Alozie Chimezirim Manasse -VS- Sterling Bank Plc

IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI

DATE: SEPTEMBER27,2018

SUIT NO.: NICN/LA/426/2015
BETWEEN

ALOZIE CHIMEZIRIM MANASSE CLAIMANT

AND

STERLING BANK PLC DEFENDANT

APPEARANCE

Akobundu Ehiemere for the Claimant

Adisa Oluwole for the Defendant

JUDGMENT

By General Form of Complaint and the accompanying originating process dated and filed on August 25, 2015, the Claimant commenced this action against the Defendant and by an amended Statement of Facts dated and filed on February 27, 2017, the Claimant claimed for the following reliefs:

A Declaration that the suspension of the Claimant is wrongful, unwarranted and unlawful.

A Declaration that the Claimant’s dismissal is wrongful, malafide, unlawful and a contravention of the Defendant’s Handbook.

A Declaration that the act of the Defendant of setting the law against him, leading to his arrest and being carried to his residence and searched by the Nigeria Police in the presence of his family members and neighbours, constitute torture, inhuman treatment and injury to his person.

An Order compelling the payment of the salaries and allowances which the Claimant is entitled to during the period of his suspension from the 13th day of May 2015 to the 18th day of June 2015.

An Order compelling the Defendant to pay the salaries, allowances and benefits of the Claimant from the date of dismissal 18th day of June 2015 till the determination of this suit.

A claim for the sum of ?800, 000 representing his leave Encasement from Equitorial Trust Bank and Gratuity at ?2, 000, 000, Entitlements (25% of the Gross Pay) from Sterling Bank as attached to the last promotion letter in the sum of ?1, 404, 228.84 and Gratuity at N2, 000, 000.00

Compensation in the sum of ?300, 000, 000. 00 (Three Hundred Million Naira) being general damages and interest at the rate of 21% interest till the entire sum is liquidated.

The cost of this action at #10,000,000.

Having been served with the originating process, the Defendant entered appearance and filed its defence process on the 10th November, 2015 which it later amended pursuant to an Order of Court made on the 24th April, 2017. The Claimant also consequently filed his Reply to the Amended Statement of Defence accompanied by an additional written statement on oath, list of additional documents and copies of the additional documents dated the 5th July, 2017.

The Claimant opened his case on 7th February, 2018 and testified as CW1 by adopting his Witness Statement on Oath, consequently the Defendant opened its defence on the 21^st of March, 2018 and called a sole witness; DW1 who also adopted his witness deposition on oath sworn.

THE CASE OF THE CLAIMANT

Following the merger of Equitorial Bank with the Defendant, the Defendant offered the Claimant employment as a Senior Executive vide a Letter of employment dated 26^th October, 2011 and subsequently, the Claimant was promoted to the position of Banking officer vide a Promotion letter dated the 30^th April, 2013. The Claimant through a query dated the 11^th day of May, 2015 was informed by the Defendant through a query that his Bank Access had been used to conduct an enquiry on a customer’s account (National Automotive Council) at about 8:48pm on the 10^th of April, 2015 at the Defendant’s branch in Ibadan, Oyo State. The Claimant denied same and in addition stated that he did not give his Bank Access to anyone to conduct any unauthorized enquiry on the account of the National Automotive Council nor had he performed a transfer in the sum of three million naira (N300,000,000.00) from the account of the National Automotive Council or any money at all. On the 12^th day of May 2015 the Claimant was arrested by some Police officers alongside one of his Colleague Adetola Oluwakemi at the Defendant’s Branch in Ikorodu, Lagos State on the orders of the Defendant. The arrested staff were subsequently taken to the Defendant’s head office from where they were transferred to the Economic and Financial Crimes Commission’s office at Ikoyi, Lagos State. Adetola Oluwakemi was released on same day-12th day of May 2015 whilst the Claimant was detained for three days and released on the 15^th day of May 2015 after satisfying his bail conditions. The Claimant was subsequently dismissed from the services of the Defendant vide a letter dated 18^th day of June 2015 on the allegation by the Defendant that the Claimant’s access had been used to conduct an unauthorized enquiry on the account of National Automotive Council; a client of the Defendant, hence this suit.

THE DEFEDANT’S CASE

The case of the Defendant is that the Claimant’s Core Banking Access was used to conduct an unauthorised enquiry on the account of National Automative Council on April 10, 2015 which led to the fraudulent transfer of the sum of N361, 200,000.00 from the account on April 30, 2015.To the Defendant, the Claimant failed to give a satisfactory account of why his user name and password had been used in conducting the unauthorised enquiry on the account in his response to the query issued to him by the Defendant nor during his subsequent appearance before the Defendant’s Disciplinary Committee.

Trial was concluded in the suit and the Court adjourned the suit for adoption of final written addresses. The Defendant’s final written address is dated and filed on 7^th May, 2018 while that of the Claimant is dated and filed 5^th June, 2018, the Defendant’s Reply on Points of Law is dated and filed on June 26, 2018.

THE DEFENDANT’S SUBMISSIONS

The Defendant raised 2 Issues for determination in its final written address thus:

‘Whether from the circumstances of this suit, the suspension and the subsequent dismissal of the Claimant from the employ of the Defendant is wrongful.’ and

‘Whether the Claimant has established his entitlement to his other reliefs as contained in the Amended Statement of Claim.’

On the first Issue, learned Counsel for the Defendant submitted that although the case of the Claimant is that his suspension vide Exhibit DWG; the Suspension Letter dated 13/05/15 is wrongful, the Claimant by his averment in paragraph 19 of his Amended Statement of Facts had .made representations to the effect that on the 11^th of May, 2015, the Defendant had informed him through Exhibit DWG that the Claimant’s Bank Access had been used to conduct an unauthorized enquiry on a customer’s account in the name of National Automotive Council. Learned Counsel further submitted that by paragraph 14 of the Claimant’s Amended Statement of Facts the Claimant had also averred that he did not transfer the sum of N300, 000,000.00 from the account of National Automotive Council or any customer of the Defendant but that this fact is controverted by paragraph 7 of the Defendant’s Amended Statement of Defence where it is averred that the unauthorized enquiry on the said account was made through the User ID and Password of the Claimant leading to the fraudulent transfer of the sum of N361, 200,000.00 on the 30th April, 2015. Learned Counsel further submitted that by Exhibit DWD; petition dated 4th May, 2015, the Defendant had written to the Chairman of the Economic and Financial Crimes Commission requesting for the investigation of the fraudulent transfer of the sum of N361,200,000.00.

On whether the fraudulent transfer took place, learned Counsel contended that there is no question or iota of doubt that the fraudulent transfer took place in the Defendant contrary to the evidence of the Claimant under cross-examination when he gave evidence to the effect that he was not aware of the fraud. On the foregoing submissions learned Counsel posited a question on ‘whether an employer who lost such humongous amount of money can place every employee it suspects on suspension?’ and proceeded to answer same by submitting that the answer to this question can be found in Exhibit CWL-L31; the Staff Handbook tendered by the Claimant which learned Counsel contends that by Chapter 11.4.1 of the said Exhibit it is provided on “Disciplinary Procedure for Major/Severe Offences’’ thus ‘‘(i) If indicted, you will be given a query from your Supervisor/Human Resources or Inspection Units and required to give responses. (ii) You may be required to go on suspension pending the final decision on the allegations leveled (iii) Once investigations have been carried out, you may be required to appear before a Disciplinary Committee if you have a case to answer…” Learned Counsel contended that paragraphs 10 and 11 of the Defendant’s Amended Statement of Defence, and the admission of the Claimant in his pleading and under cross-examination that he was served with Exhibit DWE have shown that the Claimant was inconsistent in his evidence under cross-examination on whether the Defendant placed him on suspension for the purpose of investigating the allegation. Learned Counsel further contended that the answers given by CW1 under cross examination coupled with the content of Exhibit CWG show that the Defendant placed the Claimant on suspension for investigating “some observed irregularities with respect to his activities at Branch’’. Learned Counsel also contended that by page 21 of Exhibit CWK-K40; a Report of the investigation the Defendant conducted on the fraudulent transfer of the sum of N361, 200,000.00 the Defendant had complied with the provision of Chapter 11.4.1 of Exhibit CWL-L31 when it placed the Claimant on suspension and on the foregoing learned Counsel submitted therefore that the Claimant cannot complain that his suspension is wrongful since Exhibit CWL-LW30 affords the Defendant the right to place the Claimant on suspension for the purpose of investigation where the allegation is a major one and on this learned Counsel cited the case of Amadiume v.Ibok (2006)6 NWLR (Pt.975) P158 @ 181-182 paras. F-C. where the Court of Appeal held thus: “It is well settled law that a master can suspend his servant when necessary. An employer can suspend his employees when necessary. That cannot amount to the breach of the servant’s or employee’s right. See Ayewa university of Jos (Supra). At page 144, Uwaifo, JSC had this to say: “The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety levelled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental right” In this instant case on appeal, it is clear that the essence of placing a servant on a compulsory leave, which is the same thing as a suspension from duty is to enable the master to investigate…”

Learned Counsel in paragraph 4.4. Of the Defendant’s address contended further that the dismissal of the Claimant was not wrongful and on this submitted that it is settled that he who asserts must prove when he cited the Court of Appeal case of Texaco (Nig.) Pls. v. Kehinde (2006) 6 NWLR (Pt.708)224. Learned Counsel also contended that the Claimant had pleaded an outdated Defendant’s Staff Handbook (Exhibit CWL-L31) and further contended that contrary to the Defendant’s Code of Ethical Conduct; Exhibit DWK-K54, the Claimant had claimed that his dismissal from the employ of the Defendant is malafide, wrongful and unlawful. On the foregoing learned Counsel asked ‘What then is the duty which the law places on the Defendant in disproving the assertion of the Claimant to the effect that his dismissal from the employ of the Defendant is wrongful?’ and in answering same cited the Supreme Court case of University of Calabar v.Essien (1996) 10 (PT.477) 225 @ 263 paras.E-F. Learned Counsel submitted that by the foregoing decision of the Supreme Court, an employer in justifying the dismissal of an employee on the ground of gross misconduct must establish the following: a. That the allegation was disclosed to the employee, b.That he was given fair hearing, i.e. rules of natural justice was followed, c. That disciplinary panel followed the laid down procedure if any and d. That the panel accepted the act after its investigation. Learned Counsel proceeded to extensively analyze individually each of the principles distilled from the University of Calabar v.Essien (supra) in relation to the case of the Claimant in order to establish that the Defendant did follow the procedure laid in Exhibit C8 in dismissing the Claimant.

On whether the allegation was disclosed to the employee.

Learned Counsel for the claimant contended that the Allegation made against the Claimant was disclosed to the Claimant as averred in paragraph 5 of her Amended Statement of Defence where it was averred that the Defendant had informed the Claimant through Exhibit DWE that the Claimant’s Core Banking Application Access had been used to conduct an unauthorized enquiry on a customer’s account in the name of National Automotive Council. Learned Counsel further contended that it was when the Defendant was not satisfied with the response of the Claimant as contained in Exhibit DWF that the Bank subsequently placed the Claimant on suspension vide Exhibit DWG to enable the defendant do a thorough investigation. Learned Counsel contended that by Pages 21-30 of Exhibit CWK-K40 particularly the content of the Report at page 26 at paragraphs 29, the Report had thus to say about the Claimant: “A review of the Enterprise Log Management System revealed that on 10 April, 2015 the profile of AlozieChimezirim, Service Manager (Back up) at Ikorodu branch viewed balance on the account of National Automotive Council 322/400638/1/1/0) on Banks at about 8:48pm using the function B39CUE3A (which is an enquiry used in checking customers ‘balances)”. Learned Counsel on the foregoing also referred the Court to paragraphs 30, 33 and 34 of the said Exhibit. It was further contended that the contents of paragraph 29 of Pages 21-30 of Exhibit CWK –K40 are the allegation which the Audit committee made against the Claimant which formed the basis of the Claimant’s referral to Disciplinary Committee by the Defendant vide Exhibit DWH which Learned Counsel contended is about the Claimant having viewed the account of the National Automotive Council balance through his access (ID and password). Learned Counsel contended further that the Claimant under cross – examination had given evidence that the Defendant alleged that his access had been used to check balance on the account of National Automotive Council on 10/4/15 at 8:45pm. On the foregoing, learned Counsel referred the Court to paragraph 11 of the Amended Statement of Claim and cited the case of Olamide v Zest International Hotel (2012) 26 N.L.L.R (74) 273, NIC at page 299, where Honourbale Justice F.I. quoted the Supreme Court judgment of Alhaji Abdullahi Baba v. NCATC (1991)5 NWLR (PT.192) 388 at 418 wherein it was held thus “where a panel set up by the employer has concluded its inquiry and made up its mind that any points had been prima facie made out which point to the fault of any employee, the employer must inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employee can lawfully use those points as basis for dispensing with his services.” Based on the foregoing, learned Counsel submitted that the Defendant had informed the Claimant of the allegation against him from the point he was served with Exhibit DWE up to the time he appeared before the disciplinary committee and urged the court to so hold.

On whether the Claimant was given fair hearing, i.e. that the rules of natural justice was followed.

Learned Counsel contended that the Claimant was availed the opportunity of being heard before his dismissal and submitted that it is in evidence that the Claimant was first queried over the allegation of having compromising his User ID and password which led to the fraudulent transfer of the sum of N361,200,000.00 from the account of the National Automotive Council to unknown accounts in other banks. Learned Counsel further submitted that following the Claimant’s unsatisfactory response to Exhibit DWE, the Defendant referred the Claimant to the Audit Committee which investigated the allegation against him and other persons and made a report found at pages 21 – 30 of Exhibit CWK –K40. Learned Counsel submitted that the Defendant referred the Claimant to the Disciplinary Committee thereafter which Learned Counsel contended the Claimant had admitted by the averments in paragraph 5 of the Claimant’s Reply to Statement of Defence.

The Learned Counsel concluded in this regard that the law is that what is admitted need no further proof and that by Exhibit DWH the Claimant had been invited before the Disciplinary Committee and that by the foregoing the Defendant followed the rules of natural justice by affording the Claimant the opportunity of being heard through Exhibits DWG and DWH and thereafter urged the court to so hold.

On whether the Disciplinary Panel followed the laid down procedure in dismissing the Claimant

Learned Counsel submitted that the procedure which the Disciplinary Committee was expected to follow is clearly spelt in Chapter 11 of Exhibit DWL-L30 and contended that the procedure is such that offences are classified into minor, major and severe offences. Learned Counsel submitted also that Breach of confidentiality; which is the allegation against the Claimant falls under the category of a severe offence and on this submitted that the fact of same had been averred to in paragraph 12 of the Defendant’s Amended Statement of Defence. Learned Counsel also contended that under cross-examination, it was the evidence of DW1 that the Claimant’s act of gross misconduct was a breach of confidentiality and on this Learned Counsel reproduced the provisions of Chapter 11.4.1 of Exhibit CWL-L31. It was further contended that the foregoing provision imposed a duty on the Defendant to first query an employee alleged of committing a severe or major offence before suspending and referring the employee to the Disciplinary Committee, Learned Counsel also reproduced Sub paragraphs iv and v of Chapter 11.4.1 of Exhibit CWL-L31 in contending the foregoing. Learned Counsel contended overall that it was upon the review of the decisions of the Disciplinary Committee that the Defendant’s Management resolved to dismiss the Claimant in line with Chapter 6.1.3 of Exhibit CWL-L31.

It was also submitted that the provisions of Exhibit CWL-L31 make reference to “offences” in the Defendant’s Code of Ethical Conduct and that by paragraph 25 of the Defendant’s Amended Statement of Defence, the Defendant had averred that its Disciplinary Committee recommended that the Defendant should dismiss the Claimant for his gross violation of the Defendant’s Code of Ethical Conduct with regards to the use of his Core Banking Application Access to conduct unauthorized enquiry on the account of the National Automotive Council. Learned Counsel also submitted that the Defendant had tendered the Code of Ethical Conduct as Exhibit DWK –K54 and reproduced clause 1.2 in his address.

To learned Counsel, the word ‘member’ as used in Clause 1.2 (ii) of Exhibit DWK-K54 includes the Claimant who was an employee of the Defendant at the material time and on this referred the Court to clause 2.0 (d) of Exhibit DWK-K54. Learned Counsel also submitted that the Defendant’s Disciplinary Panel followed the procedure contained in Chapters 6.1.3 and 11.4.1 of Exhibit CWL-L31 and cited the holding of the Court in Dornier Aviation Nig. AIEP Ltd v. Captain Tunde Oluwadare (2011)23 N.L.L.R (PT.66),CA P380 @ 403 paras E-G in urging the Court to hold the foregoing in favour of the Defendant.

On whether the Panel accepted the act after its investigation

Learned Counsel submitted that the Audit Committee of the Defendant accepted the allegation made against the Claimant of having compromised his access i.e. his User Id and Password by conducting an unauthorized enquiry on the National Automotive Account with the Defendant which led to the fraudulent transfer of N361, 200,000.00 from the said account. Learned Counsel also submitted that the report of the Audit Committee (Exhibit CWK-K40) on how the Claimant had compromised his access is contained at pages 26 and 28 of the said Exhibit which learned Counsel contended reads thus

“29. A review of the Enterprise Log Management System revealed that on 10 April, 2015 the profile of AlozieChimezirim, Service Manager (Back up) at Ikorodu branch viewed balance on the account of National Automotive Council 322/400638/1/1/0) on Banks at about 8:48pm using the function B39CUE3A (which is an enquiry used in checking customers ‘balances).

Alozie Chimezirim’s network profile was active on the network between 8:25pm and 9:17pm on the 10^th April, 2015. However, we could not establish the system being used, as the IP Address of the machine was not logged on the application.
From the enterprise Log Management System, we observe that the profile of Kemi Adetola was observed to have been used to attempt internal transfer from NAT account to other fraudulent accounts on the 10^th April, 2015 between 7:24pm and 8:51pm.
Another attempt was made to post internal transfers from NAT account into one of the fraudsters account between 7:04pm and 7:34pm on the 17^th April but it was not successful. The profile of Kemi Adetola on Banks was used in carrying out this attempt.
Alozie Chimezirim network profile was observed to be active on the between 6:52pm and 7:28pm on the 17April, 2015. Also, 30April, 2015 his profile was observed to be active on BANKS up to 8:44pm. Though, he signed off on the Banks at 8:44PM he signed off the branch’s attendance register to have left the Branch by 9:40pm. No justification was provided for staying in the branch that late.
During our interview with Alozie Chimezirim, he denied viewing NAT Automotive account.”

Page 28 of the Report is also contended to read thus:

“Although, there is no CCTV footage to corroborate our findings that Alozie Chimezirim viewed the account of National Automotive Council. However, based on evidence from the Enterprise Log Management System, Alozie Chimezirim’s profile viewed the account of National Automotive Council on 10 and 17 April, 2015 prior to the fraud occurring. Also, there was no justifiable reason for him to have remained in the office till 9:40pm on 30 April 2015 when his profile last accessed Banks by 8:44pm”

Learned Counsel further submitted that the basis of the allegation made against the Claimant can be found in Exhibit DWN and contended that what the Audit Committee accepted after its investigation of the allegation made against the Claimant is that the Claimant’s access (User ID and Password) had been used to view balance on the National Automotive Account. That it was based on the said investigation that the Claimant was referred to the Disciplinary Committee. Learned Counsel concluded by submitting that the Defendant has established the Claimant’s dismissal in the light of the four salient principles which the Supreme Court highlighted in University of Calabar v. Essien (supra) as the burden which the Defendant must discharge in establishing the fair dismissal of the Claimant from its employ and urged the Court to uphold same.

The gamut of the submission of learned Counsel is that the Claimant compromised his Core Banking Application Access and that the admission of the Claimant under cross-examination that his Core Banking Application Access was made of his personal ID and password when he gave evidence thus “anyone can change the ID but the password is personal.” Furthermore, learned Counsel contended that the Claimant had confirmed to the court under cross-examination that once he logged in to the Core Banking Application, it would bring out his profile which learned Counsel contends supports the Defendants assertions that it was the Claimant’s profile that showed on the Enterprise Log Management System (tendered as Exhibit DWN) as the person who viewed the balance of the account of the National Automotive Council. Learned Counsel contended that the foregoing was confirmed by DW1 when under cross-examination had confirmed that Exhibit DWN was the evidence which showed that the Claimant’s access was used to view or enquire on the account of National Automotive Council. It is contention of learned Counsel that the Claimant cannot explain how his password which he said was personal to him was used to conduct balance enquiry on the National Automotive Council’s account which resulted in fraudulent transfer of the sum of N361, 200,000.00 and in view of foregoing learned Counsel contended that the Claimant had not established his case within the ambit of Sections 131 and 133 of the Evidence Act, 2011 that his dismissal is wrongful and urged the court to so hold.

On Issue Two.

“Whether the Claimant has established his entitlement to his other reliefs as contained in the Amended Statement of Claim.”

Learned Counsel commenced arguments by submitting that the Claimant is not entitled to the payment of his salaries and allowances during the period of his suspension from the 13th day of May, 2015 to the 18th day of June, 2015 and reproduced the provisions of Chapter 11.3.1 (ii) of Exhibit DWJ-J59 in his address. Learned Counsel contended also that the Claimant had averred in paragraph 14 of his Reply to Statement of Defence that Exhibit DWJ-J59 was not what had been given to him while his contractual relationship with the Defendant lasted and that it had been averred that what governed his contractual relationship with the Defendant was Exhibit CWL –L30 and Exhibit CWL-CWL31 which made no for provision for suspension without pay. It was also submitted that assuming without conceding that ExhibitCWL-L30 was what regulated the contractual relationship between the Claimant and the Defendant and that in the event that Defendant had failed to provide for suspension of an employee with or without pay therein then the position of the law on suspension of an employee that would apply where such lacuna exists citing the case of Bernard Ojeifo Longe v.First Bank of Nigeria Plc. (2010)6 NWLR (PT.1189) 1 @ 60, paras. C-D in support of same. In the light of the cited authority of the Supreme Court, learned Counsel canvassed that the Claimant is not entitled to the payment of salaries and allowances while on suspension having not worked for the Defendant during this period and urged the court to so hold.

On the Claimant’s claim for entitlement to salaries, allowances benefits from the date of dismissal till the determination of this suit, learned Counsel contended that the Claimant is not entitled to the payment of salaries, allowances and benefits from the date of dismissal till the determination of this suit because the Defendant has been able to show that the dismissal of the Claimant is in line with Exhibit CWL-L31 and that same does not contravene the salient provisions of the Constitution on fair-hearing. Learned Counsel further submitted that even if the court were not to agree with Defendant that the dismissal of the Claimant is not wrongful, the Claimant would still not be entitled to the payment of salaries and allowances because the Claimant cannot choose to treat the contract he had with the Defendant as subsisting in citing the case of Ado v. Comm., Works, Benue State (2007)15 NWLR (PT.1058) P429 @ 443 paras.F –H wherein the Court of Appeal reiterated the holding of the Supreme Court in Obotv.C.B.N. (Supra) when citing the case of Denmark Production Ltd. v. Boscobel Productions Ltd and held thus wherein the Court of Appeal held as follows: “The Supreme Court in Obotv.C.B.N. (Supra) cited the case of Denmark Production Ltd. v. Boscobel Productions Ltd and held thus:“ that an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period, he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can”

Learned Counsel contended also that on the strength of all arguments canvassed for the Defendant, it had been submitted that the Defendant had submitted that the Claimant is not entitled to the sum N800, 000.00 representing his leave encashment from Equitorial Trust Bank and referred the Court to the Claimant’s averment in paragraph 27 of his Reply to Statement in disproving the Claimant’s entitlement to the sum N800, 000.00 representing his leave encashment from Equitorial Trust Bank. Learned Counsel posited another question to wit: Whether the Claimant has proven his entitlement to the sum of N800, 000.00 as leave encashment and answered the question in the negative when he contended that firstly, the Claimant did not afford the Defendant the opportunity of responding to this claim as there was no averment in his Amended Statement of Claim to put the Defendant on notice in respect of this claim of encashment. Learned Counsel pointed out that paragraph 27 of the Claimant’s Reply to Statement is not a response to any averments contained in the Amended Statement of Defence since the Defendant did not introduce new issues in its Amended Statement of Defence. Learned Counsel further contended that it is settled law that a Reply as part of pleadings must respond to new issues of facts in the Statement of Defence which a Claimant may not have envisaged in the Statement of Fact in citing the case of Egesimba v.Onuzuruike (2000) 15 NWLR (PT.791) P446 @518 paras. E-H. Learned Counsel also submitted further that parties in this suit did not join issues on the leave encashment and urged the court to expunge the claim. Learned Counsel contended that besides the fact that parties did not join issue on leave encashment, it is settled law that a party must rely on the strength of his case and contended that it can be inferred from paragraph 27 of the Claimant’s Reply to Statement of Defence along with Exhibit CWN-N2, one can safely conclude that the claim for leave grew from the contractual relationship which the Claimant had had with the defunct ETB and on the foregoing learned Counsel contended that there is nothing in the pleading of the Claimant to suggest that the case of the Claimant in this regard is for transfer of employment with the attendant benefits.

Learned Counsel submitted also that the Claimant by paragraph 7 of the Amended Statement of Claim had averred that he was offered employment by the Defendant on the 26th of October, 2011 and that in proof of this averment, the Claimant had tendered Exhibit CWE-E1. The summary of the Defendant’s contention in this regard is that Exhibit CWE-E1 and Exhibit CWL-L31 represent the contract between the Claimant and the Defendant at the material time and that it is nowhere contained in Exhibit CWE-E or CWL-L31 that the Defendant would assume the liability of the Equitorial Trust Bank as per the purported leave encashment of the Claimant now being claimed. Learned Counsel to the Defendant also inferred that by Exhibit CWE-E1, the Defendant had simply offered new employment to the Claimant as well as compensation packages and other benefits for the Claimant, and on the foregoing Learned Counsel submitted that it is settled law that parties are bound by their contract and anything extrinsic to the contract is not admissible to vary the terms of the contract, learned Counsel on this relied on the holding of the Court in U.B.N v Ozigi (1994) 3 NWLR (Pt 333) P385 @400 paras D-F, learned Counsel also relied on the case of Nwajagu v.Baico (Nig.) Ltd (2000) 14 NWLR (PT 687) P356 @ 363, paras.F-G and Kunle Makinde Dada vs. Sterling Bank Plc (Supra). In buttressing all submissions canvassed learned counsel submitted that on the whole Exhibits CWN-N3 are extrinsic to the contents of Exhibits CWE-E1 and CWL-L31and hence the Claimant is not entitled to the sum of N800, 000.00 representing what the Claimant termed as his leave encashment and urged the court to so hold.

On the Claimant’s claim for the sum of N2,000,000.00 as gratuity from Equitorial Trust Bank, the learned counsel submitted that the Claimant is not entitled to this claim and adopted submissions canvassed under paragraph 5.3 of its written address as its argument against this claim, learned counsel to the Claimant submitted further that there is no shred of pleading in both the Claimant’s Amended Statement of Claim and Reply nor any evidence in the two depositions of CW1 in establishing this claim. It was further contended that the court cannot grant this claim as there is no fact or evidence before the court to establish the claim of N2, 000,000.00 as gratuity and on this commended the Court to Sections to Section 131 and 132 of the Evidence Act, 2011. Learned Counsel also submitted that the Claimant has not proven his claim for the entitlement (25% of the gross pay) in the sum of N1, 404,228.84 and gratuity in the sum of N2, 000,000.00 from the Defendant as learned Counsel to the Defendant contended that there is no fact in the pleadings of the Claimant nor evidence in support of these two claims. Learned Counsel to the Defendant questioned the Claimants computation of his entitlements of 25% of gross pay and N2, 000,000.00 as gratuity from the Defendant and also questioned obligations the Claimant discharged to the Defendant to entitle the Claimant to same as learned Counsel argued that the Claimant did not make a case in this regard from his pleadings before court. Learned Counsel pointed out that the Claimant had made reference to the attachment to his last promotion letter marked as Exhibit CWF in his relief VI as justification for making the claim of 25% of his gross pay, on this learned counsel to the Defendant referred the Court to Exhibit CWF and its attachment which Learned Counsel described as ambiguous as there is no reference to the Claimant being entitled to 25% of his gross pay upon his exit from Defendant. It was further contended that the Claimant has not established this claim within the ambit of Section 131 of the Evidence Act and learned counsel urged the court to so hold. Learned Counsel on the whole submitted that Relief VI of the Amended Statement of Claim is hinged on speculation and that the court is a court of facts and evidence and not one of speculations and conjectures as speculations and conjectures have no place in the world of evidence and cited the Supreme Court case of Ivienagbor vs. Bazuaye (1999)9 NWLR(PT.620), 552 @ 561, paras .E-F. Learned Counsel further argued that the Claimant’s entitlement of 25% of gross pay can also be classified as gratuity in arguing that the Claimant did not place any fact before the court which will enable the court to see the difference in his claim for gratuity and 25% of gross pay and on this point learned counsel submitted that be it entitlement or gratuity, the Claimant is not entitled to same in view of the provision of Chapter 6.1.4.1 of Exhibit CWL-L31. It was also pointed out and argued in the Defendant’s final address that in the event that the court were to agree with the Claimant that his dismissal is wrongful, the Claimant would still not be entitled to what he calls gratuity in the sum of N2, 000,000.00 or entitlement of 25% of the gross as learned counsel contended and was of the opinion that the Claimant did not place evidence before the court in his pleading on whether he had reached the age of 55 years to entitle him to gratuity. From paragraph 7 of the Amended Statement of Claim coupled with Exhibit CWE-E1, learned counsel inferred that one can safely conclude that the Claimant did not spend up to five years with the Defendant let alone 35 years to entitle him to gratuity and in view of these submissions urged the Court to hold that the Claimant has not established his entitlement to the gratuity in the sum of N2, 000,000.00 and what has been termed by the Claimant as entitlement of 25% of gross.

On general damages, it was contended that the Claimant is not entitled to the sum of N300, 000,000.00 as general damages as learned counsel to the Defendant contended that the Claimant was unable to prove that his dismissal contravenes Section 46 of the Constitution since the Claimant had been availed the opportunity of proving his case before the Disciplinary Committee of the Defendant. It was further contended that the Claimant had not established how the Defendant breached the contract of employment between both parties. It is was the view of learned counsel to the Defendant that the Claimant’s claim for general damages must fail since claim for damages is usually predicated on breach of contract which a party alleging same must prove and on this he cited the case of Nigeria Ports Authority vs.Saidu Ahmed (2007) 12 NWLR (Pt.1578) 72 @ 94.

It was also argued that even if the court were of the view that the Claimant had proven his case against the Defendant, the Claimant still would not be entitled to general damages in the sum of N300,000,000.00 as learned counsel to the Defendant contended that the Defendant had established to the court how breach of confidentiality by the Claimant by viewing a customer’s account without authority led to the fraudulent transfer in the sum of N361, 200,000.00 from the Client’s account from which the Defendant was only able to salvage the sum of N30, 023,615.60 by the foregoing learned counsel contended that it meant that the Defendant lost over N330, 000,000.00 as a result of the Claimant failing in his contractual duty to the Defendant. Learned Counsel argued also that the Claimant rushed to court to benefit from his own wrong and stated that it is not the intendment of the law and equity that a party should benefit from his own wrong and on this he cited the case of Ogunlade v.E.M.B. (Nig.) Ltd. (2007) 2 NWLR (Pt.1017) P16 @ 29 paras. A-B wherein the Court of Appeal held that equity will not allow the appellant to benefit on the terms of contract which he was constantly breaching and in the light of the foregoing urged the court to dismiss the Claimant’s claim for general damages for being unmeritorious.

On the claim for cost, learned counsel to the Defendant contended that the Claimant did not prove his entitlement to the sum of N10, 000,000.00 being cost of the action and argued that there is no fact in the pleadings of the Claimant to support this claim nor evidence whether documentary or otherwise before the court to evince that the Claimant had paid the sum of N10, 000,000.00 to his counsel to prosecute this claim. It was also submitted that a claim for solicitor’s fee is a claim for special damages and the law is that special damages like the Claimant’s claim for cost of action in the sum of N10, 000,000.00 must be specifically pleaded and proved, on this learned counsel cited the case of Osuji vs. Isiocha (1989) 3 NWLR (Pt.111) 623 @ 633 and inferred that since the Claimant has specifically failed to plead and prove the fact that he incurred N10, 000,000.00 for prosecuting this action, his claim for cost of action must fail and urged the court to so hold.

In concluding its final address learned counsel to the Defendant submitted that the Claimant is not entitled to Relief iii because the same relief is subject of litigation before Court 2 of this Court. It was also submitted that CW1 under cross-examination had stated that he filed a fundamental right action in this court to which relief iii of the Claimant reliefs relates. It was further contended that Relief iii amounts to an abuse of court process which learned counsel to the defendant argued was purposefully used by the Defendant to the irritate the Defendant and on this premise learned counsel to the Defendant urged the court to strike off relief iii of the Claimant as contained on the face of the Amended Statement of Claim. It was also submitted by learned counsel that in the alternative the Claimant had not proven his entitlement to relief iii as learned counsel contended that the Claimant had not shown how the act of the Defendant in reporting the Claimant and its other members of staff vide Exhibit DWD amounted to an infringement of his fundamental right to dignity of human person as learned counsel contended that the Defendant had simply performed its civic duty when it wrote Exhibit DWD to the EFCC and contended that this is an act for which the Defendant cannot be penalized for so doing. In the light of the foregoing arguments and submissions, learned counsel to the Defendant argued that the Claimant had not proven his case against the Defendant and that nor had the Claimant established how his personal access (User ID and Password) was used to conduct an unauthorized enquiry on the account of the National Automotive Council which led to the fraudulent transfer of the sum of N361, 200,000.00 from the said account at the expense of the Defendant. The foregoing learned Counsel to the Defendant contended does not entitle the Claimant to the sum of N300, 000,000.00 as general damages as learned counsel believed the Claimant cannot benefit from his own wrong. Learned Counsel also argued in closing that the Claimant is not entitled to other monetary claims comprised in relief iii as he contended that the Claimant had failed to prove same within the ambit of Sections 132 and 133 of the Evidence Act and on the foregoing learned counsel urged the court to so hold.

THE CLAIMANT’S SUBMISSION

The Claimant raised two issues for determination in his final address which read thus;

1). Whether the Claimant’s Suspension and Dismissal is malicious, wrongful, Illegal, malafide and unlawful;

2). Whether the Claimant’s Suspension and Dismissal is malicious, wrongful, Illegal, malafide and unlawful.

On issue 1, the learned counsel to the Claimant stated that the Claimant had worked for the Defendant from December 2006 to June 2015 before the Claimant’s wrongful dismissal from his employment. Learned counsel to the Claimant also made out in his submissions that the Claimant had been employed by erstwhile Equitorial Trust Bank which had been taken over by Sterling Bank, the Defendant herein. It was submitted by learned counsel to the Claimant that by Chapter 1 and page 1 of Exhibit DWJ DWJ59 Sterling Bank had assimilated the entire business interest of Equitorial Trust Bank. It was submitted that by the foregoing Sterling Bank had incorporated the liabilities and assets of Equitorial Trust Bank by the assimilation described in Chapter 1 and page 1 of Exhibit DWJ DWJ59. On the foregoing conclusion learned counsel argued that same is established by the Letter of Offer of Employment dated the 26th day of October 2011 by which the Claimant had been offered the role of a Senior Executive with the Defendant.

It is the contention of learned counsel to the Claimant that from year 2006 till the termination of the Claimant’s appointment in May 2015, the Claimant had been diligent, upright, just and honest in the discharge of his duties as a member of staff of the Defendant. It is also the submission of learned counsel to the Claimant that the Claimant was never issued any query or warning during his employment with the Defendant. To learned counsel for the Claimant, the Claimant in the discharge of his duties for the Defendant in her Ikorodu Branch on the 12^th day of May 2015 was wrongfully arrested by some Police officers alongside his Colleague Adetola Oluwakemi on the orders of the Defendant. Learned Counsel submitted that the Claimant was manhandled and taken to the Defendant’s Head office where he was further embarrassed, harassed and assaulted before he and his colleague were taken to the Economic and Financial Crimes Commission (EFCC) office, that the Claimant was released on the 15th day of May 2015 i.e. three days after he was arrested and detained by the EFCC and that it as sequel to the Claimant’s arrest and detention that the Claimant was suspended without pay by the Defendant. It is submitted by learned counsel that according to the Black’s Law Dictionary Malice is defined as: 1. the intent without justification or excuse; and 2. To commit a wrongful act or reckless disregard of the law on a person’s rights and that flowing from the foregoing the Claimant he had been suspended without justification or excuse.

To learned Counsel, the Claimant’s version of events is that the Claimant had been issued a query on the 11^th day of May 2015 to which he responded, that he was arrested and dragged out of the office on the instruction of the Defendant given to the EFCC on 12 May 2015. Learned Counsel contended that the Claimant’s arrest and subsequent suspension was without justification based on fact the Claimant had only just responded to the query served on him on the day of his arrest. Learned Counsel to the Claimant in joining issues with the Defendant pointed out that by Exhibit CWL-L31 at Chapter 11 page 11.4.1 the Defendant did not mention Suspension without Pay in the said exhibit. In support of the foregoing the Claimant’s counsel further argued that the Defendant by Exhibit CWL-L31 did not state that employees would be suspended without pay and as learned counsel contended further that if same had been intended by Exhibit CWL-L31, the said exhibit would have provided expressly for same. On the foregoing submissions learned counsel to the Claimant urged this Court to hold that since Exhibit CWL-L31 did not mention nor state suspension of employee without pay hence it was wrongful and malicious to have suspended the Claimant without pay.

In addressing the case of Amadiume vs Ibok (2006) 6 NWLR Pt 975 pg 158 which learned counsel to Defendant had cited in the Defendant’s final written address, learned Counsel to the Claimant contended that the present suit is distinct and different from the case cited as the facts in the cited case is that the Respondents were placed on compulsory leave. It is further contended that compulsory leave is different from suspension and that it is trite that an employee who is on leave receives his salaries, allowances and entitlements whilst on leave. To learned Counsel to the Claimant compulsory, leave therefore posits that the employee is paid all his salaries, allowances and entitlements. Based on the foregoing, learned counsel to the Claimant argued that if the Defendant’s position is that the Compulsory Leave and Suspension are one and same subject, then the Claimant should have been paid his salaries, entitlements during his wrongful suspension. The foregoing, learned counsel to the claimant submitted, was not the case as the Claimant was wrongfully and maliciously placed on suspension without pay against the provisions of Exhibit CWL-L31. In concluding this leg of argument, the Court was urged to hold that the Claimant’s suspension without pay is wrongful, malafide and illegal.

In rebutting the argument of the Defendant that the Claimant had pleaded an “outdated Defendant’s Handbook”, the learned counsel to the Claimant submitted that the submissions of learned counsel to the Defendant in that regard are outrageous and preposterous as the said Handbook was provided to the Claimant during the cause of his employment with the Defendant before his employment was wrongfully terminated, counsel submitted that it was sequel to the wrongfully dismissal of the Claimant that the Defendant made the Handbook tendered as Exhibit DWJ-J59. To learned counsel the Defendant did not tender its original Handbook and on this it was also submitted that the Defendant did not supply a Certificate of Computer Generated Evidence as required by Section 84 of the Evidence Act during Trial of the suit and on this learned counsel to the Claimant urged the Court to disregard Exhibit DWJ-J59 and admit in its stead Exhibit CWL-L31 tendered by the Claimant.

Learned Counsel in his address also pointed out that to him the Defendant had exhibited its malice against the Claimant by his arrest and detention and that same is further established by the Defendant’s failure to pay the Claimant during his wrongful suspension and eventual dismissal. This Court was urged to declare that the Claimant’s suspension and dismissal was wrongful and illegal, learned counsel to the Claimant cited the Supreme Court case of Mr. Biodun Oduwole vs. Professor Tam David West (2010) 10 NWLR Pt 1203 pg 598 @pg 601 and 602 where it was held this “Malice means active ill will or desire to harm others. Wrongful malice, in legal parlance means an act intentionally done without just cause”. It was the contention of learned counsel that the wrongful suspension and dismissal of the Claimant is fraught with acts of ill will and a desire to harm the Claimant as the Defendant did not investigate the response of the Claimant but instead ordered the EFCC and Police to arrest and detain the Claimant. It is further contended that after the arrest and detention of the Claimant on the instructions of the Defendant, the Claimant was invited by the Defendant’s Staff Disciplinary Committee sometime in June 2015, one month after the Claimant had been wrongfully suspended by the Defendant in May of 2015, citing the holding of the Court of Appeal in case of U. B. A. Plc. Vs Oranuba (2014) 2 NWLR Pt 1390 @pg 5 on fair hearing where it was held thus: “It is against fair hearing and the rule of natural justice for an employee to be suspended on half salary when the employee has not been queried and accorded a fair hearing on the query.”

To learned counsel to the Claimant, the Defendant in furtherance of its act malice and unlawful acts against the Claimant had already made its wrongful and illegal decision to dismiss the Claimant before giving him the right to be heard. The learned Counsel to the Claimant listed same thus:

The Defendant made its Confidential Internal Memo embedded in Exhibit CWK-K40 on 2 June 2015

The Claimant appeared before the Staff Disciplinary Committee on the 11th of June 2015 i.e. nine (9) days after the Confidential Report was made. The invitation to the Staff Disciplinary Committee Report is in Exhibit DWH

The Claimant was dismissed through a letter dated the 18th June,2015 which is sixteen (16) days after the Confidential Internal Memo was made.

Counsel to the Claimant the reproduced the contents of paragraph 37 of page 7 of Confidential Internal Memo embedded in Exhibit CWK-K40 dated 2nd June, 2015 as thus “All the staff involved had been sanctioned by Staff Disciplinary Committee (SDC) Abimbola Oyediran and Alozie Chimezirim were dismissed, while the employment of the others were terminated.” The foregoing, to the learned Counsel, points out that the Claimant had been dismissed on the 2nd June, 2015 long before he appeared before the Disciplinary Committee and the service of the letter of Dismissal on the Claimant and from the contents of paragraph 37 of page 7 of Confidential Internal Memo embedded in Exhibit CWK-K40 dated 2nd June, 2015 the inference can be made that the decision had already been made to wrongfully and maliciously terminate the employment of the Claimant before the Claimant received the letter terminating his employment. The learned Counsel to the Claimant agued further that the culprits that perpetrated the fraud in Gbagi Branch in Ibadan, Oyo State were not dismissed rather their employment were terminated, it was further submitted that one Valentine Oluwaseun, Sogunro Bukola and Adegoke Abisola were all connected to the fraudulent transfers however their employment were terminated while the Claimant who was not fingered in any crime whatsoever which the Defendant copiously confirmed was still maliciously and wrongfully dismissed from the employment of the Defendant.

In responding to the Defendant’s Final Written Address and the reliance placed on the dictum in the case of University of Calabar vs Essien (1996) SUPRA. It was contended that it had been provided in the facts of the cited case thus: “An ad hoc committee of the University Council invited the respondent to substantiate the allegations he leveled against the University. He gave oral and documentary evidence and even cross examined the Vice Chancellor. The committee after hearing both sides . . .” Learned counsel to the Claimant pointed out that the Respondent in the cited suit had been given fair hearing and the rules of natural justice were not breached. In comparing the facts in University of Calabar vs Essien SUPRA learned counsel argued that the Claimant had appeared before the Staff Disciplinary Committee only once and that the said Committee did not listen to the Claimant as the Staff Disciplinary indicted him and refused him an opportunity to defend himself by allowing him narrate his own side of the story. Learned Counsel in expressing his opinion argued that the foregoing the acts point out to the fact that the Claimant’s fate had already been decided by the Confidential Memo dated 2nd June, 2015, which implied that the Staff Disciplinary Committee was just a gimmick. Learned Counsel further submitted that during cross examination the evidence of the Claimant was thus:

“AdisaOluwole: You were invited at the Staff Disciplinary Committee

Claimant Witness: I was invited and I was not given any opportunity to state my side of the story. I was asked what I studied in the University. I said Computer Science and the Committee concluded that ‘they are the one.”

It was further contended by learned Counsel to the Claimant that by the foregoing the Defendant breached the rules of natural justice and did not accord the Claimant his right to fair hearing. It is also the contention of learned Counsel to the Claimant that by University of Calabar vs Essien supra, the third ground for dismissing an employee is that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after the investigation. To the learned Counsel, the Staff Disciplinary Committee did not accept that the Claimant committed the fraudulent act alleged against the Claimant and that there is no report produced till date of the Staff Disciplinary Committee nor did the Defendant tender the Report of what transpired at the Staff Disciplinary Committee. The foregoing submissions to learned counsel to the Claimant is that the Defendant by these acts breached the Claimant’s rights as an employee particularly when the Claimant was extricated from any crime or wrongdoing by the Economic and Financial Crimes Commission (EFCC) and the provisions of the Handbook of the Defendant.

In responding to paragraph 4.5 of the Defendant’s Final Written Address, the learned counsel submitted that the Defendant did not provide the Staff Disciplinary Committee report and hence what transpired therein is not known to the Court and the Claimant. It is also the contention of learned counsel that the Enterprise Log Management was not produced by the Defendant even though the Claimant had given the Defendant Notice to produce same, Counsel urged this Court to disregard the submission of the Defendant.

In response to the arguments canvassed at paragraph 4.7 of the Defendant’s Final Written Address, learned counsel pointed out that the Defendant had cited Chapter 6.2, 6.2.1(f) and Chapter 11.3 (xiii) of the Staff Hand book but submitted that these provisions are not provided in the Claimant’s Exhibit tendered as Exhibit L-L30 and urged this Court to hold that it is Exhibit L-L30 that binds the Claimant and Defendant.

Learned counsel also joined issues with the Defendant on the arguments contained at page 11 of the Defendant’s Final Written Address, as learned counsel to the Claimant pointed out that the Defendant had identified Exhibit DWK-K54 as being the Code of Ethical Conduct, that this document was not presented to Claimant by the Defendant during the cause of his employment with the Defendant and that same was established during cross-examination when the Defendant’s witness stated that Exhibit DWK-K54 was not a document of the Defendant and it was not presented to the Claimant.

Learned Counsel also contended that the Defendant at page 15 of its Final Written Address has argued that the Claimant is not entitled to his leave encashment from the Defendant because he did not plead it and on this learned counsel to the Claimant argued strenuously that in the Claimant’s reliefs in his Amended Statement of Facts particularly at prayer VI he has urged the Court to grant his prayer and that furthermore that in paragraph 27 of the Reply to the Defendant’s Amended Statement of Defence the same fact was also pleaded. It was also submitted that the Defendant had not complied with the provisions of Section 84 of the Evidence Act when it tendered Exhibit DWK-K54 which was not in its original form and based on this urged the Court to disregard Exhibit DWK-K54.

To learned counsel to the Claimant, the submission of learned counsel to the Defendant at page 11 of its Final Written Address where it quoted clause 1.2 (ii) of Exhibit DWK-K54; amounts to the Defendant approbating and reprobating as by this Exhibit the Defendant had quoted the allegation against the Claimant as Confidentiality/Dissemination of information and in another breath in its Dismissal Letter-Exhibit CWH it had quoted the allegation against the Claimant as involvement in the fraudulent transfers from a Customer bank at Gbagi Branch Ibadan. Learned Counsel also contended that the Defendant had also identified the allegation against the Claimant as a case of gross violation of the code of ethical conduct. The foregoing, to learned Counsel to the Claimant, had made it obvious that the Defendant was fishing for evidence and premised on this the Claimant urged the Court to grant the claims of the Claimant.

Issues were also joined on the issue raised in the Claimant’s final address that the Defendant had further established its malice when it wrongfully and summarily dismissed the Claimant who was not fingered in the fraudulent transfer that occurred with the National Automotive Council (NAC)Account domiciled with the Defendant. Learned Counsel to the Claimant pointed out that the Confidential Internal Memo of the Defendant which can be found at pages 21-30 of Exhibit GWK-K40, is the Memo which shows that the fraud took place in the Gbagi Branch of the Defendant Bank and learned also argued that same also shows that the Fraudulent postings were done by Abimbola Oyediran who was with Valentine Oluwaseun (CEMP) and Sogunro Bukola at the Gbagi Branch of the Defendant on the 30th April 2015 who were working in the dark and who could not provide any reasons for why they worked in the dark with Abimbola Oyediran. Learned Counsel proceeded to submit that employment of Valentine Oluwaseun and Sogunro Bukola were terminated and on the foregoing the learned counsel referred the Court to page 27 at paragraph 37 of Exhibit DWK-K40.

Issues were also joined by the Claimant with the Defendant on the arguments canvassed at page16 of the Defendant’s Final Written Address wherein it was argued that the claim for leave arose from the contractual relationship between the Claimant and the defunct ETB and in responding the learned Counsel to the Claimant pointed out that by Exhibit DWJ-J59 particularly the last paragraph of page 1 of Chapter 1 it is shown that ‘in November 2011, Sterling Bank assimilated the entire business interest of Equitorial Trust Bank’. To learned counsel to the Claimant, the foregoing responds to paragraphs 5.3 and 5.4 of the Defendant’s Final Written Address and on all the foregoing argument canvassed learned counsel to the Claimant urged this Honourable Court to grant the prayers of the Claimant.

It is also in issue whether or not the Claimant viewed the National Automotive Account, a fact which the Claimant has denied and on which the Claimant gave the Defendant Notice to produce the Record of Enquiries made by the Claimant on the 10th day of April 2015 and the Defendant’s attendance Register for the 10th day of April 2015. It is the contention of learned counsel to the Claimant that the Defendant purposely failed and refused to produce these useful pieces of evidence because of the malice effected against the Claimant by his wrongful dismissal and urged the court to hold same.

In response to page 19 of the Defendant’s Final Written Address learned counsel strongly contended that the reliefs and all the other reliefs sought by the Claimant are not an abuse of Court of process. It is submitted by counsel to the Claimant that that the Defendant did not plead any averment relating to the suit mentioned and that there is neither documents nor evidence tendered by the Defendant to corroborate its assertions, on this the learned Counsel to the Claimant submitted that this Court deals with cogent, useful and verifiable evidence.

On the content of Exhibit DWI learned counsel to the Claimant contended that the position of the Law is that the Defendant had to wait for the outcome on the investigation before wrongfully dismissing the Claimant since it was a criminal allegation, on the foregoing the Claimant cited the dictum of Ige, JCA in Savannah Bank (Nig.) Plc. Vs Fakokun (2002) 1 NWLR (Pt.749) held thus:“It is an obvious fact that the respondent was dismissed on allegation of crimes. The fact that the appellant bank resorted to calling the criminal allegations as gross misconduct does not by itself rule out the allegations being crime. To show that the allegations were discovered to be criminal, the bank called in the police after receiving report of their investigation panel. In a case where the dismissal of an employee is based on an allegation of crime, such allegation must first of all be proved before the dismissal can stand. The Police investigated the criminal allegations against the respondent and others but they found no case made against him. He was exonerated.”

The opinion and contention of learned Counsel to the Claimant, is that the Claimant was not investigated but first arrested and detained before he was suspended, investigated and invited by the Defendant Staff Disciplinary Committee. These steps to learned Counsel to Claimant were wrongful and malicious and on these facts urged this Honourable Court to hold that the suspension and dismissal of the Claimant is wrong, unlawful, illegal and malicious and cited the Court of Appeal case of Osagie v, N. N. B. (2005) 5 NWLR Pt 913pg 513 @pg 516-517

Learned Counsel to the Claimant also contended that on the imputation and allegation of crime against the Claimant, it is the Claimant’s case that he was exonerated from any crime or involvement in fraud by the EFCC, it was also contended that there were therefore no legitimate reasons to justify his wrongfully dismissal. It is also submitted that by pages 31-32 of Exhibit DWK-DWK 40 the EFCC in its report did not find the Claimant culpable in the fraudulent transfer and that there was no allegation against the Claimant in that report. Learned Counsel to the Claimant stressed that the Claimant did not view, transfer or receive any monies relating to the Fraudulent transfers, he also pointed out that there are certainly no acts of violation let alone gross violation by the Claimant in the Defendant’s Code of ethical conduct and on the arguments canvassed urged the Court to hold that the Claimant was not indicted of any wrongdoing and crime hence his reliefs/claims before this Honourable Court are meritorious. In establishing the malice that led to the wrongful and illegal dismissal of the Claimant, it was raised in learned counsel to the Claimant that the Defendant issued the Claimant Exhibit L-L30, but during Trial relied on another Handbook marked as Exhibit DWJ-J59 which was prepared and circulated during the pendency of this suit. It was also contended that Exhibit L-L30 does not have paragraphs 6.2 and 6.2.1.and that these paragraphs were added to victimize the Claimant. To Learned Counsel for the Claimant, the Claimant did not contravene any of the provisions of the Exhibit L-L30 nor grossly violated any of the codes of same and that rather the Claimant had shown diligence. It was submitted by learned counsel to the Claimant that Courts have established that parties (Employer and Employee) must abide by the terms of the Contract of service and submitted that the terms would aid the Honourable Court in determining the powers and excess of each party on this the Claimant relied on the Court of Appeal case of U. B. A. Plc. v, Oranube supra where it was held thus: “In determining whether or not there was an act of misconduct by an employee, whether gross or otherwise, the place to look is the contract of employment between the employer and the employee.”

To Learned Counsel to the Claimant notwithstanding paragraphs 30 and 31 of page 27 in Exhibit DWK-DWK 40 Kemi Adetola was not indicted, suspended, handed over to the Police and the EFCC or subsequently dismissed, rather she has been promoted to the position of Service Manager and on this learned counsel urged the Court to hold that the dismissal of the Claimant was malicious and set out to harm the Claimant. Learned counsel submitted that on the 30th day of April 2015, the Claimant, his Supervisor and other staff were all in the Defendant’s branch in Ikorodu till late because that was the last day in the month and Reports had to be concluded and that the internet connection was also pretty slow due to the volume of work being done and the Claimant, His Supervisor Mr. Imohiosen Longe and other colleagues in the Operations Department left together at 9:50pm. The contention of learned counsel to the Claimant is that the Defendant did not query any member of staff that was in the Ikorodu branch of the Defendant on April 30 2015 save the Claimant and on this learned counsel pointed out that the CCTV of the Defendant in the Ikorodu branch were all functional on the 30th day of April 2015 and that the Defendant in its malice against the Claimant withheld the CCTV footage which in learned Counsel to the Claimant’s opinion further established the intention of the Defendant to victimize the Claimant and dismiss him wrongfully, illegally and maliciously. In an attempt to further establish the Defendant’s malice in the unlawful and wrongful dismissal of the Claimant, learned counsel to the Claimant pointed out that the evidence contained in paragraph 13 of the Defendant’s Witness Statement on oath. By the foregoing averment, learned counsel Claimant pointed out that the Defendant made this statement after it had dismissed the Claimant through its dismissal letter dated the June 18th 2015 and urged the Court to see the malice and the wrongful acts of the Defendant in the wrongful dismissal of the Claimant and hold that the Claimant’s dismissal was wrongful, illegal and unlawful.

On whether the Claimant is entitled to compensation from the Defendant for the Wrongful, Illegal, malafide and unlawful Suspension and Dismissal, it is the case of the Claimant that the Claimant’s reputation had been damaged by his wrongful dismissal and the wrongful denial of his entitlements atfer his malicious dismissal by the Defendant. Learned Counsel argued that Claimant is young and full of energy and at the level of Service Manager he still had quite a number of years to serve before the Defendant abruptly dismissed him which thereby dented his pristine and soaring banking career based on the arguments canvassed by learned counsel for the Claimant, the Court was urged to exercise its the discretion in favour of the Claimant on the issue of compensation and award damages against the Defendant, learned counsel cited the Supreme Court case of Olanrewaju vs Afribank Vol. 6 MJSC pg 71 where the Supreme Court held thus “If the master terminates the contract with his servant in a manner not warranted by the contract, he must pay damages for breach of contract. The remedy is in damages .” learned counsel to the Claimant contended that going by the dictum of the supreme court a Master must pay damages and it was on this basis that learned counsel to the Claimant reiterated that by the facts of the case, the Defendant wrongfully dismissed the Claimant against the provisions of the Defendant Handbook and that the Defendant has evinced that the Claimant did not play any role in the fraudulent transfer, learned counsel also contended that the Claimant had also been exonerated by the Economic and Financial Crimes Commission of any fraud and/or wrong hence establishing that the Claimant deserves to be compensated by the Defendant. Flowing from the foregoing the learned counsel to the Claimant averred that the Claimant is the breadwinner of his household who cannot afford the basic and necessary needs of his family and himself, it was also further averred by learned counsel to the Claimant that the Claimant’s children are out of school as the Claimant cannot seek an employment in another bank or Organisation due to the Claimant’s wrongful dismissal. On the foregoing learned counsel to the Claimant cited the Court of Appeal case of Ezekwere vs. Golden Guinea Breweries Ltd. Suit No. CA/PH/166/93; 2008 8 NWLR (Pt 670) @ pg 648 and Salami vs UBN Plc. (2011) Vol 8 WRN 130 @PG 138 where the court held thus: “That is why with regards such premature termination of the relationship as a wrongful affair. It is in recognition of this rule of law that the Courts, while reluctant to force the parties to continue the relationship, make the erring employer pay for his unjustifiable conduct by slapping him with an order for payment of damages to compensate the employee for being wrongfully put out of job.”

On the entitlements of the Claimant, learned counsel for the Claimant contended that he has been deprived his entitlements since the year 2015 which learned counsel computed to add up to three (3) years, in contending that the Claimant deserves to be compensated for the years of deprivation from his entitlements cited the Supreme Court case of Agu vs General Oil Ltd. (2015) 17 NWLR PT 1488 pg 327 at pg 330 where it was held thus:“The essence of damages in breach of contract cases is restitution in integrim; that is, the award of damages in a case of breach of contract is to restore the claimant to a position as if the contract has been performed.’’

It is also the case of the Claimant on Damages that the import of Damages was further enunciated in Emirates Airline vs Ngonadi (2014) 19 NWLR Pt 1413 pg 429 @ 441-442 where it was held thus: “Once a breach of contract is established, damages flow. General damages are losses that flow naturally from the adversary. It is generally presumed by law as it need not be pleaded or proved. The rules to be applied in awarding such damages isrestitio in integrum, that is, in so far as the damages are not too remote, the plaintiff shall be restored as far as money can do it, to the position he would have been if the breach had not occurred.”

While concluding his final address, learned counsel to the Claimant submitted that the Claimant had suffered greatly for the breach of contract caused and inflicted by the Defendant when the Defendant blatantly acted contrary to the provisions of its handbook in the wrongful and unlawful dismissal of the Claimant and on this relied on the Supreme Court case of Emirates Airline vs Ngonadi supra where it was held that the primary object of an award of damages is to compensate the plaintiff for harm done to him. A possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages, vindictive damages and retributory punishment which comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. On the strength of all argument and submissions made the Claimant’s learned counsel urged the Court to grant the reliefs of the Claimant with substantial compensation against the Defendant.

THE DEFENDANT’S REPLY ON POINTS OF LAW

In replying on points of law, learned Counsel to the Defendant pointed out that it is the law that address of a party, however beautiful cannot take the place of evidence and on this relied on the case of Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) Pg.163 @ 189 paras. F-G in contending with the submissions of the Claimant in paragraphs 4.1.3 and 4.1.4 of his Final Written Address wherein it had been submitted by the Claimant’s learned counsel that the Defendant incorporated the assets and liabilities of the defunct Equitorial Trust Bank and had contended that the Claimant was diligent, upright, just and honest while in the employ of the Defendant. To learned Counsel to the Defendant, parties did not join issues on whether the Defendant acquired the assets and liabilities of the defunct Equitorial Trust Bank nor on the fact that the Claimant had been diligent, upright and just while in the employ of the Defendant. It was also contended that the Claimant did not plead these two issues in his pleading and on this basis learned counsel to the Defendant urged the court to discountenance the arguments canvassed at paragraphs 4.1.3 and 4.1.4 of the Claimant’s final written Address. Also, in response the submissions contained in paragraph 4.1.13 of the Claimant’s final address that it was after the Claimant had been wrongfully dismissed that the Defendant made its staff handbook tendered as Exhibit DWJ-J59, learned counsel to Defendant argued that the law is that fact not pleaded goes to no issue and that since the Claimant did not plead that Exhibit DWJ-J59 was made after the Defendant dismissed the Claimant in any part of his pleadings therefore paragraph 4.1.13 of the Claimant’s Address goes no issue.

Learned Counsel to the Defendant also joined issued with the Claimant on the content of paragraph 4.1.14 of the Claimant’s Final Address where learned counsel to contends that the Claimant’s counsel had contended that the Defendant had failed to tender the original copy of Exhibit DWJ-J59 nor tender a Certificate of Computer Generated Evidence, learned counsel for the Defendant rebutted the foregoing by stating that by Section 12 of the National Industrial Court Act this Court shall be bound by the Evidence Act but may depart from it in the interest of justice and on this learned counsel to the Defendant urged the court to discountenance the Claimant’s submissions in paragraph 4.1.14 of his Address as the Claimant himself also tendered photocopy of Exhibit CWL-L31 and did not tender certificate of identification as envisaged under Section 84 of the Evidence Act.

The Defendant also joined issues with the submissions of the Claimant’s counsel in paragraphs 4.1.15 and 4.1.16 of his Address wherein the Defendant argued that the learned counsel to the Claimant had contended that the action of the Defendant in suspending and dismissing the Claimant was fraught with malice and ill will on which argument counsel to the Claimant had cited the Supreme Court case of Mr.Biodun Oduwole vs. Professor Tam David West (2010)10 NWLR PT 1203 Pg. 598. Learned counsel to the Defendant in response submitted that it is settled law that a party alleging malice must expressly plead it in his pleadings with particulars and elements of malice clearly provided which to learned counsel to the Defendant the Claimant did not do in his pleadings, on this the Defendant relied on the case of Newbreed Org. Ltd. v. Erhomosele (2006)5 NWLR (PT.974) P499 @ 518, para.G, 539, paras.F-H.

Learned Counsel urged the Court to disregard the paragraphs 4.1.15, 4.1.16, 4.1.17, 4.1.20, 4.1.21 and 4.1.22 of the Claimant’s Address and other paragraphs of the Claimant’s submissions such as paragraphs 4.1.51, 4.1.52, 4.1.53, 4.1.54, 4.1.56 and 4.2.11, in rebutting the arguments canvassed in the paragraphs identified, learned counsel to the Defendant also placed reliance on the case of Chabasaya v.Anwasi (Supra). Learned Counsel also urged the court to discountenance the submissions of learned counsel to the Claimant in paragraph 4.1.23 on the ground that the Claimant never pleaded the involvement of Valentine Oluwaseun, Sogunro Bukola, Adegoke Abisola in the fraudulent transfer in his pleadings. It was also contended that learned counsel to the Claimant stated in paragraph 4.1.30 of his Address that the Defendant did not provide the Enterprise Log Management Report and in response learned counsel to the Defendant contended that it is the law that court and parties are bound by the court’s record and that the Defendant tendered the report of the Enterprise Log Management as Exhibit DWN.

It is also the contention of learned counsel to the Defendant that by paragraph 4.1.32 of the Claimant’s Address, Counsel to the Claimant has submitted that Exhibit DWK –K54 was not given to the Claimant while in the employ of the Defendant and on this learned counsel to the Defendant submitted that this is a new fact which was not pleaded in the Claimant’s pleadings and on the authority of Chabasaya v.Anwasi (Supra), same goes to no issues as the Claimant’s address however beautiful cannot take the place of pleading and evidence. Defendant’s counsel went on to add that it the law every document speaks for itself and that the preamble of Exhibit DWK-K54 speaks for itself which to learned counsel to Defendant provides that the Code shall guide every member in Banking Industry and describe that an employee in the banking industry is a member whom the Code regulates. On the foregoing, to learned counsel for the Defendant the Claimant was a member of the banking industry while in the employ of the Defendant and as such that there was no need to have expressly given Exhibit DWK-K54 to the Claimant as the Defendant has no such duty to the Claimant to make Exhibit DWK-K54 available to him and on this learned counsel to the Defendant urged the court to so hold.

In response to paragraph 4.1.33 of Claimant’s Address, learned counsel to the Defendant placed further place reliance on Section 12 of the National Industrial Act and urged the court to discountenance the submissions of the Claimant’s counsel in the said paragraph as learned counsel to the Defendant is of the view that the court can depart from the provisions of the Evidence Act in the interest of justice on this learned counsel to the Defendant also placed reliance on the case of Chabasaya v. Anwasi (Supra) in urging the court to disregard the Claimant’s submissions in paragraph 4.1.36 of his Address as same was not pleaded. It was also contended that the Claimant in paragraph 4.1.38 submitted that where an employee is accused of committing crime, the employer has to wait for the outcome of investigation before dismissing the employee and pointed out that the Claimant cited the case of Savannah Bank (Nig.) Plc. v. Fakokun (2002) 1 NWLR (PT.749) in respect of same, learned counsel to the Defendant argued that the law is that the court and the parties are abound by the pleadings and contended that the Defendant never levelled allegation of crime against the Claimant by his pleadings. Learned counsel to the Defendant contended that what had been made out from the Defendant’s pleadings is that the Claimant could not explain how it compromised its bank access and pin which compromise led to the Defendant losing over N321, 000,000.00. To the learned Counsel to the Defendant, the foregoing is not the correct position of the law that an employer has to wait for the outcome of a criminal investigation where an employee is alleged of crime and rebutted the Claimant’s position by placing reliance on Supreme Court case of Arinze v.F.B.N.Ltd. (2004) 12 NWLR (PT.888) 663 where it was said thus: “In cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence”

In responding to paragraph 4.1.48 of the Claimant’s final Address, the learned counsel for the Defendant contended that the law is that he who asserts must prove and submitted that there is no evidence before the Court that Kemi Adetola was promoted to the position of Service Manager. It was also contended that in fact, there is evidence from the case of the Claimant that the Claimant and Kemi Adetola were arrested the same day by the EFCC and also that there is evidence before the Court by paragraph 31 of page 27 of Exhibit DWK-DWK 40 that the profile of Kemi Adetola was used to attempt internal transfers from NAT account to other fraudulent accounts on the 10th and 17th April, 2015, in the same way the profile of the Claimant appeared as the person who viewed the balance of the NAT account and that by Exhibit DWK-DWK 40, the fraud took place on the 30th April, 2015 and on the foregoing submissions learned counsel to the Defendant urged the court to disregard the submissions of learned counsel for Claimant in paragraph 4.1.48 of his Address. Learned counsel for the Defendant also placed reliance on the case of Chabasaya v. Anwasi (Supra) in submitting that the submissions of the Claimant’s counsel in paragraphs 4.1.50 and 4.1.51 of the Claimant’s final address did not emanate from the pleadings of both parties as issue were not joined on whether it was only the Claimant that was queried and whether the CCTV footage was withheld by the Defendant and based on the foregoing to learned counsel to the Defendant contended that paragraphs 4.1.50 and 4.1.51 of the Claimant’s Address go to no issue and that it is the law that a document speaks for itself and thereafter reproduced paragraph 21 of page 25 of Exhibit DWK-DWK 40 which states thus:“We then requested for the CCTV footage of the branch using the time the events were done to establish the identity of who viewed/did the trial postings in the branch, To our surprise, the date and time on the CCTV showed that the last time it recorded was 13 March, 2015. Consequently, we requested the vendor to establish what went wrong; when the logs were viewed, we discovered that the configuration of the DVR was changed on February 19, 2015 between 12 noon and 12.09pm.” simply shows that there was no CCTV footage for the events of 10th, 17th and 30th April, 2015 due to the fact that its configuration had been tampered with.

It was also contended by learned counsel to the Defendant that by paragraph 4.1.53 of the Claimant’s Address, the Claimant’s counsel had submitted that the Defendant had refused to produce the record of enquiries made on the National Automotive Council Account. On this learned counsel for the Defendant argued that the law is that what is admitted need not be proven. In further rebutting the paragraph 4.1.53 of the Claimant’s final address, learned counsel for the Defendant referred the Court to paragraph 8 of the Claimant’s Reply to the Statement of Defence wherein the Claimant averred that the fraud actually took place and also proceeded to aver that the Claimant himself tendered Exhibit CWK-K40 and part of the documents compressed in the said exhibit is the report of the Audit Committee which the Defendant tendered as Exhibit DWL-L9, to the Defendant, on the foregoing there is nothing in Exhibit CWK-CWK40 linking Adetola Oluwakemi to the fraudulent transfer of N361, 200,000.00 from the National Automotive Account and urged the court to discountenance the submission of the learned counsel to the Claimant in paragraph 4.1.53 of his Address.

Learned Counsel for the Defendant also contended that it had been submitted under paragraph 4.2.5 of the Claimant’s final written address that the Defendant stated that the Claimant did not play any role in the fraudulent transfer and on this, learned counsel to the Defendant argued that the law is that parties and the court are bound by the pleadings placed before the court. To the learned counsel of the Defendant, it was not stated in any part of the Defendant’s pleadings that the Claimant did not play any role in the fraud and on this learned counsel for the Defendant argued that its had pleadings stated that it could not establish the Claimant’s role in the fraud since others who perpetrated the fraud are still at large and that the case of the Defendant in its pleadings for which the Claimant was dismissed is that the Claimant had compromised his Bank Access and Pin and that it is on this that both parties joined issues. The argument canvassed under this head, learned counsel to the Defendant referred the Court to the averments contained in paragraphs 11, 12, 13 of the Claimant’s Amended Statement of Facts and paragraphs 7, 15 of the Reply to the Statement of Defence.

The court was also urged to disregard the submissions of counsel to the Claimant in paragraph 4.2.5 and 4.2.6. of his address, as learned counsel to the Defendant argued that learned counsel to the Claimant can be seen to be making his submissions on facts not pleaded. Learned Counsel to the Defendant also responded to paragraphs 4.2.8 and 4.2.9 of the Claimant’s Address and referred the Court to Section 131 (1) of the Evidence Act which provides thus: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist” and on the above authority the learned counsel to the Defendant submitted that neither Exhibit DWJ-J59 nor Exhibit CWN-N3 showed how the Claimant arrived at the sum of N800, 000.00 being claimed as leave encashment from the defunct Equitorial Trust Bank and urged the court to so hold.In Concluding his reply on point of law, learned Counsel to the Defendant submitted that the Claimant did not prove his case against the Defendant and in the light of the submissions and judicial authorities contained therein he urged the court to dismiss the case of the Claimant with substantial cost.

COURT’S DECISION

I have considered the process filed and the submissions of the learned counsel. Before considering the merit of the case, I need to resolve the objections raised by the Claimant on the admissibility of Exhibit DWK-K54 for non-compliance with S.84 of the Evidence Act 2011.

The Defendant, during the trial, submitted that it would raise its objection in its final address, but did not raise any, this being the case, I take it that the Defendant has no objections to the documents tendered by the Claimant. The Defendant however tendered Exhibit DWJ-J59 and argued that it is the Defendant’s employees’ Handbook and that Exhibit WL-L31 is an outdated Handbook tendered by the Claimant. The Defendant did not adduce any evidence to prove that Exhibit CWL-L31 is indeed outdated as it claimed, on the contrary, the Defendant made copious submissions and placing reliance on Exhibit CWL-L31 which it said is outdated. For the foregoing reasons, Exhibit DWJ-J59 is hereby discountenanced in this judgment.

The claimant hinged his argument on the admissibility of Exhibit DWK-K54 on its non-compliance with Section 84 of the Evidence Act 2011 being a computer-generated document. Given that the claimant is not doubting the authenticity of EX-DWK-K54, but merely faulting it for non-compliance with Section.84 of the EA, it is my considered view that the claimant is relying on technicality, this Court is enjoined by its Act to shun technicalities and where the interest of Justice so demands, to depart from the provisions of the Evidence Act. See Section.12 of the National Industrial Court Act 2006. The Claimant’s objection to EX DW4-K54 is accordingly hereby overruled.

I shall now turn to the merit of the case. The claimant’s case is that he was unlawfully suspended and wrongfully dismissed by the defendant in contravention of the Defendants staff hand book, Exhibit CWL- L31. The Defendant’s case is that it did not dismiss the Claimant for participating in the fraud, but the claimant has failed to give account of how his password was used to hack into a customer account in his response to a query it issued to him. To the defendant, the dismissal of the claimant was proper in the circumstance.

In my view, the only issue that calls for determination is whether having regard to the facts and the circumstance of this case, the suspension without pay and the subsequent dismissal of the Claimant were proper.

In a claim for wrongful dismissal of an employee such as the case in head, the Law is settled that an employee or servant who complains that his employment has been wrongfully terminated or abruptly brought to an end must found his claim on the contract of service and show in what manner the wrong was done see Mr. Syed Qama Ahmed v. Ahmadu Bello University (ABU) & Anor. (2016) LPELR – 40261 (CA).

The claimant averred that following a merger between erstwhile Equatorial Trust Bank Limited and Sterling Bank Plc, he was employed by the Defendant as a senior Executive on 26-10-2011 and was promoted the post of Banking Officer on 30^th April, 2013 vide exhibits CWE-E1 and CWF respectively. The claimant also pleaded and tendered the Defendant’s Staff Hand Book, Exhibit CWL-L31. The claimant averred at paragraph 11 of the amended statement of facts that on 11-5-15, the Defendant informed him through a query, Exhibit DWE, that the Claimant’s Bank Access was used to conduct enquiry on a customer account on 10-4-15 at the Defendants branch in Ibadan, Oyo State. The claimant responded vide Exhibit E denying the allegation. At paragraphs 18 – 21 of the amended statement of facts, the claimant averred that he was arrested along with a co staff Adetola Oluwakemi on 12-5-18 on the instruction of the Defendant and they were later handed over to EFCC at Ikoyi, Lagos but his co staff was released on bail on the said date while the claimant had to spentd 3 days in EFC custody before he was granted bail vide Exhibit CWG. The claimant averred at paragraph 22 of the amended statement of facts that he was suspended without pay by the Defendant on 13-5-15 vide Exhibit DWH. At paragraph 25, the Claimant averred that he was dismissed from the Defendant’s employment on 18-6-2015 vide Exhibit CWH. The claimant averred at paragraph 30 of the amended statement of facts that the procedure adopted by the Defendant leading to his suspension and dismissal was in breach of his right fair hearing as provided under the CFRN 1999 (as amended) and that he suffered humiliation, embarrassment and psychological displacement.

To the claimant, Chapter 11, page 11.4.1 of the EXC. CWL L 31 did not provide for suspension without pay. That the case of Amadiume v Ibok cited by the Defendant where the respondent was placed on compulsory leave is different from this case. I wish to pause here and say that I do not agree with the claimant’s argument that Amadiume vs Ibok is not applicable to the facts of this case. The case is an authority for the employers power to suspend an employee even by sending him on compulsory leave.

The Defendant’s argument in this regard is that Exhibit DWG shows that the Defendant had placed the claimant on suspension for the purpose of investigating “some observed irregularities with respect to our activities at Branch”. That Exhibit CWK –K40 is the report of the investigation conducted. To the Defendant, the Claimant cannot complain that his suspension is wrongful since Exhibit CWL-L31 affords the Defendant the right to place the claimant on suspension for the purpose of investigation where the allegation is a major one.

Now Exhibit DWG stated thus:

“Dear Chimezirim

SUSPENSION

This is to inform you that you are hereby placed on indefinite suspension without Pay with immediate effect. This is to allow for further investigation into some observed irregularities with respect to your activities at Ikorodu branch.

Kindly acknowledge receipt on the attached copy of the letter.

Yours sincerely

For: STERING BANK PLC

Chapter 11, item 11.4.1 of Exhibit CWL-L31 provides for the disciplinary procedure for major/severe offences. It stated among other things, thus:

” Disciplinary procedure for major/service offences:

(i) If indicated, you will be given a query from your Human resources or Inspection Units and required to give response.

(ii) You may be required to go on suspension pending the final decision on the allegations levelled.

It is clear from the above that the Defendant has suspended the claimant without pay, suspension without pay is not provided under Exhibit CWL-L31. It is trite that an employer has the right to suspended an employee with or without pay or at half pay. However, an employer cannot suspend without pay when there is no express contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it upon itself (outside the contract) to assess its own damages for the employee’s misconduct at the sum which would be represented by wages of the days employee remained suspended. See Ms. Claudia Ojinah v. Coxydyn Nigeria Ltd (unreported) Suit No. NICN/LA/111/2012 Mr. Emeka Onyema v Diamond Bank Plc. (unreported) Suit No. NICN/LA/326/2014. Given that Exhibit D.W.G was issued contrary to the terms of the contract between the parties, I find that the suspension of the claimant by the Defendant without pay is wrongful and I so hold.

Exhibit CWK-K40 contains among other things, the defendant confidential internal memo dated June 2, 2015 which contains the audit report. The claimant’s contention is that that by the said memo, he had been dismissed even before he appeared at the Disciplinary Committee, that it is evident from Exhibit CWK-K40 that the decision had already been made to wrongfully and maliciously dismiss him despite not being fingered in the alleged fraud while the perpetrators appointments were terminated by the Defendant. To the claimant, his fate having already been determined by the audit report in Exhibit CWK-K40 dated 2-6-15, the Disciplinary committee was just a gimmick.

In an attempt to establish the defendant’s failure to accord him fair hearing, the claimant went to the extent of misquoting the record of proceeding at paragraph 4.1 26 of his final address. The Claimant argued that the defendant’s disciplinary committee did not accept that the claimant had committed the fraud alleged against him. That the defendant did not tender the report of what transpired at the Staff Disciplinary Committee and by this had breached his right as an employee despite being exonerated from any crime or wrong doing is the E.F.C.C. and the provisions of the defendant’s staff handbook.

It seems the Claimant has misunderstood the Defendant’s reason for the dismissal. The Defendant’s case is that it dismissed the claimant not because he participated in the fraud but because breach of the Defendant’s Code of Conduct with regards to the use of his Core Banking Application Access to conduct unauthorised enquiry on the account of the National Automotive Council which led to the fraudulent transfer of the sum of N361,200,000.00 only from the said account. In other words, the Claimant was alleged to have compromised his user name and password which were used in conducting un authorised enquiry into a customer’s account. This being the case, the claimant’s arguments at paragraphs 4.1.38-43 are hereby discountenanced.

The Claimant’ s argument that the position of the law is that the Defendant had to wait for the outcome on the criminal investigation before it wrongfully dismissed him since it was a criminal allegation is, to my understanding, not the correct position of the law. The correct position of the law, as rightly submitted by the Defendant in its reply on point law, was stated by the supreme Court in the case of Arinze v. F.B.N. L.t.d. (2004) 12 NWLR (PT888) 663, thus:

“In cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence”

See also Imonikhe v. Unity Bank Plc (2011)12 NWLR (Pt.1262) P. 648, para H, 649, paras B-C.

In any event, while an employer has the right of dismissal, the law is that once an employer gives a reason for terminating or dismissing an employee the burden lies on him to justify the said reason for the dismissal.

Now Exhibit DWI is the letter through which the claimant was dismissed from the defendant’s employment, it is dated 18^th June, 2015, it is addressed to the claimant and it stated thus:

“………… Dear Alozie,

We refer to your involvement in the fraudulent transfers from a customer Bank at Abaji Branch, Ibadan andn your appearnce before eh staff Disciplinary Committee on June 11^th 2015.

Please be informed that your role in the case was a gross violation of the code of ethical conduct.

Consequently, you are hereby dismissed from the service of the Bank with immediate effect.

Kindly handover the Bank’s properties in your possession to your Branch Manager before your departure.

Kindly acknowledge receipt of the attached copy of this letter.

Yours sincerely,

For: STERLING BANK

Sgd. Sgd.

Human Resource Mgt. GH. Human Resource Mgt

The crux of the claimant’s argument on the issue of his dismissal is that the defendant did not justify the dismissal and that the disciplinary proceedings leading to his dismissal was a gimmick.

In justifying the claimant’s dismissal, the defendant at paragraph 4.4 of its final written address, cited the case of University of Calabar V. Essien (supra) and said that it followed the procedure laid down in Exhibit C8, I do not know what the defendant meant by Exhibit C8. The defendant said that it averred at paragraph 5 of its amended statement of defence that it informed the claimant through a query. (Exhibit DWE) that his Core Banking Access was used to conduct unauthorized enquiry on a customer account and that the claimant responded vide Exhibit DWE by which the Defendant was not satisfied, that it then placed the claimant on suspension vide exhibit DWG to enable it thoroughly investigate the mattter and that the report of the investifation is contained at pages 21-30 of exhibit CWK-K40 with alleged at paragraph 29 thus:

“A review of the Enterprise Log Management System revealed that on 10 April, 2015 the profile of Alozie Chimezirim, Service Manager (Back up) at Ikorodu branch viewed balance on the account of National Automotive Council 322/400638/1/1/0) on Banks at about 8:48pm using the function B39CUE3A (which is an enquiry used in checking customers ‘balances)”

That following the above, the claimant was invited to appear before Staff Disciplinary Committee vide exhibit DWH. The defendant then relied on the case of Olamide V Zest International Hotel (Supra) and argued that the claimant was informed of the allegation against him from the time he was served with EX DWG up to the time he appeared before the SDC and that he was granted fair hearing by referring him to the disciplinary Committee which the claimant has admitted at paragraph 5 of the reply to the amended statue of defence. The defendant further argued that in chapter 11 of Exhibit CWL –L31 offences are classified into minor, major and severe and that breach of confidentially, the allegation against the claimant, falls under severe offences. The defendant averred at paragraph 12 of the amended statement of defence that it invited the claimant on two occasions to face the SDC which he honoured but he failed to tender any reason for violating the defendant’s code of conduct on confidentially and it subsequently dismissed him and that upon the review of the decision of the SDC, the defendant’s management resolved to dismiss the claimant in line with chapter 6.1.3 of EX. CWL – L31.The defendant also tendered the code of ethical conduct, DWK – K54, the defendant also averred at paragraph 4.7 of its final written address that the disciplinary panel has followed the procedure contained in chapter 6.1.3 and 11.4.1 of exhibit CWL-L31 citing Dornier Aviation Nigeria Limited V. Captain Tunde Oluwadare (supra).

The Defendant contended further argued that its Management had accepted the report that the claimant had compromised his access (user ID and password) in conducting unauthorized enquiry on the account of NAC which led to the fraudulent transfer of N361,200.00 from the account placing reliance on EX CWK-K40 page 26 and 28 and that the basis of the conclusion made on the claimant in exhibit CWK-K40 is the evidence from enterprise Log Management System, EX DWN. To the defendant, based on the foregoing, the dismissal of the claimant was in accordance with the four salient principles highlighted in University of Calabar V. Essien and that the claimant has compromised his core Banking Application Access because he admitted under cross examination that “anyone can change the I.D but the password is personal and that once he logged into the core banking application, it would bring out his profile and that exhibit DWN was the proof that the claimant’s access was used to view or enquire on the NAC Account.

It is trite law that where an employer dismisses an employee on ground of misconduct, all the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee, that he was given fair hearing, that is to say, the rules of natural justice were not recalled and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation. See University of Calabar V. Essien (Supra).

The defendant’s reason for dismissing the claimant in this case is breach of confidentiality. Exhibit CWL-L31 is the defendant’s employee’s handbook, Chapter 11 contains the disciplinary procedure. Breach of confidentiality fails within the category of severe offences under item 11.4 (xi).

Chapter 11, item 11.4.1 provides for the disciplinary procedure for major/severe offences. It stated thus:” Disciplinary procedure for major/service offences:

(i) If indicated, you will be given a query from your Human resources or Inspection Units and required to give response.

(ii) You may be required to go on suspension pending the final decision on the allegations leveled.

(iii) Once investigations have been corrected at you may be required to appear before a Disciplinary Committee if you have a care to answer.

(iv) The Executive Management reviews and ratifies/nullifies/amends the decision as the case may be.

(v) Executives Management and the subsequently the Board may hear appeals from u, if you are dissatisfied with the outcome.

It is not in dispute that the claimant was issued a query (Exhibit DWE) to which he responded vide Exhibit DWE on the same date. The claimant was the placed on indefinite suspension without pay vide Exhibit DWG to give room for investigation. On 8^th and 11^th of June 2015, the claimant was invited to appear before the defendant staff disciplinary committee vide Exhibit DWH, the claimant has admitted that he appeared before the SDC in paragraph 5 of his reply to the amended statement of defence. On the 18^th of June 2015, the claimant was dismissed by the defendant. This being the case, I find that the Claimant’s argument that he was denied fair hearing by the Defendant is unfounded and I so hold. It is trite that accusing an employee of misconduct, e.t.c by way of query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirement of fair hearing or natural justice. See B.A Imonikhe v. Unity Bank Plc (2011) (Supra). And Dr Cecilia Arinye v. The University of Lagos (unreported)Suit No. NICN/LA/305/2017. The judgment of which was delivered on February 16, 2018.

In exhibit DWC, the claimant was asked to explain for what purpose he conducted a balance enquiry on the account of National Automotive Council using function B39cue3a on the 10^th April, 2015 at 8:48:29pm, the claimant denied the allegation in response and said there was no such transaction and that he left office at 6:48 pm while the key custodian and last staff left at 7:pm, Exhibit CWC is the attendance register of the defendant on 10^th April, 2015 and it showed that the claimant had signed out at 6:48pm as he claimed. However, Exhibit CWK-K40 at pages 21-30 contains a report on N361.2 Million fraudulent transfers from the account of National Automative Council, it is addressed to the defendant’s MD/CEO from Financial Crimes Commission through Chief Internal Auditor, at page 26, it stated thus:

“29.A review of the Enterprise Log Management System revealed that on 10 April, 2015 the profile of Alozie Chimezirim, Service Manager (Back up) at Ikorodu branch viewed balance on the account of National Automotive Council 322/400638/1/1/0) on Banks at about 8:48pm using the function B39CUE3A (which is an enquiry used in checking customers ‘balances).

Alozie Chimezirim’s network profile was active on the network between 8:25pm and 9:17pm on the 10^th April, 2015. However, we could not establish the system being used, as the IP Address of the machine was not logged on the application.
From the enterprise Log Management System, we observe that the profile of Kemi Adetola was observed to have been used to attempt internal transfer from NAT account to other fraudulent accounts on the 10^th April, 2015 between 7:24pm and 8:51pm.
Another attempt was made to post internal transfers from NAT account into one of the fraudsters account between 7:04pm and 7:34pm on the 17^th April but it was not successful. The profile of Kemi Adetola on Banks was used in carrying out this attempt.
Alozie Chimezirim network profile was observed to be active on the between 6:52pm and 7:28pm on the 17 April, 2015. Also, 30 April, 2015 his profile was observed to be active on BANKS up to 8:44pm. Though, he signed off on the Banks at 8:44PM he signed off the branch’s attendance register to have left the Branch by 9:40pm. No justification was provided for staying in the branch that late.
During our interview with Alozie Chimezirim, he denied viewing NAT Automotive account.”

At page 28, the report stated thus:

Relying on the report as per exhibit DWN, the defendant concluded that the claimant had compromised his core banking access which it termed as breach of confidentiality.

On confidentiality/dissemination of information, exhibit DWK-54 at pages 10-11, clause (ii) stated thus: –

“A member shall not disclose or permit the discloseure to any third party, any confidential information concerning his employer’s or customer’s business during or after employment aexcept as required or permitted/enjoined by law……”

As I said before now, the claimant has admitted under cross examination that his password is personal to him which I believe he had acquired during his employment in the defendant bank. Exhibit DWN is the review of the Defendant’s enterprise log system as at May 1^St 2015, it is the basis upon which the Defendant concluded that the Claimant had compromise his password. Breach of confidentiality in the banking industry is a gross misconduct that attract summary dismissal. The Defendant in this case has relied on Chapter 6.1.3 of Exhibit CWL-L31 in dismissing the Claimant, 6.1.3 stated thus:

“If in the Bank’s opinion, you are found guilty of any severe offence or in breach of certain disciplinary provisions as articulated in the Bank’s Code of Ethical Conduct in respect of which you are unable to exonerate yourself after being given an opportunity to do so, you shall be liable to summary dismissal without notice. This prerogative may be exercised by the Bank whether you are on probation or confirmed, and notwithstanding any other provisions in your employment contract. If this happens, you may only receive your salary up to date of dismissal any other legitimate entitlements due to you after deducting any recoverables.”

Now the Claimant having failed to give an account as to why his core banking access (username and password) was used in conducting such unauthorized enquiry in to NAC’s account, it is my humble view which I find and hold that the claimant has breached the defendant’s code of confidentiality. This being the case, I find that the defendant has justified the reasons stated in exhibit DWI that the claimant’s role in the case of the fraudulent transfer was a gross violation of the code of ethical conduct and I so hold.

Apart from relief i on which I earlier held that the Defendant was wrong in suspending the claimant without pay, none of the remaining reliefs succeed. Even reliefs iv and vi cannot be granted because they are claims for special damages which must be pleaded specifically and proved strictly. See NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC). The Claimant did not state the amount he is claiming as his salary for the period he was suspended without pay. On relief vi, the Claimant has failed to lead evidence of his entitlement to the amount claimed.

In sum, I find that the Claimant’s case has failed and it is hereby dismissed. I make no order for cost.

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HON. JUSTICE MUSTAPHA TIJJANI