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National Industrial Court

Dawodu Kazeem VS Zenith Bank Plc.

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

Date: March 08, 2018

 Suit No: NICN/IB/65/2014

Between:

Dawodu Kazeem

 Claimant

And

Zenith Bank Plc.

 Defendant

Representation:

S.M.A. Oladiran for the claimant.

Ayodeji Olaifa for the defendant/counter claimant

COURT JUDGMENT

This is a transferred case from the High Court of Justice, Kwara State sitting in Ilorin. In the regularized processes including the complaint filed by the claimant before this court, the claimant is seeking for the following reliefs against the defendant:

  1. A Declaration that the failure of defendant to allow the claimant to state his case before been suspended and dismissed is a violation of the Fundamental Rights of the claimant’s right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  2. A Declaration that the purported suspension and subsequent dismissal of the claimant is null, void and unconstitutional.
  3. An Order directing the defendant to pay the claimant’s salaries, allowances and other entitlements from the date of his purported suspension to the date of judgment.
  4. A Sum of N20,000,000.00 as general damages for wrongful dismissal.

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its statement of defence and a counter claim including its other defence processes in compliance with the Rules of this Court.

The defendant/counter claimant, counter-claims against the claimant/defendant to the counter-claims as follows:

  1. The sum of N47, 604, 610.86 being the balance of the depositors’ fund plus accumulated interest illegally and fraudulently disbursed by the claimant.
  2. Interest accrued on the said outstanding sum of N47, 604, 610.86 at the default rate of 44. 75% from 1st January, 2011 till judgment is delivered on the Counter Claim and thereafter at the same rate until the entire debt is fully liquidated

The case of the claimant is that after he was employed by the defendant, he assiduously worked and discharged his duties for the progress of the defendant without any report of dereliction of duties against him. As a result of the claimant’s handwork, honesty, integrity and commitment to the service of the defendant, he was graciously rewarded by the defendant with various promotions within the space of seven years and rose to the position of the Branch Manager of the defendant with implied power to grant short term loans in line with the customary practices in the institution (Zenith) in Offa Branch of the defendant. He went on that he granted short term loans to the sum of N19,000,000.00 (interest inclusive) to various customers of the bank at various occasions with high interest return to the defendant after making due consultations with the relevant authority of the defendant. The claimant averred further that barely three weeks of the claimant’s last promotion and upon assumption of duties at Ado-Ekiti Branch of the defendant, the claimant was placed on suspension and later dismissed.

The case of the defendant on the other hand, is that  the claimant in his capacity as the then Branch Manager, Zenith Bank Plc. Offa, in Kwara State caused to be issued to various customers of the Bank (Zenith Bank), loans of varying amounts and at different times. The total sum so issued as loan to the defendant’s customers rose to the tune of N 28, 785, 608.91 and later to N 47, 604, 610.86 shortly before this suit was commenced as a result of the accumulation of interest. It was after the transfer of the claimant to the Ado – Ekiti Branch of the defendant that these various disbursements of the loans as stated above were brought to bear through the efforts of the claimant’s successor at the Offa Branch of the defendant. The bank went on that the claimant’s attention was drawn to these discoveries and he was given ample opportunity to recover same. After failing to recover the said loan, he was suspended indefinitely; still not able to recover the money, the claimant was eventually dismissed.

During hearing of the case, the claimant testified as CW1, while Oladimeji Osonaike, testified on behalf of the defendant as DW1. In line with the Rules of this Court, counsel to the parties were directed to file their final written addresses by the Court and they complied with the direction.

In its final written address, the defendant raised objection to the admissibility of Document C9, the Procedural and Main Collective Agreement between NEABAI and ASSBIFI, before delving into the substance of the matter. To counsel, the document is a public document, which requires proper certification for it to be admissible in law, citing Section 104 (1) and (2) of the Evidence Act, 2011 and Northwest Energy (Nig.) Limited v. Ibafon Oil Limited [2016] All FWLR (Pt. 815) (CA) P. 347 paras E-F. Counsel also challenged the admissibility of Exhibit C6 on the ground that same is a photocopy whose origin is not known even though it was purportedly served on the defendant. Counsel continued that the defendant’s stamp is not on it to prove that the document is in the custody of the Bank.

Counsel also argued that the letters/memos dated December 2, 2008 and April 3, 2009 respectively; both marked as “Not listed” by the Court are admissible and capable of being used by the Court despite the fact that they were not listed as part of the documents to be relied on at trial. That there is no place in the National Industrial Court Rules, 2007 (with 2012 Amendment) that says documents are to be listed alongside the complaint when filing a complaint before the Court; referring to Order 3 Rule 4 (i), (ii), (iii) and (iv) of the National Industrial Court Rules, 2007 and that the Court is free to peruse a document before it in determining a case, regardless of the fact that same is not listed or admitted as an exhibit. On this, relied on the case of Uzodinma Izunaso (No.2) [2011] 17 NWLR (Pt. 1275) Pp. 54-55 paras E-A; Sanni v. Agara [2010] 2 NWLR (Pt. 1178) Pp. 398-399 paras G-A. He maintained that the National Industrial Court Rules, 2007 was silent on the issue of listing of documents sought to be relied on at trial and that the non-listing of the documents was as a result of the mistake and inadvertence of the counsel to the Defendant/Counter – Claimant whose sin is not supposed to be visited on the Defendant/Counter-Claimant, referring to Alawiye v. Ogunsanya [2013] 5 NWLR (Pt. 1348) pp. 607-608 paras. H – A.

The defendant/counter-claimant then formulated two issues for the court’s determination, which he wrongly numbered this way:

  1. a)Whether considering the totality of the evidence placed before this Honourable Court, the Defendant/Counter-Claimant breached the claimant’s right of fair hearing by terminating the claimant’s appointment.
  2. ii)Whether the claimant is entitled to the claims being sought in this suit.

Arguing the 1st issue, counsel submitted the defendant herein does not reckon or make use of Exhibit C9 in matters involving it and its various employees including disciplinary matters as contained in paragraph 27 of the defendant’s witness statement on oath dated 27th of February, 2015.  He continued that what regulates the disciplinary measures of the defendant and its employees is the Zenith Bank Plc. Human Resources Policy Manual (Exhibit D.11). That from the totality of the evidence placed before this Court by the claimant, there is no place where the claimant established the fact that Exhibit C9 was incorporated into his contract of service while in the defendant/counter-claimant’s employment and that the absence of this means that Exhibit C9 is not applicable and that it cannot be used by the defendant/counter-claimant while disciplining its erring employee, citing U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) P. 568 paras A-B.

Counsel continued that assuming but not conceding to the admissibility of Exhibit C9, he submitted that under Part 1 (Appendix “B”) stage ii and Article 4 (C) of the Exhibit, it is stated that the applicability of Exhibit C9 relates to employees below the Managerial cadre and same expressly excludes an employee such as the claimant while Article 4C also shows that the offences in contemplation are minor offences and not in the magnitude of those committed by the claimant.

Counsel submitted further that in Exhibit D11, it is not stated that the claimant or any of the erring defendant/counter-claimant’s employees is entitled to notice, payment in lieu of notice or be mandatorily queried before the termination of his/her employment. Rather, in page 76 of Exhibit D11, the defendant/counter-claimant is free to adopt any of the disciplinary measures as listed therein. He went on that the claimant was summoned to appear before a disciplinary panel before his eventual suspension and dismissal as contained in paragraph 29 of the written statement on Oath of the defendant’s witness dated 27/2/15 and that the claimant, having been given ample opportunity to defend himself for a period of over two years of his suspension before his eventual dismissal together with having being summoned to appear before the disciplinary panel before his suspension and dismissal; the claimant cannot turn around to complain of lack of fair hearing, citing Adebayo v. T.S.G. (Nig.) Ltd. [2011] 4 NWLR (Pt. 1238) pp.508-509 paras. C-D) and Newswatch Comm. Ltd. v. Atta [2006] 12 NWLR (Pt. 993) p. 159 para F & pp. 170-171 paras. H-B.

Counsel again argued that the defendant/counter-claimant strictly observed fairness and justice in terminating the claimant’s appointment with the Bank by giving him (claimant) the opportunity to recover the unauthorized disbursement of loans approved by him (claimant), when the Bank merely placed him (claimant) on indefinite suspension for over two years before terminating his appointment as he could not recover the loans which is termed “doubtful” till today. To counsel, natural justice and fairness would not have been at play if the defendant/counter-claimant had failed to terminate the claimant’s appointment at it did; citing Mpama v. F.B.N Plc. [2013] 5 NWLR (Pt. 1346) p. 198 paras. A-B.

Counsel noted that under cross- examination, DW1 stated that the use of Email is adopted to communicate and send memos within the defendant/counter-claimant’s establishment and that this piece of evidence was not contradicted by the claimant and so, the Court is free to rely on same, citing Mudasiru v. Abdullahi [2011] 7 NWLR (Pt. 1247) at 600; Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) p. 586, paras. D-F and N.A.S Ltd. v. U.B.A. Plc. [2005] 14 NWLR (Pt. 945) Pp. 437 paras D-F & p. 441 paras. G –H.

Arguing issue two, counsel submitted that the claimant is not entitled to the claims he is seeking for before this Court on the ground that he has not discharged the burden placed on him to satisfy the Court that he is entitled to the declaratory reliefs being sought. That the only document through which the claimant chose to prove his contract of service is Document D.1 (his letter of appointment dated 31st January, 2000). He maintained as stated in Document D1, the claimant’s appointment may be determined by two months’ notice in writing or payment of two months gross pay/salary in lieu of notice on either side, referring to lines 3-5 of paragraph 6 of the Document D1. He also cited in support Aji v. Chad Basin Development Authority & Anor [2015] 3-4 S.C (Pt. 111) (No page); Rector Kwara State Polythecnic v. Adefila [2008] All FWLR (Pt. 431) 914 at 982-983. Counsel further argued that the claimant got suspended indefinitely via Exhibit D10 on 30/4/2010 for about two years and three months before he was dismissed, which period to him is above the two months’ notice required in Exhibit D1.

Counsel canvassed that since it is clearly written in Exhibit D1 that the management of the defendant reserves the right to review and vary the conditions of service of its employees in this case and the claimant agreed to that term, it shows that the claimant’s employment was properly determined and that by extension, the claimant has by no means proved the wrong termination of his employment; either through lack of fair hearing or through any means at all and as such, he is not entitled to the claims he seeks before this Court.

Referring to paragraph 8 of Document D1, counsel also submitted that the claimant did not in any way prove his contract of service neither did he substantiate his claim; hence, these omissions have made him not to be entitled to the claims he is seeking for.

Counsel went on that the claimant’s employment does not enjoy statutory flavour to necessitate the defendant going through a stringent procedure before the claimant’s employment can be validly determined, citing Gov., Ekiti State v. Akinyemi [2011] 17 NWLR (Pt. 1276) (p. 413 paras C-E). To counsel, assuming but not conceding to the fact that the claimant’s employment was terminated in a manner inconsistent with the terms of the contract of employment, he maintained that the claimant will only be entitled to the two months’ salary as payment in lieu of notice as stated in Exhibit D1 and not to the frivolous claims stated in paragraphs 23 (e), (f), (g) and (h) of the claimant’s statement of facts of November 12, 2014. He referred the Court to the case of Spring Bank Plc. v. Babatunde [2012] 5 NWLR (Pt. 1292) p. 101, paras. A-C); Shitta – Bay v. F.P.S.C. [1981] I SC 40 and Olatunbosun v. Niser Council [1988] 3 NWLR (Pt. 80) (No page).

In addition, counsel submitted that the claimant’s claims in paragraphs 23 (e) and (f) of his statement of fact is declaratory in nature which is never granted as of right but that the party seeking same must as a matter of necessity, prove that he/she is entitled to such declaratory relief even if the other party has admitted his claim; because he who asserts must prove, citing Aregbesola v. Omisore [2015] 15 NWLR (Pt.1482) Pgs. 297-29 F-A & 311 paras E-G); Dumez (Nig.) Ltd. v. Nwakhoba [2008] 18 NWLR (Pt. 1119) @ 361 and Omole v. Colodense [2011] 16 NWLR (Pt. 1272) P.17 paras A-C.

In respect of the defendant’s counter-claim, (even though counsel to the defendant did not frame any issue on the counter claim for Court’s determination) counsel submitted that the claimant executed or cause to execute a lot of anti-bank policies inimical to the corporate existence of the defendant/counter-claimant  without any authority and fraudulently by approving and disbursing loans/overdrafts to various customers of the defendant while he was the Branch Head of Zenith Bank Plc., Offa Branch; referring to Article 201.1 (i) to (ix) as contained in Document D3, (Zenith International Bank Ltd Credit Policy Manual) and Document D.11 ( Zenith Bank Plc. Human Resources Policy Manual). He went on that the claimant admitted to have illegally disbursed N19.6 Million as against the N28.9 Million he was alleged to have illegally disbursed. To counsel, a fact already admitted needs no further proof, citing Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) P. 586 paras D-F. Therefore, he submitted that the claimant is liable to pay to the defendant, the sum of N47, 604, 610. 86k at the default rate of 44. 75% from 1st January, 2011 till judgment is delivered, thereafter at the same rate until the entire debt is fully liquidated and urged the Court to so hold.

In the claimant’s final written address, counsel formulated two issues for Court’s determination this way:

  1. Whether the “indefinite suspension without pay” and subsequent dismissal of the claimant was wrongful and in flagrant breach and violation of the terms of contract entered into between the claimant and the defendant.
  2. Whether the Claimant has proved his case based on balance of probabilities and preponderance of evidence to entitle him to judgment in all the heads of claims.

Arguing the first issue, counsel submitted that it is a fundamental principle of the law of evidence that he who asserts must prove, citing Section 123 Evidence Act 2011. He submitted that an employee who seeks a declaration that his employment was wrongfully determined must prove the following material facts: a. that he is an employee of the defendant b. the terms and condition of his employment c. who can determine his employment and d. that the way and manner the terms and conditions of his employment were breached by his employer, citing NRW Ind. Ltd. v. Akingbulugbe [2011] 11 NWLR (Pt. 1257) CA (No page). He further submitted that it is uncontroverted that the claimant was employed by the defendant vide a letter of employment of January 31, 2000 (Exhibit D1) and that the terms and conditions of the claimant’s employment is contained in Exhibit D1 and the defendant’s Human Resources Policy, (Exhibit D.11). He went on that the allegation of granting of unauthorized overdraft facilities to customers levied against the claimant emanated from a memo dated January 15, 2008 of the claimant’s successor-in-office, Mr. Foluso Omolowo to the defendant, (Exhibit D.5) and that the claimant was never aware of this memo at any time prior to his suspension and dismissal.

Counsel maintained that the claimant was suspended contrary to relevant provision of Exhibit D.11, Clause 1003 on Query procedure at page 76 of this document and to the provisions in item 202 and 202.1 at pages 17 of Exhibit D3 on the setting up of Credit Exception Committee on the management and reviewer of credit related and credit operational issues on overdraft facilities. He continued that the claimant was not given fair hearing or any opportunity to cross-examine his accuser over the allegations made against him before he was dismissed by the defendant, citing Adedeji v. Police Service Commission [1967] All N. L. R. 67; Denloye v. Medical and Dental Tribunal [1968] I All N.L.R 306, Electricity Corporation of Nigeria v. George Nicol [2007] 7 NLLR (Pt. 17) page 85 at 88; Falomo v. Lagos State Public Service Commission [2007] 8 NLLR (Pt. 21) page 170 at 174; Lawrence Idemudia Oborkhale v. LASU [2013] 30 NLLR (Pt. 85) 1 NIC; Imonikhe v. Unity Bank Plc [2011] 12 NWLR Pt. 1262) 624 AT 640; Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 SC and Ata Poly v. Maina [2005] 10 NWLR (Pt. 934) 487.

Counsel went on that a compound reading of the entire clauses referred to in the Exhibit D.11 Clause 1003 at page 76, and Exhibit D3, item 202 and 202.1 at pages 17 is to the effect that on ‘suspicion’ a staff has been alleged to have committed an offence, a query issued to him in writing setting out the allegations made against him and calling upon him to submit his representation/defend himself in writing within 48 hours. Where the offence is considered serious (like in this case, on credit related) the Audit Unit upon investigation, should refer the matter to the Credit Exception Committee, to have the matter investigated and where it is necessary, to constitute a disciplinary committee on it.

Counsel contended that there is nothing on the other side of the balance to contradict the evidence that the claimant was never issued a query, neither was he invited to any disciplinary committee nor was he served with the memo, Exhibit D5. Hence, the evidence; therefore, stands unchallenged and should be accepted by the Court, citing Adejumo v. Ayantegbe [1989] 3 NWLR (Pt. 110) page 417 at 424; Nigeria Social Insurance Trust Fund Management Board v. Klifco Nig. Ltd. [2010] (Supra). To him, the claimant has led credible evidence to show that the disciplinary procedure stipulated in Exhibit D.11 was not complied with and the burden of showing that the disciplinary procedure for the suspension and consequent dismissal of the claimant in line with the defendant’s Policy manual was followed had shifted to the defendant, which the defendant had failed to discharge.

Also, counsel submitted that the defendant’s Exhibit D.11 did not make any express provision on suspension of the defendant’s employees without pay; while acknowledging the fact that the bank can suspend the claimant, he maintained that it certainly cannot suspend him without pay as it did in this case; hence, the long suspension of the claimant without pay for 28 months is vindictive, mala fide and amount to unfair labour practice, citing Olafimihan And Ilodiba v. Nigerian Cement Co. [1997] 53 LRCN 2507; Lasisi Gbadegesin v. Wema Bank Plc. [2012] 28 NLLR (Pt. 80) 274 NIC and to Section 13 of the National Industrial Court Act, 2006.

On wrongful dismissal of the claimant, counsel submitted that, while no reason was given for his dismissal; the series of events culminating to the dismissal provided sufficient grounds as to the reason for the dismissal in Exhibit D10; which is in paragraphs 22 of the statement of defence and particulars of fraud alleged but not supported by the evidence on oath of the defendant. Counsel went on that for a case of fraud to be justifiable; the alleged fraud against the claimant must be proven as provided for in paragraph 1204 of Exhibit D.11 and in the absence of this, the dismissal of the claimant is wrongful.  Counsel urged the court to give full probative value to Exhibits D.11 and C.9 and further submitted that the claimant’s dismissal is contrary to the disciplinary procedure set out in these two Exhibits, referring to Calabar Cement Co. Limited v. Daniel [1991]4 NWLR (Pt. 188) 750; Olanrewaju v. Afribank (Nig.) Plc. [2001] 13 NWLR (Pt.731) 691; Institute of Health, Ahmadu Bello University Management Board v. Mrs. Jummai R. I. Anyip [2011] LPELR-1517 (SC); Adeki v. Ijebu-Ode District Council [1962]1 SCNLR 349, Anite v. University of Calabar [2001]3 WLR (Pt. 700) 239 (CA), and UBN Plc. v. Soares [2012]29 NLLR 329; Adbury (Nig.) Plc. v. Club Omni O. Oni [2013] All FWLR (Pt.665) 251 At 273 Para B and S.36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 As Amended.

Arguing issue two, counsel submitted that the claimant is entitled to all the reliefs endorsed upon his amended statement of facts in the substantive suit herein. The claimant during the trial tendered Exhibits C.1, which corroborates his evidence on oath in paragraphs 2 and 5 of the statement on oath to show that he was an employee of the defendant’s bank, a fact, also admitted by the defendant’s witness at paragraphs 35 and 36 of his written statement on oath sworn of February 27, 2015.

On the claim for his salaries, allowances and other entitlements; counsel submitted that the claimant pleaded in paragraph 23 of the Amended statement of facts showing a breakdown of the claimant’s entitlements representing a total sum of N1, 368,393.00. The claimant put the defendant on notice to produce the pay slip in proof or denial of the actual sum being earned by him. Interestingly, the defendant failed to produce the Pay slips despite repeated demands and Court’s intervention.

Counsel adopted his submission in Paragraph 3.02 – 3.45 in this written address wherein he argued that the indefinite suspension of the claimant without pay was wrongful and same was in complete violation of the conditions of service, which empowers the Bank to suspend the claimant.

Additionally, counsel contended that it is part of the claimant’s evidence that the defendant did not pay his salaries and allowances from January 21, 2008 to April 30, 2010 (28 months), which averment was not denied nor controverted by the defendant. Counsel, therefore; submitted that the claimant was still a staff from January 21, 2008 to April 30, 2010 and that the defendant is obligated to pay him his emolument for that period, which is the sum of N1, 368,393.00 monthly, citing Longe v. F.B.N [2010] All FWLR (Pt. 525) 309-310.

Counsel again contended that a cursory look at the letter titled “Dismissal” (Exhibit D10) reveals that the intention of the author of the letter was clear when he stated that the dismissal will take effect from the April 30, 2010 and not the date of the purported Suspension. He continued that it is trite that when the context of a document is clear and unequivocal, it should be given its ordinary meaning. If the author’s intention was for the claimant not to be entitled to his salary for the period between the suspension and dismissal, he could have made it clear in the said letter by given the letter of dismissal a retrospective effective date of January 21, 2008; which is not the case here. Counsel referred the Court to the cases of A.D. v Fayose [2005] 10 NWLR (Pt. 932) pg. 151 @ 194 paras A- D; Steel Company Ltd. v. S. A. Role & 147 Ors [2011] 27 WRN 124 @ 146; Nacenn Nigeria Limited v. Bewac Automative Producers Limited [2011] 27 WRN 1 @ 17; Egbuna v. Egbuna [1989] 2 NWLR (Pt. 106) 773; A.C.B. Ltd. v. Ufondu [1997] 10 NWLR (Pt.523) 169, Yussuf v. UBN Ltd [1996] 7 NWLR (Pt. 463) 746 CA; Shell Pet. Dev. Co. v. Lawson Tack [1998] 4 NWLR (Pt. 545) 249, Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142; Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87; Osamota Macaulay Adekunle v. UBA Plc. in suit No: NICN/IB/20/2012 delivered on May 21, 2014.

In response to issues raised in paragraphs 3.0 – 3.9 and 4.0 – 4.10 of the defendant’s written address on the defendant’s objection to the admissibility of the documents tendered by the claimant during trial and also on the admissibility of documents tendered by the defendant which were marked “not listed” by the Court; the claimant’s counsel submitted that the defendant’s argument amount to approbation and reprobation on the same point. He went on that a cursory look at Exhibits D3 and D11 also tendered by the defendant reveals that the documents were also not certified in compliance with the Evidence Act. To him, the claimant is at one with the defendant’s argument that for the admissibility of a public document; proper certification is required, and as such, the name and the official title of the officer who certifies the document must be indicated on the document. He further submitted that this provision does not allow any exceptions. Therefore, Exhibit D3 and Exhibit D11 fall in the same boat with his Exhibit C9 as these two exhibits only show the name of the officer who purportedly certified them without including his official title. He went on that these are sought of defects that can be cured by the provisions of Section 12 (2) of the National Industrial Court Act, 2006; which allows the Court to dispense with strict compliance with the provisions of the Evidence Act and urged the Court to so hold.

Responding to the defendant’s argument in paragraphs 5.3 and 5.4 of its final address that the absence of incorporating Exhibit C9 into the claimant’s letter of appointment/Contract of Service is fatal to the claimant’s case, counsel maintained that this piece of argument is misconceived. He referred to the missing Pages 5 of Exhibit D11 under “General Provisions”, which states that in matters affecting staff, the defendant is bound by and must observe the provisions of Collective Agreements in the spirit as well as letter. Therefore, the Court can rely on Exhibit C.9 to reach its decision in this case on this score.

On the counter claim, counsel submitted that upon a synoptic appraisal of the facts and circumstances of this case as well as the evidence adduced before this Court, the Counter-claimant has not made out a case to entitle it to all the reliefs sought in its Counter-claim. That it is trite that in civil cases, Judgment is purely on balance of probability, citing U.B.N. Plc. v. Scpok (Nig.) Ltd [1998] 12 NWLR (Pt. 578) page 439 at 445 ratio 1.

Counsel argued that that the Counter-claimant did not give any evidence of the indebtedness of the defendant to counter-claim apart from tendering the disbursement sheet, Exhibit D7. To counsel, the documents available to the Court show different figures being outstanding from the customers. He maintained that the counter-claimant admitted in the written statement on oath that the sum of N11,182,235.49 was recovered by the defendant to counter-claim, it further admitted receiving the sum of N1,500,000.00 from the Police on this debt and that it is in evidence that the main customer in question has submitted his document on his landed property that is worth more than the sum claimed to the counter claimant. He submitted that a shadow of doubt is thus cast on the counter-claim as to how the Bank arrived at the sum of N47,604,610.86 being counter-claimed. That a careful examination of all the documents tendered by the counter-claimant show that the amount of N47,604,610.86 is not in any of them. And since the varying interest rates over the relevant period has not been shown or in evidence before the Court; counsel submitted that it will be incorrect to presume and accept the amount N47,604,610.86 as debt against the claimant to the Bank.

Furthermore,  counsel submitted that it is the law that before an established fact is falsified, believed or disputed; the contrary of such fact also alleged to be true, had to be established to enable the Court or Tribunal to decide and or determine, which side of the scale the evidence adduced preponderates and where the balance of probabilities lie. Consequently; mere dumping of documents such as Exhibits D7, D9, D12 and D13 by the DW1, without demonstration and delineation of the purposes for, which the documents were tendered amounts to an exercise in futility. That the Court is not and should not be expected to make out cases for a party which such a party has not made out for himself/herself. This is more so, that Courts are not expected to conduct private inspection or investigation of documents in the recess of its chambers and in the absence of open demonstration having been conducted thereon in the course of hearing before them, citing Iliyasu & Anor v. Adamu & Ors [2008] LPELR/EP-CA/K/EP/SHA/48/2007.

Counsel also submitted that the counter-claimant’s relief on interest that interest can only be claimed as of right and where there is a power conferring it by statue,  citing Reuben Ekwunife v. Wayne (W.A) Ltd [1989] (Pt. 122) PG 422; Henkel Chem Ltd v. AG Ferrero & Co [2003] 4 NWLR (Pt. 810) at 306. Counsel submitted that the counter- claimant is not entitled to the reliefs sought as the totality of the evidence adduced does not justify the counter-claim.

In the defendant/counter-claimant’s reply on point of law to the claimant’s final written address, Counsel submitted that the two letters dated 2/12/08 and 3/4/09 written by the Claimant to the Defendant is a pure admission to some of the infractions being complained of by the Defendant and in law, no proof is required for a fact already admitted citing Skye Bank Plc. v. Akinpelu [2010] All FWLR (Pt. 526) P. 485 Para. E.

On whether the procedural and main collective agreement, Exhibit C9 is binding on the defendant as shown under paragraph 3.3 and the argument of the claimant under paragraph 5.4 of his final written address, counsel submitted that a document sought to be tendered by a party must satisfy the admissibility test. A document which has failed to do so can never be cured by the provision of Section 12 (2) of the national Industrial Court Act 2006 cited by the claimant, referring to Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) P. 294 paras. D-H.

Reacting to paragraph 4.2 of the claimant’s final written address, counsel referred the Court to Spring Bank Plc. v. Babatunde [2012] 5 NWLR (Pt. 1292) P. 101 Paras C-D wherein it was held that: “A Servant who has been unlawfully dismissed cannot claim his wages for services never rendered”. Thereafter, counsel went on to re-argue his case in the said reply on point of law.

COURT’S DECISION

I have carefully gone through the facts of this case, the extensive written arguments of counsel to both parties and the authorities they referred to; both statute and case law. From all these, I am of the firm view that the following issues need to be determined:

  1. Whether or not the defendant is allowed to suspend the claimant indefinitely and without pay by the terms and conditions of the contract of employment between the parties.
  2. Whether or not the defendant rightly dismissed the claimant from its service in line with the same terms and conditions of their contract of service.
  3. Whether or not the claimant is entitled to his salaries and allowances from the date of his indefinite suspension without pay until the date of this judgment as claimed and that he is entitled to claim N20,000,000.00 general damages for wrongful dismissal.
  4. Whether or not the defendant is entitled to its counter claim against the claimant.

 

PRELIMINARY ISSUES

Before going into the merit of the case, I need to resolve some preliminary issues raised by both parties in their addresses. Firstly, the defendant’s counsel argued extensively for the admissibility of letters/memos dated December 2, 2008 and April 3, 2009; which were marked as ‘not listed’ by the Court during trial. More so, that it was not a requirement in the rules of Court when this action was filed that parties should file list of documents they are relying on; particularly at the time when the defendant entered their defence and also because the Court is free to peruse a document before it in determining a case; regardless of the fact that same was not listed or admitted as an exhibit. From the Court’s record, the defendant filed their processes on May 28, 2015; see pages 463 to 690 of the record. This means that the documents were filed under the old rules of the Court, the NIC Rules, 2007 when it was not a requirement to file list of frontloaded documents in this Court like it is now provided for in Order 3 Rule 9(d) of the current rules of Court, the NICN (Civil Procedure) Rules, 2017. Again, it is a fact that the letters/memos dated December 2, 2008 and April 3, 2009 were pleaded in paragraph 11 of the statement of defence and counterclaim at page 68 of the record. Therefore, for all these findings, I hold that the argument of the defendant’s counsel on the said documents has merit and it is accordingly upheld. The said letters/memos of December 2, 2008 and April 3, 2009 respectively at pages 681 to 683 of the record, which were marked as ‘not listed’ will be considered and relied on in this judgment.

Secondly, in paragraph 3.9 of the defendant’s final written address, counsel challenged the admissibility of Document C.6 relied on by the claimant on the ground that it is a photocopy. This document is at page 15 of the record, it is a letter titled “Sale of Property: Bukar Mohammed Hassan” dated February 24, 2009. I really do not understand what the defendant’s counsel wants to achieve with this argument because all his client’s documents too relied on by them are also photocopies. I need not belabour this issue and I hereby find and hold that the fact that the documents relied on before this Court in this case are photocopies simpliciter, is not a fundamental defect as this can be cured by the provisions of section 12 (2) of the NIC Act, 2006. This section permits this Court to depart from the strict provisions of the Evidence Act in the interest of justice. On this score, the objection of the defendant to the admissibility of Document C.6 is overruled. I further hold that Document C.6 was properly admitted in this case.

Furthermore, the defendant’s counsel objected to the admissibility of Document C.9 under section 104 (1) and (2) of the Evidence Act on the ground that it is a Public Document and that it was not certified. This document is at pages 18 to 45 of the record, it is the “the Procedural and Main Collective Agreement between The Nigerian Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) 2005”. This document does not form official acts or records of the official acts, neither is it a public record kept in Nigeria of private documents. I, therefore, find and hold that Document C.9 is not a public document under section 102 of the Evidence Act, 2011 and so it does not need certification.

Again the claimant challenged the admissibility of Documents D.3 and D.11 relied on by the defendant on the ground that they were not properly certified. These documents are at pages 479 to`576 and 592 to 680 respectively. They are Zenith International Bank Ltd Credit Policy Manual and Zenith Bank Plc. Manual. These two documents are not Public Documents under section 102 of the Evidence Act; and so, I hold that they are covered by the provisions of section 12 (2) of the NIC Act, 2006 in this Court. The claimant’s objection against their admissibility is accordingly overruled.

Additionally, the claimant cited and relied on an unreported decision of this Court, apparently decided at Lagos Division of the Court without making available its certified true copy to the Court and to the defendant’s counsel as required by the provision of Order 45 Rule 3 (1) of the NICN (Civil Procedure) Rules, 2017. Therefore, the cited unreported authority of the claimant is discountenanced in this judgment.

As well, the defendant’s counsel did not formulate any issue to resolve by the Court on the Bank’s counter-claim in the defendant’s final written address. See page paragraph 5.1 of the address at page 703 of the record. Ordinarily, this suggests that the defendant has abandoned its counter-claim; but the counsel went ahead and argued the counter-claim extensively in his written brief. In the interest of justice; therefore, the Court will consider the merit of the counter-claim in this judgment. I hope the defendant’s counsel will avoid such omission in future.

Also, counsel to the claimant kept using the words amended written statement on oath in his address; let me remind the counsel that evidence on oath cannot be amended, the deponent can only depose to additional/further written statement on oath to add to or subtract from the already deposed written statement on oath with explanation; I hope counsel takes notes of this. Again, the defendant’s counsel kept using the word ‘termination’ instead of dismissal, counsel should bear in mind that the two words have different meanings with dissimilar legal implications. Counsel should be consistent with the use of his words and should always maintain his lane as crossing to another lane could lead to disqualification.

In respect of the written brief of arguments of counsel to both parties, they are unnecessarily long in my considered view. On a matter mainly involving indefinite suspension and dismissal; counsel are doing 27 and 32 pages written briefs respectively and 18 pages reply on points of law is not really the best. The briefs can be concise and counsel will still make their cogent points, rather that doing long and repetitive arguments; I hope counsel bear this in mind and begin to work towards that on their subsequent briefs in Court.

Can the Court rely on Document C9 – the Procedural and Main Collective Agreement between NEABAI and ASSBIFI in the determination of this case?

The law is that, whenever any Collective Agreement is intended to create legal relations between an employer and a worker; such agreement must first of all be incorporated expressly or by implication into the contracts of employment of the parties, so as to make it binding on the parties and be justiciable; see the case of Osho & ors v. Unity Bank Plc. [2014] 46 NLLR (Pt. 148) 164 at 209 SC.

It is the argument of the defendant’s counsel that this document is not applicable to this case because it is not incorporated into his contract of service between the parties. Counsel to the claimant on the other hand, contended in paragraphs 3.61 – 3.63 of his final written address that the missing Page 5 under “General Provisions” from Document D.11, the defendant’s Human Resources Policy Manual; states that “in matters affecting staff, the defendant is bound by and must observe the provisions of Collective Agreements in the spirit as well as letter”, hence the content of Document C9 is applicable to this case. However, the claimant did not supply the missing page neither did he give the Court a complete copy of Document D.11 that includes that missing page 5. The claimant is the one contending that this Collective Agreement (Document C.9) is incorporated in the contract of service between the parties, so; he has a duty to prove same. It is trite that the case of the claimant stands or falls upon his own evidence and not upon the weakness of the defence, see West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-190 paragraphs D-A. I find that the claimant has failed in his duty to prove that this Collective Agreement was incorporated into the contract of service between him and the defendant. It is not the duty of this Court to speculate on the content of the missing Page 5 of Document D.11, see the cases of Olalomi Industries Ltd v. NIDB [2002] 17 NWLR (Pt. 795) 58 CA and Federal Mortage Bank v. Ekpo [2005] All FWLR (Pt. 248)1667 at 1681.

Besides, the claimant did not plead that he was part of or a member of the parties to the Collective Agreement (Document C.9) and the law is that a non-member of a Trade Union(s) to a Collective Agreement cannot enforce the Agreement neither can he benefit from it against his employer, see NUPENG v. MWUN [2015] 16 NLLR (Pt. 214) 404) at 462. Therefore, I hold that the Collective Agreement in Document C9, titled: the Procedural and Main Collective Agreement between NEABAI and ASSBIFI, 2005 cannot be enforced by the claimant against the defendant in this case.

The documents that regulate the employment relationship between the Parties

From the record, the claimant was employed by the defendant vide a letter of employment, Document C1/D1 dated January 31, 2000. Paragraph 7 of this Document state that the claimant will also be bound by the general conditions of service of the defendant and both parties jointly agreed in evidence that the terms and conditions of the claimant’s employment are as contained in Document C.1/D.1 and in the defendant’s Human Resources Policy, (Exhibit D.11). I, therefore; find and hold that Document C.1/D.1 and Document D.11 contain the terms and conditions of the contract of employment between the parties and that the parties’ rights, duties and obligations are regulated by these documents. In the circumstance, this Court will respect the sanctity of this contract as so specified and not allow a term on which there was no agreement to be read in to it as held in the case of Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) SC 96 at 115 paragraphs C-E.

THE MERIT OF THE CASE

  1. On suspension

It is not in dispute between the parties that the claimant was put on indefinite suspension without pay prior to his dismissal by the defendant. The indefinite suspension was with effect from January 22, 2008; see Document C.3 titled ‘Indefinite Suspension’ at page 12 of the record until April 30, 2010 when he was dismissed vide a letter titled ‘Dismissal’ see Document C.7 at page 16 of the record. On this issue of suspension; therefore, Document D.11, Zenith Bank Plc. Human Resources Policy Manual is apposite. Paragraph 1003 of this document at pages 668 and 669 of the record states that one of the disciplinary measures the defendant can invoke on its erring staff is ‘indefinite suspension’. The paragraph goes on to provide that:

Suspension

All cases of suspension will be treated with dispatch.

A staff under suspension shall be required to hand over any account books or records, keys and any other property of the bank in his/her charge to the departmental/branch head or human resources; and he shall be forbidden to carry on his/her duties and to visit his/her place of work except with the express permission of the management.

Every departmental/branch head shall maintain disciplinary records of staff under his/her supervision.

While I agree with the defendant that it has power to suspend the claimant indefinitely, it is not stipulated in Document D.11 that the defendant Bank can indefinitely suspend the claimant without pay. Since, there is no such express provision in the terms and conditions of the contract that the claimant can be suspended indefinitely without pay, then, case law principle on this issue applies. This law states that where an employee is placed on suspension, his employment/appointment is merely placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours; see the case of S.P.D.C. (Nig.) Ltd. v. Emehuru [2007] 5 NWLR (Pt. 1027) 347 at 376 Paragraphs C- E. This Court also held in Mr. Christian Ehisotie Ilegbodu v Skye Bank Plc. unreported Suit No: NICN/PHC/110/2013 judgment of which was delivered on the June 3, 2015 this way:

With respect to the claimant’s claim for payment of his salaries for the period of his indefinite suspension without pay; to suspend an employee means to defer, interfere, interrupt, lay aside, temporize or hold in abeyance his employment. It does not mean that his employment is terminated, extinguished, or brought to an end. See Mobil Producing Nigeria Unlimited v. Effiong [2011] LPELR-CA/C/204/2009. An employee so suspended lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours. See the Court of Appeal decision Per Dongban – Mensem JCA in S.P.D.C. (Nig.) Ltd. v. Emehuru [2007] 5 NWLR [Pt. 1027] 347 at 376 Paras C- E (CA). In the case of Longe v. First Bank of Nig. Plc. [2010] LPELR-SC.116/2007: [2010] All FWLR (Pt. 525) 259 the Supreme Court Per Oguntade JSC. (P.43 paras A-E) held that “the word ‘suspension’ — carries or conveys a temporary or transient disciplinary procedure which keeps away the victims or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension, results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct.”

The purport of these decisions is that as long as an employee is on suspension either for a fixed period or indefinitely; with or without pay, his employment is still intact, except it is otherwise expressly provided in his terms of employment. Thus, he is entitled to his salaries and allowances for the period in question.

The above holding is still the position of this Court on instances like this, since that position is not yet upturned by the Superior Court. Consequently, I find and hold that the claimant is entitled to his gross salaries and allowances for the period of his suspension of 28 months (from January 22, 2008 to April 30, 2010) without pay, prior to his dismissal, which are to be calculated based on the claimant’s last earned salary from the defendant.

Whether the claimant was rightly dismissed

Document C.7/D.10 is the letter of dismissal issued to the claimant by the defendant. Document C.7 is at page 16 of the record and it states:

This is to advise that effective April 30, 2010 you are dismissed from the services of the Bank.

Please handover your identity card and all other bank’s properties in your possession to the Head of Human Resources.

The law is that in private employment relationship also known as master and servant relationship, the determination of an employment by the employer in a manner that is inconsistent with the terms of the employment agreement can only be wrongful; it cannot be declared null and void. It is also trite that an employee who complains that his employment has been wrongfully terminated/dismissed has the onus to: 1. Place before the Court the terms of the contract of employment; and 2. Prove in what manner the said terms were breached by the employer, see Geidam v. NEPA [2015] 60 NWLR (Pt. 210) 329 at 361 -362; Wilbros Nig. Ltd. & Anor. v. Macaulay [2009] LPELR-8507(CA) and Mighty Plastic Ind. Ltd v. Okeke [2016] LPELR-41034(CA).

The argument of the claimant in the instant case is that the defendant did not give him fair hearing before his indefinite suspension and dismissal, therefore; his dismissal was contrary to the terms and conditions of his employment. On the other hand, counsel to the defendant contended that the dismissal of the claimant was in line with the defendant’s Zenith Bank Plc. Human Resources Policy Manual (Document D.11).

Document D.11 is at pages 592 to 680 of the record. Paragraph 1204 of this document is on Summary Dismissal and it is at page 678 of the record. The paragraph states that “ZENITH BANK may summarily dismiss, without any entitlement, employees who commit any of the following offences: —” and then listed twelve different offences for which an erring staff/employee of the defendant can be so dismissed without entitlement.

In Document C.3, the letter of indefinite Suspension at page 12 of the record, the claimant was so suspended by the defendant based on its “Management’s attention been drawn to various unauthorized overdrafts totaling N28.79m — disbursed by the claimant — as the Head of Offa Branch of the defendant bank”; to enable the claimant concentrate on full recovery of the said overdrafts. However, going by the content of the claimant’s letter of dismissal, Document C.7/D.10; no reason was given for his dismissal neither was the dismissal based on any of the list offences in Document D.11, contrary to the said terms and conditions of his employment. Regardless of the extensive addresses of both counsel on the accuracy or otherwise of the allegation in the letter of Indefinite Suspension against the claimant; the fact that the claimant was dismissed without any reason make those arguments in consequential because the said allegation was not considered for the claimant’s dismissal. In the same vein, all the broad arguments of counsel to the parties on fair hearing are unnecessary and in fact not relevant here as that question does not come to fore. For instance, the defendant exhibited four documents to proof that the defendant Bank rightly dismissed the claimant. These are Document D.5; the memo alleging the infractions of the claimant, Document D.11; the Defendant Human Resources Policy Manual also known as the terms and conditions of the contract of employment between the parties and the two memos dated December 2, 2008 and April 3, 2009 written by the claimant (Initially marked as “Not listed” but which the Court has decided to rely on in this judgment). None of these documents provides justification for the dismissal of the claimant on ground of proven case of fraud etc. within the contemplation of paragraph 1204 of Document D.11. More so that the standard of prove of criminal allegations even in civil cases is ‘beyond reasonable doubt’ as provided in section 135 (1) of the Evidence Act, 2011. See also section 254C (5) and section 254F (1) of the Constitution of the FRN of Nigeria, 1999  as amended on the provision that, for the purpose of exercising its criminal jurisdiction, the provisions of Criminal Code, Penal Code, Criminal Procedure Act, Criminal Procedure Code and those of the Evidence Act shall apply.

Also, there is no evidence before the Court that the case of the claimant was investigated by the Credit Exception Committee as provided for in items 202 and 202.1 of Document D.3 at page 494 of the record. The proven evidence before the Court is that no reason was given for the dismissal of the claimant in Document C.3 at page 12 of the record. This is the ordinary and plain meaning of the content of Document C.3 and this Court is not allowed to introduce any additional words, clauses or reason for the dismissal into this letter; see the following cases on this principle of interpretation of documents: Julius Berger Nigeria Plc. & Anor v. Toki Rainbow Community Bank ltd [2009] LPELR- CA/PH/365/2006; International Standard Securities v. Union Bank of Nigeria Plc. (Registrar’s Department) [2009] LPELR-CA/A/127/05 and Union Bank of Nigeria Limited & Anor v. Nwaokolo [1995] 6 NWLR (Pt.400): [1995] LPELR- SC.217/1991.

In my considered view, the allegation in the letter of Indefinite Suspension was not followed to terms. It was not pursed to logical conclusion as it was abandoned at the point when the claimant was dismissed from the defendant’s employment without any reason. In the case of Mr. Christian Ehisotie Ilegbodu v. Skye Bank Plc. Unreported with Suit No: NICN/PHC/110/2013 delivered on the June 3, 2015; this Court held thus:

It is trite that an employer is required to give reason for dismissing its employee before that dismissal can be proper even in private employment like the instant case, which was formerly known as master and servant. For instance, in Olanrewaju v. Afribank Plc. LPELR [2001] SC 109/1996: [2001] 13 NWLR (Pt. 731) 691 & [2001] 7 S.C. (Pt. III) 1; the appellant’s employment was dismissed by the respondent in a letter which stated no reason. The terms of employment gave power to the respondent to dismiss for gross misconduct which was proved at trial.  The Supreme Court per Katsina-Alu JSC (as he then was) held that where an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted in the contract of employment, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. In other words prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal. Also, in B.A. Imonikhe v. Unity Bank Plc. (supra); the Supreme Court, Per Onnoghen JSC held that an employee can be dismissed from service for fraud or dishonesty in accordance with the terms of his employment. The recurrent decimal in these decisions is that it is a condition precedent before an employer can dismiss its employee for a misconduct or gross misconduct that such misconduct or gross misconduct is highlighted as a ground for dismissal in the parties’ terms and conditions of employment.

This Court further reiterated in that judgment that:

labour law jurisprudence has greatly grown to a point that it is no longer good practice for an employer to just wake up one day and dismiss its employee for no reason at all even in private employments like the one at hand. It should be noted that dismissal is a punitive disciplinary measure in which the employee so affected loses his terminal benefits and entitlements no matter how long he had served his employer. In such circumstance, the practice globally now is that such employer should at least give valid reason for the dismissal. See the Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166. Even though the Convention is not ratified by Nigeria, this is the current International Labour Standard and International Best Practice that this Court is enjoined to observe in cases like this one. See the provisions of section 7 (6) of the NIC Act, 2006 and section 254C (1) (f) & (h) of the Constitution of the FRN, 1999 Third Alteration Act, 2010.

Therefore, with the absence of any reason given for the dismissal of the claimant by the defendant in Document C.7/D.10, it is not the duty of the court to speculate or embark on a voyage discovery to unravel the reason in the absent of same in the letter of dismissal. Consequently, I find and hold that the dismissal of the claimant by the defendant was contrary to the terms and conditions of his employment; and so, it is wrongful.

Notwithstanding the holding above that the dismissal of the claimant is wrongful, it evinces the fact that the defendant is no longer interested in engaging the services of the claimant and this Court has no power to force a willing employee on an unwilling employer. The wrongful dismissal is, in the circumstance, held to be termination; not for any offence as stated in paragraph 1203 of Document D.11 at page 335 of the record, because none of the 11 offences so listed in that paragraph was proved against the claimant before the Court in this case. This Court hereby holds that the defendant terminated the employment of the claimant with effect from April 30, 2010 when the claimant was wrongly dismissed because the bank no longer requires the services of the claimant and this termination is without loss of the claimant’s terminal benefits as allowed by the terms and conditions of his employment and also less his indebtedness to the defendant.

In paragraph 7 of Document C.1/D.1, the letter of Offer of Employment (which is a part of the terms and conditions of the parties’ contract of service) at pages 9 & 476 of the record; it is stated that the claimant’s appointment may be determined by two months’ notice in writing or payment of two months gross pay in lieu of notice on either side. Since the claimant’s employment was determined by the defendant due to no proven fault or offence against him, I find and hold that the claimant is entitled to payment of two months’ salary in lieu of notice in line with the content of his letter of his employment, Document C.1/D.1. See the cases of IFETA v. S.P.D.C Nig. Ltd [2006] LPELR-1436 (SC): [2006] 8 NWLR (Pt. 983) 585 and FMC, Ido Ekiti v. Kolawole [2012] All FWLR (Pt. 653) at 2015.

The claimant failed to prove that he is entitled to N20,000,000.00 general damages from the defendant for his wrongful dismissal and so this claim is dismissed.

ON THE COUNTER-CLAIM

The defendant is counter claiming the following against the claimant:

  1. The sum of N47, 604, 610.86 being the balance of the depositors fund plus accumulated interest illegally and fraudulently disbursed by the Claimant.
  2. Interest accrued on the said outstanding sum of N47, 604, 610.86 at the default rate of 44. 75% from 1st January, 2011 till judgment is delivered in the Counter Claim and thereafter at the same rate until the entire debt is fully liquidated

Counter-claim otherwise known as cross-action or counter-action is a separate and independent action by a defendant, who has some reliefs against the plaintiff. Being a cross-action, the counter-claim is in the same position as an action and it is guided by the same rules of pleadings. The burden of proof of counter-claim is, therefore, on the counter-claimant in the same manner as it is required of a claimant/plaintiff in any civil claim, which is on the preponderance of evidence; see Afolayan v. Ariyo [2015] All FWLR (Pt. 769) CA 1129 at 1090- 1091 paragraphs H-B.

In the letters/memos dated December 2, 2008 and April 3, 2009 respectively at pages 681 to 683, which were marked as ‘not listed’ but which the Court has decided to consider and rely on in this judgment; the claimant explained that the amount outstanding against him as unauthorized overdrafts was N19.6m out of which he had practically recovered everything including various post-dated cheques issued by a major customer involved in the overdraft and document of his landed property in Port Harcourt released to the defendant through the police to off-set the balance. Again, in the letter/memo of April 3, 2009 the claimant stated that as at March 2009, the money so involved against him including interest was about N26m for which the representative of the major customer involved gave authority to the defendant to sell his Port Harcourt property; in addition that the customer leased his landed property in Abuja to the defendant for five years to cover the debt/overdraft and its interest. See the two letters/memos in question dated December 2, 2008 and April 3, 2009 respectively at pages 681 to 683 of the record. There is no evidence on the outstanding overdraft being counter-claimed including the agreed interest thereon against the claimant as at the time the counter-claim was filed. It is trite that the counter-claimant cannot rely on the weakness of the defence of the defendant to counter claim to establish its counter-claims. As it is, the defendant/counter-claimant failed to discharge the burden of proving how it became entitled to the sum of N47,604,610.86 from the claimant under the terms and condition of employment. Therefore, I find and hold that the counter-claim lacks merit and it is accordingly dismissed.

On the whole, I declare, hold and order as follows:

  1. I declare that the Indefinite Suspension of the claimant by the defendant was in compliance with the terms and conditions of the contract of the employment. However, I further declare that the Indefinite Suspension of the claimant without pay was done contrary to the terms and conditions of the contract and so, it is wrongful.
  2. I hold that the claimant is entitled to his salary for the 28months period of the said suspension without pay.
  3. I declare that the dismissal of the claimant without reason is contrary to the terms and conditions of the employment because the said dismissal should be for a specified offence as listed in the terms of employment; hence, the dismissal is wrongful.
  4. I hold that the wrongful dismissal evinces the defendant’s intention not to require the services of the claimant again in its Establishment.
  5. I hold that the defendant terminated the employment of the claimant with effect from April 30, 2010 because the defendant Bank no longer required his services.
  6. I hold that the claimant is entitled to payment of his gross two months’ salary in lieu of notice and to his other terminal benefits as allowed by the terms and conditions of his employment but less his indebtedness to the defendant.
  7. I hold that the claimant failed to prove that he is entitled to the sum of N20,000,000.00 general damages from the defendant for his wrongful dismissal and so this claim is dismissed.
  8. I hold that the defendant failed to prove its entitlement to its counter-claims against the claimant; therefore, the two counter-claims are hereby dismissed.
  9. The defendant is to pay N50,000.00 cost to the claimant.
  10. I order that the 28months’ gross salaries and allowances of the claimant for the period of his suspension is to be calculated based on the claimant’s last earned salary from the defendant, together with the ordered cost are to be paid to the claimant within 60 days from today.

 

Judgment is entered accordingly.

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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