate opportunity offered to the employee to explain, justify or else defend the alleged misconduct and before an employer can dispense with the services of his employee under common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal and this could be in the form of issuance of query, even where the allegation against the employee involves accusation of crime. See the cases of Odibo v. First Bank [2018] LPELR 46628 CA; Mr. James O. Avre v. Nigeria Postal Service [2014] 46 NLLR (PT. 147) 1; Imonikhe v. Unity Bank Plc [supra]; FBN v Akanji [2017] LPELR 43555 CA; Arinze v First Bank [2004] 12 NWLR (Pt 888) 663; [2004] LPELR 551 SC. Parties are on the same page on the fact that the claimant was issued queries and even appeared before a disciplinary committee. The claimant having admitted to the fact that he was issued queries and appeared before a disciplinary panel, no further evidential proof of the facts will be required. Calling a witness to testify to the fact already admitted will amount to surplusage which will not really be necessary owing to the principle, that admitted fact is taken as established and forms part of agreed facts of the case. See the cases of Emeka v Okoroafor & Ors [2017] LPELR 41738 SC. This to me is harmonious with the principle of fair hearing in this kind of employment relationship. Though the claimant alleged that he was not given the opportunity to confront his accuser. That in itself cannot vitiate the procedure. As stated earlier, an employer reserve a right to hire and fire without given any reason, but where it does, it must justify same. Differently put an employer must canvass evidence in prove of its reasons for dismissing its employee. In the instance case, the defendants by exhibit OO9 dated 19^th of July, 2011 dismissed the claimant as a result of the following;

“1. The signature of your supervisor was forged by you in order to collect cash for your private use and claimed that the fund were for payment to a law firm working with the regional recovery team in respect of loan recovery assignments.

You forged the e-mail approval of your supervisor in order to get approvals for funds for your private use”

This principle of law is notorious that he who assert must prove same. Section 131 of the Evidence Act, 2011 and the case of Akhigbe v Enagbonmuna [2019] LPELR 46466 CA; Liyafa v Kyauta [2018] LPELR 45267 CA lends credence to it. The defendants have made heavy weather of allegations of forgery and falsification of signature of his supervisor one Babatunde Gbewesa for his personal use and have indeed dismissed him on that allegations. They have however, not by any piece of evidence proven same. I say so on the reasons that exhibit OO4 which is the Expenses/Cash Advances Retirement Form reveals that one Tunde Gbewesa approved at various dates id est, the 24/4/11, 17/2/11, 23/2/11, 18/2/11, 21/7/11 cash disbursements inclusive of the cash payments to a law firm in the sum of N50, 000 and N2,500 on the 24/4/11 and 17/2/11 respectively. A comparison of the signatures of the said Tunde Gbewesa disclose no disparity but a similarity of the signatures therein in the said exhibit OO4. The defendants did not at any time subject the signature to a forensic examination to decipher the truth nor did it call the said Tunde Gbewesa as a witness to substantiate its position that the signature on exhibit OO4 was not his. DW admitted under cross examination that the allegations of forgery and falsification of signature are both criminal offences and a misconduct. He also testified that they did not report the claimant to the Police. DW would not equally know where the report of the disciplinary panel is, Also the email approval alleged to be forged by the claimant is not before the Court to authenticate defendants’ reason for dismissing the claimant from their establishment. It is clear that the claimant was victimized by the defendants through his predator Tunde Gbewesa his supervisor as evidently seen vide exhibit OO6 dated 18/4/11 where in Tunde Gbewesa wrote to the claimant thus;

Anthony,

See attached. You were promoted but you bite the meat you could not chew. I was ready to elevate you after your studies but you played with it now the results and consequences.

Hope you have you[sic] defense prepared them[ sic]. Good luck.”

Following from the foregoing, it is plain and without any shred of doubt that the defendants did not justify and substantiate the reasons for the dismissal of the claimant, and also found obviously that claimant was victimized and shown the way out. I therefore, hold that the eventual dismissal of the claimant is wrongful and thus set aside. Consequent upon the fact that the Court cannot foist claimant on the defendants in this case, I convert claimant’s dismissal to termination. I so find and hold

The claimant claims his outstanding salaries at the rate of N55, 500.00 per month from March, 2011 when he was purportedly suspended until judgment is given and executed. The claimant was rightfully suspended in March, 2011, recalled in April, 2011 and wrongfully dismissed by a letter dated 19^th of July, 2011 but received on the 20^th of August, 2011 vide his mail. A look at exhibit EE reveals that the claimant was last paid a salary of N19,796.54 on 22^nd March 2011, which I doubt is his monthly salary. There is nothing evincing that he was paid for April till August 2011 when he was wrongfully dismissed. The defendants by their written address have stated that he is not entitled to any sum having not worked for the said period he claims monetarily. The claimant by paragraph 25 of his amended statement of claim stated that “he resumed on April, 15 2011, he was asked by Mr. Babatunde Gbewesa not to resume without giving him a letter extending the suspension or the reason he should not resume after the expiration of his initial suspension” the defendants in response stated that “…any member of staff on suspension or vacation does not have access to his official email box and communication with such staff through his or her personal email box. Since the claimant had no direct access to his bank’s email address, being on suspension at the time, his letter of dismissal could not be communicated to him directly but same communicated to him through supervisor. Not only was his letter of dismissal sent to the claimant through his supervisor via email, same was also sent to him through his personal email box.”

It is visibly clear that the claimant after his suspension made attempt to resume work by approaching his office but was refused access to his office and working tools. Would it be right to hold that the claimant did not work and thus not entitle to salary? Certainly No! this is because he was ready to work but was constructively locked out and was eventually dismissed. The import of this is that the claimant is entitle to be paid his salary and emolument prior to his dismissal by the defendants. The law is now trite that whether or not dismissal or termination is wrongful, all earnings in salary or other entitlement of an employee prior to dismissal must be paid by the employer. See Udegbunam v. FCDA [2003] 10 NWLR(PT829)487SC; [2003] LPELR 3291 SC; Underwater Eng. Co. Ltd v. Dubefon [1995}6NWLR(PT400) 156SC; Mrs Titilayo Akinsanya v. Coca-Cola Nig. Ltd & Anor [2013] 18NWLR (PT.1386) 225CA. What this means is that the claimant is entitled to his salary for the months of April to July, 2011 when he was wrongly dismissed, which is the sum of N222,000.00. Accordingly, I find and hold that claimant is entitled to be paid the sum of N222,000 as arrears of his salary 4 months’ salary as his accrued entitlement.

It is claimant’s contention that the debiting and closure of his salary account no account 0225357010 with the 2^nd defendant without his consent is illegal and an infringement on his right, and the 2^nd defendant should refund him the credit balance in the account of about a hundred thousand before the 2^nd defendant debiting and closure of the account. The claimant by paragraph 26 of his amended statement of facts has averred to how the defendant debited his account and closed same without his prior knowledge or notice. I am not unmindful of the decision of the Court appeal in the case of Oak Pensions Ltd v. Olayinka [2017] LPELR 43207 CA; [2018] 12 ACELR 85 at 123 where the Court held that what the employee is entitled to in damages is what the employee was entitled to in terms of payment of salary in lieu of notice. This position I believe has changed in view of the recent decision of the Court of appeal in Promasidor Nig. Ltd & Anor v. Asikhia [2019] LPELR-46443CA; where the Court per Ogakwu JCA, held that the employee in that case is entitled to damages for malicious falsehood different from the salary in lieu of notice for wrongful termination. Following Promasidor’s case supra, in the case of Falowo Rowland Oluwagbenga v. Ondo State Judicial Service Commission & 3 Ors, Unreported Suit No NICN/AK/11/2018, a judgment delivered on 5^th February, 2020, where the sum of N1,000,000.00 was awarded as exemplary damages. In Emana Ibor Edet v. Fidelity Bank Plc Unreported suit No NICN/LA/276/2014, judgment delivered on 17^th December, 2019, this Court, Per the Hon, the President of NICN, Hon. Justice B.B. Kanyip, awarded the sum of N6,756,750.00 for the unauthorized debiting of the claimant’s account and deprivation of access to her account as well. I find that the situation in Emana’s case is in all fours with this present, it is in that respect that I find the appeal Court decision in Promasidor and Emana’s cases supra, persuasive. Consequently, I find that claimant is entitled to damages for the infringement of his right to access his account and debiting of same without his consent. Accordingly I award the sum of N1,307,500 as his two years’ salary, this calculation is based on claimant’s annual salary of N653,750.00 as per exhibit OO1. I so find and hold.

Regarding claimant’s relief C, if I may ask is claimant’s employment subsisting as to entitle him to payment of his salaries up to the date of judgment? I do not think so; this in view of the decision of the Court of Appeal in Batelitwin Global Services Limited v. Mr. John Muir unreported Appeal No.CA/L/566/2013, the judgment of which was delivered on 3^rd November 2016, and Oak Pensions Ltd v. Olayinka supra, all held that an employee cannot be paid his salaries up to the date of judgment. It is in consequence that I find and hold that claimant is not entitle to payment of salaries from the time of his suspension till date of judgment. Accordingly, Claimant’s relief C fails and thus dismissed.

He also claims the sum of N10, 000,000.00 (Ten Million Naira) as general or exemplary damages for the wrongful suspension, dismissal and the libelous publication against him by the defendants. It is the law that damages are calculated to recompense for breach of contract. The primary purpose of an award of damages is to compensate the claimant/aggrieved party for the damages, loss or injury he has suffered. The guiding principle is restitutio in intergrum. This principle envisages that a party who has been wronged by the act of the defendant must be put in a position in which he would have been if he had not suffered the wrong for which he is now being compensated. Differently put, the essence of awarding damages to an aggrieved party is to restore him as far as money can to the position he would have been if there had been no breach or injury. See Cameroon Airlines v. Otutuizu [2011] 1 – 2 SC (PT. III) 200. It is clear by exhibit OO dated 1^st February, 2009 that either party may terminate the employment by giving one month notice or payment of one month salary in lieu of notice. Although the claimant is not asking for the payment of salary in lieu of notice, the consequence of his wrongful termination of employment is in award of damages in lieu of notice. Having reversed the claimant’s wrongful dismissal to termination, it is therefore, the entitlement of the claimant to be paid salary in lieu of notice. Now, by exhibit OO claimant’s letter of employment at paragraph 6, that the claimant is to be paid one month notice or payment of one month salary in lieu of notice. It is in consequence of wrongful termination of claimant’s employment that I find and hold that claimant is entitled to the sum of N54, 479.2 as his one month salary in lieu of notice. I so hold.

Claimant prays to the Court to compel the defendants to tender a written unreserved apology to him and also to be published in Nigerian observer within 14 days of the judgment for the libelous publications by the defendants. Parties joined issues on the claim of defamation/libel by the claimant, to the claimant, the publication of his name in the Nigerian Observer publications disclaiming him as its staff is calculated to dent his image and prevent him from securing employment in any financial sector in future thus derogatory and libelous thereof. In response, defendants posited that the publication of his name in the Newspaper was made in the normal course of business of the defendants’ sequel to his dismissal. By Medical & Health Workers Union of Nigeria v. Dr. Alfred Ehigiegba [2018] LPELR-44972CA; where the Benin division of the Court of appeal held that the NICN, has jurisdiction over defamation arising from the work place and the matters incidental thereto or connected with phrase used in Section 254C(1) of the 1999 Constitution as amended. Now, the question here is has the claimant proven the case of libel or defamation against the defendants? By Omika v. Isah [2011] LPELR-4564CA, the law is well settled that one basic ingredient of defamation, whether libel or slander, as in the instant is publication. In order to succeed the claimant must prove the fact of publication. In other words the claimant is under a burden to prove that the defamatory matter was published to a 3^rd party. And the law requires that the 3^rd party must not only be named but must be clearly identifiable and identified. It is plain on record that the claimant pleaded the publication in paragraph 37 of his amended statement of facts and at paragraph 38 he pleaded the particulars of libel. He equally tendered the Observer Newspaper that published the libelous notice i.e. exhibit OO15. It is also plain on record that the publication referred to him and it was published by the defendants to the general Public. If I may ask, is the publication false? I find from the reading of the Publication that it is a disclaimer, in other words the defendants informed the public that claimant is no longer in their employment. I find this publication to be the true position of things as the employment of the claimant is determined by the defendants wrongly or not. The fact remains that he is no more in the defendants’ employment. Again was the publication of his name in the Nigerian Observer publications disclaiming him as his staff is calculated to dent his image and prevent him from securing employment in any financial sector in future or not? II find this also to be false given the fact that the claimant is no longer working with the defendants’ bank. It is in the light of all stated supra on this issue that I find and hold that claimant’s relief D and E are lacking in merit and thus dismissed.

In all, I find that claimant’s case succeeds in part hence I make these declarations and orders as follows-

That the suspension of the claimant is not wrongful.
That claimant’s claim b succeeds, the claimant is entitled to be paid the sum of N1,307,500.00
That claimant is entitled to the sum of N222, 000.00 as 4 months arrears of salary from April to July 2011.
That claimant is entitled to the sum of N54, 479.2 as a month salary in lieu of notice.
That claimant’s claim D and E fail.
All judgment sum is to be paid within 30 days of this judgment, failing which it shall attract an annual interest of 10% of the total judgment sum.

No award as to cost

Judgment is entered accordingly

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge