IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: MARCH 3, 2020 SUIT NO. NICN/ABJ/183/2018
BETWEEN
Emmanuel C. Ekwem – Claimant
AND
Unity Bank Plc – Defendant
REPRESENTATION
Opeyemi Adeyemi, for the claimant.
Paul O. Eshiemomoh, with Emmanuel C. Udegbunam, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant filed this action on 28th June 2018 vide the General Form of Complaint. By paragraph 28 of his statement of facts, the claimant is seeking the following reliefs against the defendant:
(a) A declaration that the conduct of the defendant, by freezing the claimant’s salary account with Account No; 0013142902, domiciled with the defendant, and his savings account domiciled with the Minna branch of the defendant, with Account No. 0006086181, is unwarranted, oppressive and unconstitutional.
(b) A declaration that the failure, neglect and refusal of the defendant to pay the claimant his due salaries and allowances in the amount of N2,467,750.00 (Two Million, Four Hundred and Sixty-Seven Thousand, Seven Hundred and Fifty Naira only) annually, from January, 2014 amounts to a breach of the contract terms and conditions entered into with the claimant.
(c) An order of this Honourable Court mandating the defendant to unfreeze the claimant’s accounts to wit his salary account with Account No; 0013142902, domiciled with the defendant, and his savings account domiciled with the Minna branch of the defendant, with Account No. 0006086181 with immediate effect.
(d) An order of this Honourable Court mandating the defendant to pay to the claimant, the sum of N2,467,750.00 (Two Million, Four Hundred and Sixty-Seven Thousand, Seven Hundred and Fifty Naira only) per annum, from January, 2014 till the date of delivery of judgment in this suit, said stated amount, being the claimant’s annual salaries and allowances.
(e) Interest in the amount stated in (d) above at the rate of 21% from the 8th day of February, 2015 till the full liquidation of the judgment sum.
(f) General and exemplary damages in the sum of N50,000,000.00 (Fifty Million Naira) only.
(g) Costs of this action assessed at N500,000.00 (Five Hundred Thousand Naira only).
2. In reaction, the defendant entered formal appearance and then filed its defence processes, to which the claimant filed a reply and a further witness statement on oath.
3. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C12(a). For the defendant, John Oluwole Olukanni, Acting Head Employee Services and Ethics of the defendant, testified as DW and tendered Exhibits D1 to D5.
4. At the close of trial, parties field and served their respective final written addresses. The defendant’s was filed on 26th July 2019, while the reply on points of law was filed on 14th November 2019. The claimant’s address was filed on 6th November 2019.
THE CASE BEFORE THE COURT
5. The case of the claimant is that he is an employee of the defendant pursuant to the contract of employment entered into with the defendant on 23rd March 2007 (Exhibit C1). That in the course of his employment with the defendant, he served with distinction and was rewarded with the confirmation of his employment and advancements by way of notch increments (Exhibits C3 and C4). That his travails at the behest of the defendant beginning on 23rd January 2014 when he was arrested at work; and the defendant’s role in that went above and beyond merely reporting an allegation to law enforcement agencies as the defendant deployed its vehicle to ferry the claimant to and from Port-Harcourt, Rivers State and Minna, Niger State, while the claimant was in handcuffs, after being initially arrested by the Security department of the defendant. That the defendant also went above and beyond to disobey positive orders of court ordering the release of the claimant’s vehicle detained by the defendant and the unfreezing of his bank accounts, all because the defendant wanted to convert the claimant’s properties and funds to “settle” an unproven financial liability, without an order of court giving it the leave to so act. In fact, that the defendant through its officers, threatened him with arrest and detention if he ever reported to work again. This threat was issued regardless of the fact that the claimant was not queried or served with a letter of dismissal, and in spite of the fact that the claimant was just resuming to work upon his release from detention that the defendant orchestrated, and after recovering from injuries sustained in a road accident on his way back from attending his criminal trial instituted at the defendant’s behest.
6. Conversely, that the same defendant utterly failed to proffer any credible evidence which could have remotely established the guilt of the claimant at his criminal trial, and which may have cloaked their act with some semblance of reasonableness. In fact, that the claimant was discharged in his criminal trials for want of diligent prosecution. That the defendant did not consider it important to abide by the conditions of service and contract of employment it entered into with the claimant, as contained in the Employee Handbook authored by it. An example is the fact that the claimant was not even queried on the misconduct he was alleged to have committed, contrary to paragraphs 12.3.2 at page 83 and 12(8)(a) at page 86 of the Employee Handbook, which makes service of a query on an employee prior to disciplinary proceedings mandatory. The claimant thus contended that the defendant’s acts are unreasonable and legally questionable. That instead of following the proper procedure of querying the claimant first, before possibly suspending him and then making a report to law enforcement agencies, the defendant chose to arrest the claimant first, then cause him to be detained and arraigned in Court, and thereafter served him a letter of suspension in his residence, the address of which the defendant knew all the while, all without issuing him a query which would have afforded the claimant the opportunity of making his defence, thereby violating the sine qua non condition of giving a fair hearing to the claimant. That the logic proffered by the defendant, from a review of the facts and evidence is that the claimant absconded, and as a result could not be queried. Ironically however, the defendant was able to “locate” him to serve him a letter of suspension, which pursuant to the defendant’s employee handbook and the contract of employment the defendant entered into with the claimant ought to come subsequent to the query and not before.
7. Additionally, that the claimant was not served the purported letter of summary dismissal dated May 11, 2015 (Exhibit D1); as such, the submission of the defendant that the claimant has been dismissed is of no moment and only a mischievous figment of the defendant’s imagination. That the accusations of the defendant against the claimant, which resulted in the claimant being charged to court on two different occasions, were ultimately struck out and the claimant discharged primarily as a result of the defendant’s inability to furnish evidence to establish the claimant’s guilt. Curiously, however, that the defendant now bases its defence in the instant civil suit instituted by the claimant on the unproven allegation of crime. That the facts before the Court undoubtedly shows that the defendant froze the account of the claimant, contrary to the evasive contention of the defendant, which is only an attempt to deny the obvious.
8. The case of the defendant is that the claimant was its employee until May 11, 2015 when the claimant was summarily dismissed, referring to Exhibit D1. That following the discovery of the fraudulent transfer by the claimant of the sum of N29,165,590.28 into a deceased customer’s account No. 301/61/8559/1/1/0 domiciled at the defendant’s branch office in Minna, Niger State, the defendant laid a complaint to the Nigeria Police to investigate the fraud in addition to its internal investigation, the basis upon which the claimant was arrested by the police. That after the claimant was released on bail he went into hiding and all effort to serve him query proved abortive. Subsequently, he was seen and served with the Bank’s letter of suspension (Exhibit D4) and also directed in accordance with the provision of the Bank’s Employees Hand Book to report to the Branch on a daily basis in order to unravel the fraudulent transaction but the claimant failed to report to the branch. That Internal Audit Group Report (Exhibit D3) found that the claimant was the mastermind of the fraudulent transfers and using his position as the fund transfer officer to carry out the fraudulent transfers. That at the conclusion of internal investigation, the investigation report (Exhibit D2) found that the claimant was negligent and recommended his dismissal; and vide a letter of summary dismissal dated 11th June 2015 (Exhibit D1) the claimant was accordingly dismissed.
THE SUBMISSIONS OF THE DEFENDANT
9. To the defendant, the following facts are not in dispute:
(a) That the claimant until his dismissal was a staff of the defendant.
(b) That the defendant is empowered to handover the claimant or any other staff involved in fraud to the Nigeria Police to be prosecuted.
(c) That the defendant (sic) was arrested and charged to Court by the Police upon the complaint of the defendant.
(d) That the claimant was not queried because he could not be reached as he absconded and went into hiding.
(e) That the defendant (sic) was suspended from duty after the preliminary investigation of the defendant’s Bank indicted him.
(f) That the claimant is entitled to a refund of his withheld salary where he has been cleared and found not guilty upon reinstatement by the Bank.
(g) That the defendant (sic) was not discharged and acquitted and not reinstated by the Bank to be entitled to a refund of his half salary during the period he was still on suspension.
10. The defendant then submitted a sole issue for determination i.e. whether having regards to the claims of the claimant, the viva voce and documentary evidence adduced by the parties, the claimant could be held to have proved his case on the preponderance of evidence to be entitled to the judgment of this Court. To the defendant, the position of the law is that the burden of proof lies squarely on the claimant who must prove on preponderance of evidence that he is entitled to the judgment of this Court, citing sections 131(1) and (2), 132 and 133 of the Evidence Act 2011, Eyo v. Onuoha [2011] 45 NSCQR 210 at 244 and Ibitokun v. Strabag [2010] 43 NSCQR 521 at 565. That though the burden is not static, the claimant must first discharge the burden placed on him before the defendant is bound to discharge the statutory burden on him to disprove, citing sections 133(2) and 136 of the Evidence Act 2011, Goodwill v. Witt & Busch Ltd [2011] 45 NSCQR 122 at 154, Agibi v. Ogbe [2006] 26 NSCQR (Pt. 2) 1257 at 1278 and Bamgbose v. Jiaza [1999] 15 NWLR (Pt. 735) 47 at 73 – 74. That the claimant’s claims are mainly declaratory in nature and the law is trite that he can only succeed on the strength of his case and not on the weakness of the defence, citing Agibi v. Ogbeh [2006] 26 NSCQR (Pt. 2) 1257 at 1277 and Jack v. White [2001] 5 NSCQR 610. That it is the duty of the claimant to produce and tender before this court his letter of employment with the defendant and all other documents containing the terms of his employment showing these entitlements and failure to do this is fatal to the case, citing UBN Plc v. Chinyere [2014] 40 NLLR 315 at 342, Shell Petroleum Dev. Company of Nig. Ltd v. E. N. Nwaka [2004] 1 NWLR 401 at 420 and Unical v. Essien [1996] 10 NWLR (Pt. 472) or [1996] LPELR-SC 188/1991 at 56 – 57.
11. To the defendant, the case of the claimant as contained in his pleadings is that he was a staff of the defendant and that he was suspended by the defendant for “FRAUDULENTLY STANDING INSTRUCTIONS AND TRANSFER OF FUNDS INTO A DECEASED ACCOUNT No. 301/6l8559/l/1/0: AHMADU HAMIDU SIRAJO TOTALING N29,165,590.38” while he was still standing trial in a criminal charge before the Court. And that he is entitled to be placed on half salary during the course of his suspension but could not access his account because it was frozen. That the main plank of the claimant’s case is that the defendant is in breach of its contract with him having failed to pay him his due salaries from January 2014 till date as he was not served with any letter of query or dismissal by the defendant and that the defendant oppressively and unconstitutionally froze his Salary and Savings Account Nos. 0013142902 and 0006086181 respectively thus making it impossible for him to access his funds. To the defendant, however, contrary to the allegation of the claimant that his accounts were blocked by the Human Capital Department of the defendant Bank, it is the Internal Control Department of the defendant bank that possesses the power to block a customer’s account as it does not fall within the purview of the Human Capital Department. That these facts pleaded in the defendant’s defence were not rebutted by the claimant in his reply pleadings. Therefore, the claimant, having not rebutted these facts in it reply pleadings, must be read to have admitted them as facts not expressly denied are deemed admitted, citing Adigun v. Adigun [1993] 7 NWLR (Pt. 304) 218 at 236.
12. In any event, that the onus of proving the specific allegation that the claimant’s Salary and Savings Account Nos. 0013142902 and 0006086181 were frozen by the defendant rests squarely on the claimant who must lead credible evidence to establish his claim, citing section 131(2) of the Evidence Act and Keystone Bank Plc v. Yiggon [2013] LPELR-22131 (CA). That apart from the mere averment by the claimant in paragraphs 19, 20 and 28(a) of the statement of facts, there is no scintilla of evidence to show that his Salary and Savings Account Nos. 0013142902 and 0006086181 were frozen by the defendant in the first place. That although the claimant in paragraph 20 of his statement of fact purportedly alleged that he lodged a request at the Oregon Ikeja Branch of the defendant Bank in a bid to have his account unfrozen, he nevertheless failed to tender any document in proof of that fact. That he did not produce any official communication from the Bank to the effect that his account was frozen and neither did he produce any instrument e.g. Bank cheque that was presented by him and dishonored by the Bank nor any written complaint made by him to the Bank that his account was frozen and/or a demand on the Bank to unfreeze the account. That it is the trite law that pleadings without evidence in proof goes to no issue and is of no value, citing Idesoh v. Odia [1997] LPELR-1421(SC) and Adebunmi v. Abdullahi [1997] LPELR-2201(SC) at 20. That the Court should accordingly discountenance the allegation of facts contained in paragraphs 19, 20, 21 and 23 of the claimant’s statement of facts purporting that the claimant’s Salary and Savings Account Nos. 0013142902 and 0006086181 respectively were frozen by the defendant having not been proved by any credible evidence before the Court. That the only credible way a customer can prove that its account with the Bank has been frozen is to produce before the Court its instructions to the Bank or an instrument issued by him which a Bank declined to give effect to without reason.
13. The defendant continued that although Exhibit C12 (the claimant’s solicitor’s letter dated 23rd March 2017) purportedly requested the unfreezing of the claimant’s Bank accounts, there are no account numbers stated in the said letter to show that the request was made in respect of the claimant’s purported Salary and Savings Account Nos. 0013142902 and 0006086181 respectively and neither did the claimant lead evidence to show that after his solicitor’s letter to the defendant first above mentioned he presented any cheque(s) for value or mandate instruction to withdraw money from the purported Salary and Savings accounts and was declined by the Bank. That this Court can only speculate on which account the claimant’s counsel letter referred to or whether the Bank in fact froze the claimant’s account in the absence of any cogent/credible evidence. That the law forbids a court to base its decisions on mere speculation, investigation or conjecture but on facts proved with credible evidence by a party before it, citing Archibong v. Itah [2004] 17 NSCQR 295 at 320. The defendant then urged the Court to hold that to equate the claimant’s purported Salary and Savings Account Nos. 0013142902 and 0006086181 to mean the claimant’s Bank Accounts referred to in Exhibit C12 would amount to speculation which this Court is forbidden to make, citing Ogba v. Access Bank Plc [2015] LPELR-24821(CA). Accordingly, that the claimant’s relief in paragraph 28(a) and (c) contained in the statement of facts is bound to fail since the facts in the pleadings upon which they rely upon for the Court to grant them as claimed have not been proved by the claimant and so cannot be sustained by this Court.
14. On the claimant’s claim that he was not queried and neither was he served a letter of dismissal by the defendant bank, the defendant submitted that Exhibit D5 (the Bank Employee’s Handbook) admittedly contains the terms of contract between the claimant and the defendant with respect to staff suspension and dismissal. That a perusal of paragraph 12.6 clearly shows that a staff of the bank who is on suspension shall report to the office as specifically instructed; and in paragraph 14.5 of the aforesaid Handbook (Exhibit D5) the defendant reserves the right to summarily dismiss any of its employee with notice to such an employee. That although the claimant in paragraph 16 of his statement of facts and paragraph 10 of his reply brief stated that he was not served with any query by the Bank nor was he dismissed by the claimant, the defendant bank in paragraph 15 of its defence stated that the claimant could not be found to be served with a query as he absconded from the bank and his house after he was given bail. That this fact is contained in page 6 of Exhibit D3 which is reproduced thus: “Mr Emmanuel Ekwe (sic) went into hiding after he was granted bail. He could not be queried to explain his role”. That even after the claimant was eventually seen and served a letter of suspension (Exhibit D4) wherein he was required to report to the defendant’s Branch office on daily basis for at least two (2) hours while the internal investigation was still ongoing, the claimant absconded and failed to report to the bank’s branch as instructed. That while under cross-examination the claimant admitted the fact that he was not reporting to the defendant’s bank branch as instructed in Exhibit D4 when he stated thus:
Counsel: It is correct that a staff on suspension should be reporting to the office.
Claimant: I had an accident, after the accident, I reported in Port-Harcourt office and was warned never to report else, I will be arrested.
15. That even though the claimant stated that he failed to report to the bank’s branch because he was advised by a staff of the bank not to report, he did not place any material before the Court to wit: (a) a medical report to show that he was sick and was receiving treatment, (b) any written communication between him and the bank that he reported to duty and was “warned” not report to work hence he will be arrested and, (c) neither did he mention the name of the officer of the bank that warned him not to report to work to prove his reasons for not reporting to the bank. The defendant then urged the Court to hold that the onus of proving the above specific fact that he reported to duty in the course of his suspension as directed in Exhibit D4 (the letter of suspension) lies on him, the absence of which evidence his claim must fail, citing Ibitokun v. Strabag [2010] 43 NSCQR 521 at 565. The defendant also urged the Court to hold that the claimant absconded and whatever may be his reason for doing so is immaterial in this case.
16. On the claim for salaries/allowances, the claimant had argued that during his suspension, he is entitled to half of his salary; and in the event the charge against him was struck out or dismissed, he is entitled to be paid the outstanding half of his salary for the period that he was suspended and that consequent upon his discharge by the Court that he is yet to access his half salary while on suspension. To the defendant, issues were joined on these facts and from the facts contained in paragraphs 18 and 19 of the statement of defence the following were not in dispute: that the claimant was entitled to half of his salary while on suspension; and he was consistently paid his half salary until he was eventually dismissed same having not been denied by the claimant in his reply pleadings. That the only dispute that arose from the state of parties’ pleadings on that issue are: that the claimant could not access half of his salaries because his Salary Account No. 00131429202 was frozen by the defendant; and that he is entitled to be paid the outstanding balance of half of his salaries in the event that any of the charges against him is being struck out.
17. Accordingly, on the allegation that the claimant’s account was frozen and could not have access to his half salary and for reasons of avoidance of repetition of argument, the defendant adopted and relied on its arguments and submissions canvassed earlier.
18. However, in respect of the second leg of the disputed facts, the defendant submitted that clause 12.6(a) of Exhibit D5 is clear contrary to the allegation of the claimant that he is entitled to the outstanding balance of half of his salaries in the event of any charges against him is struck out. Clause 12.6(a) of Exhibit D5 provides thus:
In the event that the employee is cleared/found not guilty upon re-instatement and actual resumption to regular duties his/her withheld salary and allowances will be refunded in full the withheld portion.
That from the clear wordings of clause 12.6(a), it is clear that the phrase cleared/found not guilty is not mere discharge but an acquittal of the charges by the Court. Therefore, for a staff of the defendant to be entitled to the outstanding balance of his withheld salary and allowances while on suspension, he has to be acquitted of the charges against him, re-instated by the Bank and must have actually resumed to regular duties. The claimant has not shown that he was found not guilty of the Charge against him by the Court. Exhibit C7 is clear and unambiguous, the matter was struck-out for want of diligent prosecution. That the law is trite that the content of a document cannot be varied and or contradicted by oral evidence, citing Huabaner v. AIEPMC Ltd [2007] 5 JNSC (Pt. 46) 592 at 615. Also, that a cursory look at Exhibit C10 will show that the claimant was merely discharged and not acquitted contrary to the claimant’s testimony under cross-examination that he was discharged and acquitted. The defendant then urged the Court to hold that the claimant having been merely discharged and not acquitted of the charges against him, he is not entitled to any withheld salary and allowances while he was on suspension, more so as he has not shown that he has actually resumed his regular duties upon his discharge.
19. Also, that the claimant in the relief contained in paragraphs 28(b) and (d) of the statement of facts is claiming the sum of N2,467,750.00k being the amount of money he was last paid by the defendant as his annual salary and allowances including quarterly allowances and pension from January 2014 till date. To the defendant, this claim is of the nature of special damages, which must be strictly pleaded and strictly proved to succeed, citing Arabambi v. Advance Beverages Ind. Ltd [2005] 24 NSCQR 520 at 556. That this leg of the claimant’s claim is in the nature of special damages; and for him to succeed, he must lead evidence to show that he is entitled to and or have earned such an amount yearly while he was in the employment of the defendant Bank, citing Eyo v. Onuoha [2011] 45 NSCQR 210 at 244.
20. In support of the relief, that the claimant in paragraphs 25 and 26 of the statement of facts pleaded as follows:
25. The claimant avers that his annual salary and allowances (including quarterly allowances, pension e.t.c.) as at January 2014, when he was last paid by the defendant, stood at N2,467,750.00 (two million, four hundred and sixty-seven thousand, seven hundred and fifty Naira only).
26. The claimant avers that he is entitled to the said sum of N2,467,750.00 (two million, four hundred and sixty-seven thousand, seven hundred and fifty naira only) annually, from January, 2014 till date.
To the defendant, the claimant contrary to the requirement of pleading special damages which is particularizing the item, did not deem it fit to so do; he has not shown this court how he arrived at the said sum or the component of the gross sum either in his pleadings or in his evidence. Therefore, that the pleadings of the claimant have failed to meet the legally required standard for pleading special damages, citing Crosslink Ltd v. Thompson [1993] 3 NWLR (Pt. 273) 74 at 83 – 84 and Xtudos Services Nigeria Ltd & anor v. Taisei (WA) Ltd & anor [2006] 15 NWLR (Pt. 1003) 551.
21. In any event, that the claimant did not lead any evidence before this Court to show that he was paid the sum of N2,467,750.00 by the defendant as his annual salary and allowances. That it is settled law that pleadings without evidence goes to no issue, citing Adebunmi v. Abdullahi (supra). Therefore, that the Court should hold that as the claimant failed to lead any evidence in prove of his claim that his annual salary and allowances is the sum of N2,467,750.00, his claims in paragraphs 28(b) and (d) are bound to fail and cannot be granted by this Court, citing Akpapuna v. Obi Nzeka II [1983] 7 SC 25 and Nwachukwu v. Owunwanne [2011] 14 NWLR (Pt. 1266) l at 36 – 37.
22. The defendant went on that assuming but without conceding that Exhibit C4 (2012 Annual Appraisal Exercise) was tendered by the claimant in prove of the pleaded facts in paragraphs 25 and 26 of the statement of facts that his annual salary was the sum of N2,467,750.00, Exhibit C4 cannot by any means avail in discharging the onus placed on him by law since Exhibit C4 only shows that the claimants basic salary as at 1st January 2013 is the sum of N714,049.60 and not N2,467,750.00 as claimed by the claimant, urging the Court to so hold; and citing Health Care Products (Nig) v. Bazza [2004] 3 NWLR (Pt. 861) 582.
23. On the claimant’s claim for 21% pre-judgment interest on the sum of N2,467,750.00 from 8th February 2015 till full liquidation of the final debt, the defendant submitted that the claimant having failed to prove that he is entitled to the sum of N2,467,750.00 annually from the defendant Bank, his claim for 2l% is bound to fail, urging the Court to so hold. Also, that the law is trite that pre-judgment interest can only arise either from the agreement of parties (Afribank v. Akwara [2006] 25 NSCQR 253 at 287) or from the nature of the transaction. That Exhibit D5, the Bank Handbook, which form the terms of contract between the parties, did not provide for interest at any rate on unpaid salaries. Secondly, staff salaries do not and cannot form part of commercial transaction to attract interest.
24. The claimant in paragraph 28(f) of the statement of facts is seeking an award of N50,000,000.00 as general and exemplary damages against the defendant. To the defendant, it is trite law that damages whether in the nature of general damages are only grantable where there is a wrong committed against the party claiming same. That in this case, the claimant has not shown any wrong committed against him by the action of the defendant, citing ACB Ltd v. Akpugo [2001] 5 NSCQR 549 at 567 – 568.
25. On the Bank laying a complaint against him to the Police leading to his arrest, and arrangement, the defendant submitted that the claimant had admitted in evidence under cross-examination that the Bank has a duty to report crime to the Police and that it was the prerogative of the Police to decide whether to prosecute the matter or not based on their investigation. That the claimant’s evidence under cross-examination was thus:
Claimant: Yes its true that in the Handbook, if a staff commits an offence he should be reported to the Police.
Claimant: It’s correct that the bank reported me to the Police, while the Police arrested and investigated me.
Furthermore, that clause 14.5 of the Exhibit D5 empowers the Bank to report any act of any staff which may likely constitute a crime to the Police and to in fact handover such staff to the Police which was the case here.
26. Additionally, that the claimant has not denied the defendant’s allegations that he was a fund transfer officer and that under his watch there were transfers from the account of the Accountant General Niger State Government and Secondary School Education Board Accounts to the Account of Hamidu Sirajo, a deceased customer of the Paiko Branch of the Bank where he was the Funds Transfer Officer. As such, the defendant submitted that his arrest, detention and eventual arraignment were done by the Police and not the defendant contrary to the claimant’s allegation in paragraphs 7 to 14 of the statement of facts. It is, therefore, the defendant’s submission, urging the Court to so hold, that the claimant has not produced any credible evidence before this Court against the defendant to entitle him to the judgment of this Court.
27. On the claimant’s claim for cost of N500,000.00, the defendant submitted that cost is not granted as a matter of cause, but at the discretion of the Court where meritorious, citing Mobil Prod. Unltd v. Monokpo (No. 2) [2001] FWLR (Pt. 78) 1210. That this leg of claim cannot be sustained by this Court, the claimant having failed to lead evidence of prove of its claim, the suit is bound to fail. On the whole, the defendant urged the Court to resolve the sole issue it raised against the claimant and dismiss the claimant’s claim in its entirety for being frivolous, vexatious, gold-digging and without merit.
THE SUBMISSIONS OF THE CLAIMANT
28. To the claimant, the facts not in dispute as between the claimant and the defendant are:
(a) The claimant was not queried either before or after the defendant arrested him, caused him to be detained, and actively engineered his travails and brutalization in Police and Prison custody.
(b) The defendant despite the fact in (a) above could not produce any evidence to convict the claimant on the two different occasions that he was charged to court.
(c) The defendant did not serve the purported letter of dismissal on the claimant, despite having the opportunity to do so.
(d) From the evidence, (including pieces of evidence tendered by the defendant), the defendant flagrantly violated the law by resorted to self help by converting the claimant’s property and funds to allegedly satisfy an alleged (but unproven and unsubstantiated) financial exposure of the claimant to the defendant.
(e) The defendant, despite positive orders of court mandating it to release the claimant’s properties and unfreeze his accounts, continued to be in breach of the orders of court, despite barefaced denials to the contrary.
29. The claimant then submitted a sole issue for the Court’s determination i.e. whether or not, based on the quality of evidence adduced and the state of the law, the claimant has discharged the burden of proof to enable this Honourable Court to grant all the reliefs sought in the statement of facts. To the claimant, the law is trite that the burden of proof is on he who asserts, citing section 131(1) and (2) of the Evidence Act. However, that the law is also clear that in civil cases such as the instant suit, the burden of proof oscillates (shifts) from one party to the other, unlike in criminal cases where the burden of proof is static. Thus, that in as much as the claimant has the burden of proving the facts he relies on to establish his case, the defendant herein also has the burden of establishing its defence to the claimant’s claim by credible and admissible evidence, citing Amadi & ors v. Mobil Producing (Nig.) Unltd [2016] LPELR-41599(CA).
30. To the claimant, Exhibit D1 is inoperative owing to its non-service on him. Firstly, as to the allegation that he ceased to be a staff of the defendant with effect from May 11, 2015 when he was summarily dismissed, the claimant submitted that per the unchallenged evidence of the claimant, at paragraphs 1 and 2 of his further witness deposition on oath deposed to on 23rd November 2018, which was supported by the testimony of the defendant’s witness under cross-examination, the claimant was not served the said purported letter of dismissal. That the fact that the claimant was not served a dismissal letter was confirmed by the defendant’s witness; but in an apparent attempt to remedy the fatal effect of the non-service, he testified to the Court under cross-examination thus: “Yes, Exhibit D1 was not served on the claimant. We wanted to serve him, but he was nowhere to be found”. However, that the same witness had earlier testified under cross-examination that: “Yes, the claimant was present in the criminal proceedings (instituted against him by the defendant)”. Thus, that by the defendant’s own admission the claimant was not in hiding as the defendant would have the Court believe. This is apart from the fact that the claimant had given unchallenged testimony that he was served the suspension letter in his home, and also that he was seen by staff of the defendant who came to witness his criminal trial at all times, and who had access to him, even while he was in police custody before he was charged to court. That the issue of failure to serve a notice of dismissal on an employee was dealt with in Selcon Tannery Ltd v. Abubakar & ors [2013] LPELR-214129(CA), and the Court of Appeal, on the issue of whether failure of a company to serve notice of dismissal specifically on a staff concerned will amount to breach of right to fair hearing where the company acts on the basis of the notice to dismiss such staff, held thus: “Failure to serve the Respondents, directly with the Exhibit C, but acting on the same against their interest, amounts to breaching the Respondents’ right of fair hearing entrenched in Section 36(1) of the l999 Constitution (as amended)”. The claimant accordingly contended that insofar as Exhibit D1 was not served on him, and the defendant could only proffer the flimsiest of reasons not supported by the evidence on record for their failure to serve him, the exhibit ought not to be accorded any evidential weight whatsoever, urging the Court to so hold.
31. The claimant went on that the defendant’s failure to issue a query to him invalidates any disciplinary measure(s) carried out by the defendant. That closely related to the contention as to failure to serve him with the dismissal letter, is the effect of the defendant’s failure to issue a query to the claimant before adjudging him guilty of sundry offences and purporting to suspend and ultimately dismiss him based on those allegations in respect of which he was not even given an opportunity to state his case. That the defendant, in an attempt to justify this egregious conduct, had averred in its statement of defence and in its final address, at paragraph 2.03(c) thereof, that the claimant, after his arrest and subsequent release on bail, went into hiding and thus could not be queried. However, that the facts of the case and the position of the law on the importance of the service of a query knocks the foundation off from the defendant’s contention. Firstly, it is not denied that the defendant, through its Chief Security Officer, initially arrested the claimant before handing him over to the Police who detained the claimant in locations known to the defendant at all times, where he was visited on a regular basis by staff of the defendant. That the claimant could have been served a query during all these times, but he was not.
32. Furthermore, that it is also unchallenged evidence that the defendant served the claimant with a suspension letter dated 24th February 2014. This was a month after the claimant’s arrest by the officers of the defendant, and during this time, by the claimant’s unchallenged evidence, his travails at the hands of the defendant were already well underway. Yet, the same defendant who claimed the claimant could not be served with a query because he absconded after being granted bail was able to serve the claimant with a suspension letter during the time he supposedly absconded. That the question is: does the defendant’s story factually add up? The claimant answered in the negative. That the law is clear on the procedure to be followed when disciplining an employee, citing Miaphen v. Unijos Consultancy Ltd [2013] LPETR-21904(CA), which is to ask such officer to explain vide query certain things before any decision is taken. It is the query that precedes the setting in motion of the procedure for disciplinary action, citing Iderima v. Rivers State Civil Service Commission [2005] 16 NWLR (Pt. 951) 378 and Eigbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 at 628. The claimant then contended that in as much as the defendant submitted that the ordeal it subjected the claimant to is in a purported exercise of its disciplinary action over the claimant, its failure to first and foremost query the claimant, in the face of overwhelming evidence that it had the opportunity to do so, and against the backdrop of the mandatory provisions of the defendant’s employee handbook at page 86, para 12(8)(a) thereof, makes the discipline of the claimant unconstitutional and legally unjustifiable, urging the Court to hold likewise.
33. The claimant proceeded to submit that the defendant is responsible for his inability to report to work during his suspension. The defendant had contended that the claimant failed to report to the Port Harcourt branch office of the defendant during his suspension; to which the claimant submitted that it is in evidence that he was served with the suspension letter while he was recovering from injuries sustained in an accident, referring to paragraph l7 of the claimant’s statement on oath. That it is also in evidence that the claimant had been under arrest and in custody at various times, apart from being present under compulsion of law, for his criminal trial instituted at the defendant’s behest in Minna, Niger State, while the defendant’s branch that the claimant was expected to report to, is in Port Harcourt, Rivers State. Furthermore, that it is also in evidence that when the claimant did report at the Port Harcourt branch of the defendant, he was warned never to report and threatened with arrest if he did. That it is thus clear from the above that the defendant deliberately created circumstances averse to the claimant’s ability to report in accordance with the terms of his suspension and, therefore, cannot seek to profit from it, relying on Chief S. O. Agbareh & anor v. Dr Anthony Mimra & ors [2008] LPELR-235(SC) and Mekaowulu v. Akwa Local Govt Council [2018] LPELR-43807(CA). That given all this, it was illogical to expect that the claimant would report to work in Port Harcourt when he was under detention, had an accident and was standing trial in court in Minna, Niger State.
34. The defendant had also argued that the claimant did not furnish a medical report to show that he was sick and receiving treatment. In response, the claimant urged the Court to ignore this contention, which is totally misconceived. Firstly, that in making this submission the defendant ignored the fact that the oral testimony of the claimant, as contained in his deposition on oath, is a valid piece of evidence which a court is entitled to receive and act upon, citing Otoki v. Alakija [2012] LPELR-7994(CA). That the defendant had the opportunity to challenge the claimant’s testimony at the stage of pleadings or by cross-examining the claimant as to his averment that he was recuperating from a motor vehicle accident, but the defendant failed and neglected to do so. In fact, that the denial by the defendant of the facts as pleaded by the claimant in paragraph 17 of the statement of facts to the effect that he was recovering from injuries sustained in an accident was just a mere statement that the claimant is put to the strictest proof of the facts he averred to. That authorities are replete that this does not amount to a sufficient denial, citing Daniyan v. Iyagin [2002] FWLR (Pt. 120) 1805; [2002] 7 NWLR (Pt. 760) 345, Ihekweme & anor v. Obua [2013] LPELR-22520(CA) and UBA Plc v. Chimaeze [2007] All FWLR (Pt. 364) 303 at 318.
35. In any event, that the argument by the defendant that the claimant stayed away from work is irrelevant and diversionary, as the evidence before the court reveals that the claimant was not purportedly dismissed for absenteeism, but rather for an allegation of fraud and dishonest conduct. Furthermore, no query was issued to the claimant over the allegation of absenteeism in accordance with the terms and conditions of employment of the claimant and indeed over any other offence whatsoever. So, on what basis is the defendant imputing a “red herring” allegation of absenteeism on the claimant, when it did not form the basis of the defendant’s punitive action against him. That the defendant cannot in all good conscience demand evidence of proper conduct from the claimant, whilst it was carrying on a vendetta on its own part as he who seeks equity must do equity, urging the Court to so hold.
36. To the claimant, Exhibits D2 and D3 are inadmissible, or have no evidential weight whatsoever, even if adjudged admissible, as they are alien to the proceedings. The defendant had alluded to, and relied on Exhibits D2 and D3, admitted provisionally by the Court, without prejudice to the claimant’s right to address the Court as to their admissibility and/or evidential value. That while the present suit is a civil suit, Exhibits D2 and D3 are documents emanating from the defendant seeking to establish the claimant’s criminal liability on some alleged offences. Additionally, that the defendant’s witness under cross-examination admitted that Exhibits D2 and D3 alleged acts of a criminal nature against the claimant and that the defendant made criminal complaints against the claimant in those exhibits, which were charged to court. That the fact that the claimant’s input by way of a response to a query was not obtained, before these documents were made by the defendant is also not in doubt as the claimant was not queried at any point in time. That also beyond argument is the fact that these exhibits were not presented in the criminal trial of the claimant where perhaps their probative value could have been better evaluated.
37. The claimant went on that the non-tendering of Exhibits D2 and D3 in the criminal trial of the claimant is confirmed by Exhibit C10 as the pronouncement of the trial Magistrate in the said exhibit, while discharging the claimant, shows that no witness was called and no documentary evidence was tendered in the criminal proceedings, regardless of the defence witness’ attempt to be mendacious by insinuating that the said exhibits were so tendered. That from the state of the claimant’s pleadings in this suit upon which issues were joined between the parties, Exhibits D2 and.D3, which suggest an allegation of crime against the claimant and which were made by the defendant who is clearly an interested party when legal proceedings were pending or anticipated, are clearly inadmissible in this proceedings. And that this is especially so when the claimant was deprived of the opportunity to respond to the allegations contained in those exhibits before the exhibits concluded on the claimant’s alleged guilt even when they were not tendered in the criminal trial of the claimant. Therefore, that insofar as the purpose of the defendant tendering Exhibits D2 and D3 is to suggest that the claimant is guilty of fraud, the said exhibits are inadmissible as the only evidence of guilt in a criminal offence legally receivable by virtue of the Evidence Act 2011 is as stipulated in sections 248, 249 and 250 thereof, citing Ibori v. Agbi [2004] All FWLR (Pt. 202) 1799 SC.
38. Another basis for the claimant’s objection to the admissibility of Exhibits D2 and D3 is that they were made by the defendant who is a person interested when proceedings are pending or anticipated. My Lord, this is beyond doubt and is clearly apparent upon a cursory perusal of the said exhibits. The exhibits are undoubtedly made and tendered by the defendant who is also seeking to rely on them as being accurate. Also, that the documents were made by the defendant when the litigation was already pending between the parties, referring to the last paragraph of page 2 of Exhibit D2 which clearly reads, in reference to the claimant that: “Security Department and Legal Services Department are handling the prosecution of the Culprit as well as the recovery of the Bank’s funds in the sum of N22,556,344.80 as the Culprit has taken the Bank to Court”. That also evident from a perusal of Exhibit D3 is the fact that it was made when the criminal trial of the claimant was contemplated or ongoing. As proof, referring to paragraph 6.3 at page 16 of Exhibit D3. That the fact that the defendant is a party interested in the outcome of this proceedings in which the documents made by it are being sought to be relied upon is also beyond question and thus hardly begs further elucidation, citing sections 83(3) of the Evidence Act to the Court, Ogbahon v. The Registered Trustees of Christ Chosen Church of God [2001] All FWIR (Pt. 80) 1496 (CA) and Kpeku & ors v. Sibekenekumu & ors [2013] LPELR-20703 (CA). The claimant then urged the Court to expunge Exhibits D2 and D3 as being inadmissible and bereft of any evidential value whatsoever.
39. The claimant continued that he has discharged the burden of proving his rights to the entitlements claimed. The defendant had pointed out that it is the claimant’s duty to tender his letter of employment and other necessary documents showing his entitlements claimed against the defendant and failure to do so is fatal. In response, the claimant submitted that these documents are all before the Court as exhibits with ample evidence supporting them. That flowing from the defendant’s logic, the claimant’s case ought to succeed since the necessary documents are already before the Court. For the avoidance of doubt, that the claimant’s letter of employment is before the Court as Exhibit C1, while the Employee Handbook is in evidence as Exhibit D5. That other exhibits tendered by the claimant, which are heavily relied upon are also duly marked as exhibits, having been admitted by the Court without objection. That the law is beyond trite that a court has the power to take cognizance of any document in its case file in deciding a claim, regardless of which of the parties tendered it, citing Weekly Insight and Communication Network Ltd & anor v. Peter & ors [2019] LPELR-46847(CA).
40. Regarding the defendant’s contention that the claimant has not sufficiently proven his claim for annual salaries and allowances in the amount of N2,467,750.00k, the claimant submitted that he has lucidly stated what his annual salary, including allowances is. That it is thus left for the defendant who suggests otherwise, to lead credible evidence to support its assertion. What is more, that in contracts of employments generally, the claimant’s remuneration as an employee is as determined by the defendant who is his employer. And by Exhibits C1 and C4, the defendant computes his salaries and allowances on an annual basis. Thus, if the defendant disputes the amount stated by the claimant to be his annual salary and allowances, the defendant undoubtedly has the facts and credible evidence at its disposal to controvert the claimant’s averments. That a failure by the defendant to do this means that whatever evidence the defendant has at its disposal will support the case of the claimant, rather than weaken it. That this raises a presumption of withholding evidence against the defendant, citing section 167(d) of the Evidence Act and Ekweozor & ors v. The Registered Trustees of Saviours Apostolic Church of Nigeria [2014] LPELR-23572 (CA). Furthermore, that even by the defendant’s own Exhibit D5 at page 36 – 37, paragraph 3.2(d) thereof, it is confirmed that some allowances are paid annually, while some are paid bi-annually, monthly or quarterly, urging the Court to grant his prayers in this regard.
41. Next, the claimant submitted that his purported dismissal on an allegation of crime when same is not proved before a court of competent jurisdiction is a nullity. That it is clear, from the pleadings, the evidence led and the documents tendered by the defendant that the defendant purportedly dismissed the claimant for allegedly being involved in fraud. That there is no doubt that an allegation of fraud against the claimant connotes criminality, referring to section 419 of the Criminal Code. That this criminal connotation of the defendant’s allegation against the claimant is confirmed by the testimony of the defendant’s witness and indeed by the defendant’s actions (even though unjustified) by “arresting” the claimant and engineering his prosecution. However, that the law is trite in labour relations that before an employee can be dismissed on an allegation of crime, the allegation must be proved before the dismissal can stand, citing Union Bank of Nigeria Plc v. Haruna Ayuba Musa unreported Appeal No. CA/J/165/2006, the judgment of which was delivered on Friday, 25th May 2012, which relied on Savannah Bank of Nigeria Plc v. Fakokun [2002] 1 NWLR (Pt. 749) 544 at 559. That as shown by the evidence, he was not found guilty and convicted. Rather, he was discharged for want of diligent prosecution with a further order that he cannot be prosecuted for the offence again without the consent of the Court, referring to Exhibit C10. That the conduct of the defendant, in levying sundry allegations against him and yet utterly failing to prove same, but purporting to dismiss him on the basis of those allegations is akin to dismissal on the basis of a false allegation which was adjudged to be an unfair labour practice by this same court in Suit No: NICN/LA/639/2012; Leonard Oyinbo v. Guinness Nigeria Plc wherein Hon. Justice Nelson Ogbuanya held that the employee in that case is entitled to compensation for damage to his reputation where the employer had dismissed him based on allegations that were unsubstantiated and unproven.
42. The claimant proceeded to submit that he has proved that the defendant froze his bank accounts. To the claimant, the conduct of the defendant by freezing his accounts (the particulars of which were supplied) is unwarranted, oppressive and unconstitutional. That in justifying the declaration and the order sought, he offered credible oral testimony, particularly at paragraphs 19 to 24 of the claimant’s deposition on oath. He also offered credible documentary evidence in the form of Exhibits C12 and C12(a), which were letters written by his solicitors to the defendant demanding among others, the unfreezing of his accounts, which the defendant acknowledged. hat evidence of the defendant’s control over the claimant’s account, and the exercise of that control thereof by the defendant to freeze the claimant’s bank account is even embedded in the documentary evidence tendered by the defendant. For instance at page 34 of Exhibit D5, at paragraph 2.25 thereof, it is clear that employees of the defendant, such as the claimant, operate their salary account at the behest of, and under the control of the defendant. That this fact is even more glaring by virtue of the paragraph in page 42 of the same Exhibit D5 which reads: “…Where advances are not accounted for within the deadline, the amount advanced shall be recovered from the employee’s Salary Account”. That this is apart from the fact that Exhibits D2 and D3 (notwithstanding the fact that their admissibility and evidential weight to be attached thereto is hotly contested by the claimant) contain admissions by the defendant that it will use the claimant’s properties which, the claimant contended, include money in the claimant’s bank accounts to defray the financial exposure the claimant allegedly caused the defendant.
43. To the claimant, in the face of this overwhelming evidence, the defendant’s rebuttal in its pleadings was as usual an evasive averment putting the claimant to the strictest proof, which denial does not amount to an operative denial sufficient to put the facts in issue. That the only semblance of an operative denial offered by the defendant in its pleadings was that it was its Internal Control Department and not its Human Capital Department that posses the power to block a customer’s account. However, that both the Internal Control Department and Human Capital Department are units under the control of the defendant, just like two peas in the same pod. Thus, if the defendant’s defence to the claimant’s averment that his account was frozen is that it is one of its departments, rather than the other that freezes accounts, then the claimant’s averment has been admitted by the defendant’s apparent evasiveness, as the defendant did not unequivocally deny freezing the claimant’s bank accounts.
44. Furthermore, that the defendant’s submission to the effect that the claimant’s alleged failure to rebut the defendant’s “facts” amounts to an admission is utterly misconceived as the position of the law envisages an implied joinder of pleadings in situations where there are no averments in response to averments contained in a statement of defence, rather than an admission of averments contained in a statement of defence, citing Unity Bank Plc v. Mr Edward Bouari [2008] LPELR-3411(SC).
45. In an event, that the defendant made a number of suppositions that are not supported by the established facts or evidence before the Court. For instance, that the defendant assumed that the claimant operates a current account in which case there would have been a cheque, where there is no shred of evidence to remotely suggest the assumption. Interestingly, however, that the defendant chose to close its eyes to Exhibits 12 and 12(a), which were letters written to the defendant before the commencement of the suit, stating that the defendant froze the claimants account and urging the defendant to unfreeze same. That there no response by the defendant to these letters denying that it froze the claimant’s accounts, neither was any evidence proffered by the defendant to show that the accounts were operated by the claimant.
46. The claimant went on to submit that he is entitled to be paid his full salaries and allowances upon termination of the criminal proceedings against him. That regarding the declaration and positive order sought by him for the payment of his salaries withheld by the defendant from January 2014 till date, he gave cogent testimony at paragraphs at paragraphs 25 and 26 of his witness deposition on oath as to the sum his annual salaries and allowances (including quarterly allowances) amounted to. That earlier on at paragraphs 18 to 21 of his statement on oath, he had deposed to the fact that even the half salary which the defendant ought to pay to him could not be accessed by him, hence his claim as stated in the complaint. That the summary of the defendant’s contention in opposition to the claimant’s reliefs in this regard is that the claimant was not acquitted and thus not entitled to his salaries. In response to this argument the claimant contended that he was cleared of the allegations levied against him by the defendant because the defendant failed, neglected and refused to bring forth evidence required to secure the claimant’s conviction. After all, that the defendant has not provided a scintilla of evidence to controvert the assertion of the claimant that he was not found guilty of the offences charged. Also, that the reason why the claimant was discharged (with a further order by the trial Magistrate that he not be charged in respect of the same offence without the consent of the court) was because the defendant was not diligent enough to supply the evidence to prosecute him. So, how can the defendant, who spurned the claimant’s request for reinstatement per Exhibits 12 and 12(a) now allege that the claimant did not resume duties?
47. The claimant proceeded to submit that his claim for pre-judgment interest is validly made. That regarding his claim for 21% pre judgment interest, pre-judgment interest can be claimed where there is a breach of fiduciary relationship as in this case between the claimant and the defendant, citing AG Ferrero & Co. Ltd v. Henkel Chemicals Nig. Ltd [2011] LPELR-12(SC). That a reciprocal fiduciary relationship exists between the claimant and the defendant to act in good faith towards each other is beyond argument. Also, that by the evidence before the Court, it is beyond doubt that the defendant has, by its actions towards the claimant, for instance, purporting to suspend and dismiss him contrary to paragraph 12.8.a at page 84 of Exhibit D5, among other infractions, breached that fiduciary duty to the claimant. The claimant then urged the Court to hold he is entitled to the claim for pre-judgement interest and discountenance the contentions of the defendant to the contrary.
48. The claimant continued that he is entitled to the award of general and exemplary damages as well as costs of the action. The defendant had disputed the claimant’s claim for general and exemplary damages because allegedly no wrong was committed by the defendant against the claimant. To the claimant, the wrongs committed by the defendant are replete. That from the evidence, the claimant has been able to show that the defendant:
(a) Arrested him and handed him over to the Police without giving him an inkling of the offence he was accused of.
(b) Used its resources to facilitate his detention in police and prison custody, and sundry violation of his fundamental rights.
(c) Laid complaints TWICE against the claimant, leading to him being charged to court, without furnishing evidence to establish his guilt.
(d) Actively resisted the enforcement of an order of court made in favour of the claimant and up till date still detained his properties and froze his bank accounts.
(e) Purported to suspend and dismiss the claimant in flagrant violation of the contract of employment entered into between the parties, due process and the 1999 Constitution, which guarantees fair hearing.
The claimant then submitted that all of this and more constitute reasons why the claimant ought to be awarded general and exemplary damages, as well as the costs of this action, urging the Court to grant the orders as prayed by the claimant. Citing the Latin maxim, ubi jus, ibi remedium, the claimant concluded by urging the Court to find for him and grant the reliefs he seeks.
THE DEFENDANT’S REPLY ON POINTS OF LAW
49. The defendant reacted on points of law. That the claimant’s counsel had submitted and urged the Court to hold that Exhibit D1 (the letter of summary dismissal) having not been served on the claimant amounted to his breach of right to fair hearing, and therefore, is null and void and of no effect, citing Selcon Tannery Ltd v. Abubakar (supra) in urging that the dismissal be nullified. In response, the defendant submitted that counsel misconceived and misapplied the principle in Selcon to this case. First, that a letter of dismissal or dismissal of an employee is the last and final stage of every disciplinary proceeding; and once issued, there is no further proceeding. Therefore, the issue of fair hearing does not arise after dismissal.
50. Secondly, that Selcon, relied on by the claimant’s counsel, has no judicial or factual bearing with this case. That the ratio decidendi in that case as reasoned by the Justices of the Court of Appeal were that:
(a) The notice of redundancy which was published in the appellant’s notice board before the subsequent termination of the respondent’s appointment was not served on them personally to enable them make representations to the appellant.
(b) The published list did not contain the names of the respondent.
(c) That, a letter posted on the notice board of a company cannot serve as notice served on individual employees where their rights are in issue.
51. Furthermore, that the facts in Selcon are distinguishable from the facts of the instant case. That in Selcon, the employees were all still in their duty posts when the redundancy notice was pasted on the notice board without it being served on them. However, in the instant case, the evidence before the Court, even on the admission of the claimant, is that he could not be found after he was served the suspension letter (Exhibit D4) which letter expressly required him to be reporting on duty every day pending the conclusion of the investigations. That according to the claimant as CW, he was not reporting because he was told by one of the staff that they have asked him not to come to the bank again and that he will be arrested. He did not inform the Court of who told him. He admitted that he did not confirm the information. That the law is trite that for a court to rely on a case as a precedent, the facts of the case must be pari materia in material facts with the case under consideration, citing Eastern Breweries Plc v. Inuem [2000] 3 NWLR (Pt. 650) 662 at 673. That a lower court is at liberty to distinguish the facts of a case cited from the facts of the case in consideration before it, and decline to rely on the case as a judicial authority for deciding the case before it, citing Bothnia Maritime Incorp v. OT & TA Ltd [2001] 8 NWLR (Pt. 716) 534 at 544; and urging the Court to distinguish this authority from the facts and principles in this case and decline to rely on it as a judicial authority.
52. The claimant’s counsel had submitted that the failure of the defendant to issue and serve a query on him before his dismissal from the defendant’s service defeats the dismissal as it amounts to breach of his right to fair hearing, relying on Miaphen v. Unijos Consultancy (supra) and Eigbe v. NUT (supra). To the defendant, while conceding that in line with section 36 of the 1999 Constitution a citizen whose right is to be determined ought to be given opportunity to know the case against him and be afforded the opportunity to defend himself, however a query must not be served having regard to the fact that the claimant absconded from duty and could not be found upon being issued a query. That it is not correct that a query must in all cases be issued before an employee can be dismissed or have his appointment terminated. The procedure for termination of appointment or summary dismissal will depend on the terms of the employment between the parties. That where the terms of contract as in this case provide for summary dismissal, the defendant need not issue query, and non-issuance of query cannot, therefore, amount to a breach of the right to fair hearing, citing Morrison v. Diamond Bank [2018] LPELR-46005(CA). The defendant referred to paragraph 14.5 of Exhibit D5 (the Bank’s Handbook), which provides:
Where an employee is accused of a criminal act the employee will be handed over to the Police to be prosecuted e.g. (misappropriation of money, money laundering etc.) after the Bank would have conducted its own internal investigation and endeavoured to recoup its lost assets, if any. The employee’s entitlement will be used to defray part or all the money misappropriated where it is lost. Summary dismissal is without notice to the Employee and the reason will be clearly stated in the letter.
And then submitted that this provision is clear and does not provide for issuance of query for offence involving fraud.
53. The defendant continued that in case the Court is not in agreement with it on the above, then the right to fair hearing means opportunity being given to a person to defend himself or be heard and not that he must be heard, citing Ohajunwa v. Obelle [2007] LPELR-8265(CA) and S & D Construction Co. Ltd v. Ayoku [2011] LPELR–2965(SC).
54. On the constitutional requirement that the claimant be informed of the nature of his offence, the defendant answered that Exhibit D4 (the suspension letter) clearly states the nature and details of the offence or infraction for which he was to be investigated. Secondly, that he was to report to duty every day during the duration of the investigation, a directive which on his admission he did not comply with. That the question is: if he could not be found to be served, what was the defendant Bank supposed to do? That it is trite that the law including the provisions of the Constitution does not command the doing of the impossible: “Lex non cogit ad impasibilio”, urging the Court to, therefore, disregard counsel’s submission and hold that the claimant had opportunity to defend himself, but elected not to utilise it.
55. The claimant had submitted that it was the defendant who made it impossible for him to report to work. To the defendant, this submission is not borne out of the evidence on record. That it is on record that the claimant under cross-examination stated that he could not be found because he had an accident and was warned by a staff in Port Harcourt branch not to come back to the Bank or he would be arrested. That the law is trite that counsel’s address cannot substitute for evidence, citing Neka BBB Manufacturing Co. Ltd v. ACB Ltd [2004] 17 NSCQR 240 at 254 and Agbadu v. Ami [2004] 5 NWLR (Pt. 867) 571.
56. The claimant had submitted in sum that Exhibits D2 and D3, which were admitted without any objection by claimant, are inadmissible and urging the Court not to place any weight on them. To the defendant, where a document is admitted without objection, the only reason the court may decline to rely on them is if they are legally inadmissible, citing Ajasa v. Elegbede [2016] LPELR-41933(CA). Having raised no objection and in fact consented to the admissibility of the document, the claimant cannot be allowed at address stage to raise such objection except on the ground that they are legally inadmissible which the claimant has failed to demonstrate.
57. In support of his submission on the inadmissibility of Exhibits D2 and D3, the claimant relied on sections 248, 249 and 250 of the Evidence Act 2011 to the effect that the documents where tendered to prove that the claimant is guilty of fraud, and also relied on Ibori v. Agbi (supra). To the defendant, the claimant misconceived the issues and misapplied the above statutory and case laws to this case. That it is trite that the admissibility of a document depends on the purpose for which it is tendered. That a perusal of the pleadings of the defendant vis-a-vis the contents of the documents will clearly show that they were not pleaded and tendered to show the conviction of the claimant for fraud as envisaged by sections 248, 249 and 250 of the Evidence Act, and the decision in Ibori v. Agbi (supra), but to show that the claimant was involved in fraudulent activities in a customer’s accounts. The defendant then urged the Court not to apply the laws and principles to this case as the facts are parallel.
58. The claimant had argued in sum that this Court ought not to rely on Exhibits D2 and D3 on the ground that they were made during the pendency of litigation and placed reliance on section 83(3) of the Evidence Act and Ogbahon v. Reg. Trustees of Christ Chosen Church of God (supra) and other judicial decisions. To the defendant, the Court should note that the claimant did not mention the particular litigation referred to (whether this case or any other litigation). In reply, while the defendant conceded that a court ought not to admit a document made during the pendency of an action, the action/litigation referred to in section 83(3) of the Evidence Act is an action pending at the material time before the Court (in other words, this suit). That the starting point for a court to determine whether a document was made during the pendency of an action before it is the complaint, by confirming the date the suit was commenced/filed, and the date the documents were made. That a perusal of the claimant’s complaint will reveal that this action was filed on 28th June 2018, while Exhibits D2 and D3 were made on 9th April 2015 and 24th June 2014 respectively, meaning that they were made long before the commencement of this action. It is thus the defendant’s submission that the claimant misconceived the import of the provisions of section 83(3) of the Evidence Act and the judicial authorities thereon and misapplied them to this case, urging the Court not to place any judicial value on this submission.
59. The claimant had submitted that the burden of contradicting the claimant’s claim in respect of the special damages claimed by him is on the defendant. In reply, the defendant submitted that the claim of the claimant is principally declaratory. That the law is that the claimant must succeed on the strength of his claim and not the weakness of the defence, citing Agbi v. Ogbeh [2006] 25 NSCQR (Pt. 2) 1257 at 1277. Secondly, that the duty to plead and specially prove entitlement to special damages lies on the claimant and not on the defendant, citing Crossline Ltd v. Thompson [1993] 3 NWLR (Pt. 273) 74 at 83 – 84 and Arabambi v. Advance Beverages Ind. Ltd [2005] 24 NSCOR 520.
60. The claimant, relying on Union Bank v. Haruna Ayuba Musa (supra) and Oyibo v. Guinness Nig. Plc (supra), had submitted in sum that his dismissal is null and void because he was dismissed for the offence of fraud which offence was not proved before his dismissal. To the defendant, the claimant totally misconceived the reason for his dismissal from the services of the defendant. That the reasons are clearly stated in Exhibit D1 (the letter of May 11, 2015 captioned: Summary Dismissal). That a perusal of that exhibit will show that the defendant never gave the crime of fraud as a reason for the dismissal of the claimant from its employment; and that the reason for dismissal can only be deduced from the letter of dismissal and nowhere else. In conclusion, the defendant urged the Court to discountenance the arguments of the claimant and proceed to dismiss the claim in its entirety.
COURT’S DECISION
61. I have carefully considered the respective processes filed and the submissions of the parties. I shall first deal with the matter of the admissibility of Exhibits D2 and D3 raised by the claimant. Both exhibits are investigation reports into the alleged fraudulent withdrawal of an amount from the deceased’s account by the claimant. The basis of the challenge is that the exhibits are alien to this suit simply because the instant suit is a civil suit and the exhibits seek to establish criminal culpability of the claimant. I do not see how Exhibits D2 or D3 is inadmissible in a civil suit simply because it seeks to establish criminal culpability when what is in issue in the civil suit is an inquiry into misconduct good enough to justify a dismissal. In Mr Sunday Nwokeukwu v. Stanbic IBTC Bank Plc unreported Suit No. NICN/ABJ/171/2018, the judgment of which was delivered on 19th November 2019, I made the point in paragraph 82 that:
It has never been the law that the pendency of a criminal case precludes the pendency of a civil case on the same facts. And the fact that a criminal trial ends in favour of the defendant does not preclude a civil action on same facts going against him.
I know of no law that says that because a document was not tendered in a criminal trial, it cannot be tendered in a civil trial; or that a document must first be tendered in a criminal trial before it can be tendered in a civil trial, even if the document seeks to establish criminal culpability. What should matter is the content of the document and its evidential value in terms of the question in issue in the civil suit.
62. The argument of the claimant that the defendant as an interested party made Exhibits D2 and D3 when proceedings are pending or anticipated is one that is difficult to make sense of. As the defendant asked: which proceedings is the claimant talking of? The instant suit was filed on 28th June 2018. Exhibit D2 is dated 9th April 2015, while Exhibit D3 is dated 24th June 2014. So, what is the claimant saying? If he meant the criminal trial, that trial was not before this Court. And who says the rule about documents made by interested parties to a suit is absolute? In UTC (Nig.) Plc v. Lawal [2013] LPELR-23002(SC), the Supreme Court per Ariwoola, JSC held as follows:
…the interest that is envisaged by the law which disqualifies is a personal interest not merely interest in an official capacity…It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost.
I do not accordingly see any merit in the argument of the claimant that Exhibits D2 and D3 were made by the defendant as an interested party when proceedings are pending or anticipated. I so hold. In all, Exhibits D2 and D3 accordingly remain admissible and would be treated as such; the only issue remaining being their probative value, which can only be determined when the merit of the case is considered. I so hold.
63. The claimant’s case centers on two main claims: that his accounts were frozen by the defendant; and he is owed salaries. It is only when these two claims succeed that the question of interest, damages and cost arise. To the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
This presupposes that all the arguments especially by the claimant to the effect that his dismissal is a nullity all go to no issue unless tied to any of the reliefs claimed.
64. The defendant on its part in putting the case before the Court, first asserted that the following facts are not in dispute: that the claimant was entitled to half of his salary while on suspension; and he was consistently paid his half salary until he was eventually dismissed same having not been denied by the claimant in his reply pleadings. The defendant them proceeded to state that the only dispute that arose from the state of parties’ pleadings on that issue are: that the claimant could not access half of his salaries because his Salary Account No. 00131429202 was frozen by the defendant; and that he is entitled to be paid the outstanding balance of half of his salaries in the event that any of the charges against him is being struck out.
65. Taking the claim as to the defendant freezing the accounts of the claimant, the defendant had submitted that the claimant did not show any evidence of the fact that his bank accounts with the defendant were frozen. And that even when in Exhibit C12 dated 23rd March 2017 the claimant’s solicitor demanded for the “unfreezing of his bank accounts”, the bank accounts numbers were not indicated. I think that the defendant’s counsel is taking advocacy too far. Why would the claimant’s solicitor ask for the unfreezing of the claimant’s account if not that he actually could not access it? Exhibit C12 was stamped acknowledged by the defendant, meaning that it was received. Did the defendant reply to it? The answer is NO because Exhibit C12(a) dated 23rd June 2017 (also acknowledged received by the defendant) is a reminder to the defendant that Exhibit C12 was not replied to or acted upon. When Exhibit C12 was sent to the defendant, did the defendant reply to it telling the claimant that they have no knowledge of the claimant having any account with them? The answer is NO.
66. The claimant was an employee of the defendant; and it is common knowledge that banks are known to insist that their employees open accounts with them. Clause 2.25 at page 34 of Exhibit D5 (the Employee Handbook) stipulates that “It is the Bank’s policy to open a salary account for all its employees into which all salary, allowances and benefits will be paid into as they fall due”. And when clause 3.8.23 especially at page 42 of Exhibit D5 dealing with advances for business trip stated that where advances are not accounted for within 72 hours of completion of the trip, the amount advanced will be recovered from the employee’s salary account, is the defendant going to ask the said employee of the number of his salary account as the defendant’s counsel seem to have argued? Or will the defendant simply recover the said sum because it already knows the salary account number? I am sure the defendant’s counsel knows that it is the latter option. With all of this, therefore, how can the defendant be feigning ignorance of the claimant’s accounts with them when it opened them in the first place. The defendant could easily have told the claimant that he had no account with them if actually there was none? Moreover, at paragraph 10 of Exhibit D3, an internal memo of the defendant, the defendant talked of moneys being paid into the claimant’s accounts domiciled in First Bank Plc and Unity Bank Plc. I do not agree with the defendant’s argument here by any stretch of imagination. I find that the claimant had accounts with the defendant and the said accounts were frozen by the defendant. The arguments by the defendant that the claimant did not prove that his accounts were frozen by the defendant and that the Court would only be speculating if it so holds are accordingly rejected.
67. In any event, part of the defendant’s defence to the claimant’s averment that his account was frozen is that it is one of its departments, rather than the other that freezes accounts. I agree with the claimant that what this implies is that the claimant’s averment has been admitted by the defendant’s apparent evasiveness, as the defendant did not unequivocally deny freezing the claimant’s bank accounts. The law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See Akande v. Adisa & anor [2012] LPELR-7807(SC), El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359. So by these rules of pleadings, the defendant’s evasive denial must be read to be an admission that it froze the claimant’s accounts. I so hold.
68. I am accordingly satisfied that reliefs (a) and (c) as claimed are grantable; and are hereby granted.
69. This leaves out the claim for salaries in terms of reliefs (b) and (d). It was in arguing for these reliefs that the claimant raised the issue of the validity of his dismissal although he made no specific relief in that regard. The utility of all his submissions as to him not being issued a query, and not being served the dismissal letter is questionable since no prayer to declare the dismissal invalid was sought for by the claimant. But for whatever may be their worth, I shall consider the arguments before addressing the claims of the claimant as per reliefs (b) and (d).
70. The claimant had submitted that the defendant did not issue any query to him. The response of the defendant is that the claimant went into hiding after he was granted bail and so he could not be queried to explain his role. In support, the defendant referred to page 6 of Exhibit D3. Exhibit D2 dated April 9, 2014 is an earlier internal memo from Human Capital Management Department (HCMD) through the ED, Secretariat & Services to Managing Director/CEO, which in the attached staff responses under the claimant’s column stated that the claimant “could not be queried as he went into hiding after he was granted bail”; and then concluded that going into hiding after being granted bail “is a confirmation that he actually committed the fraud”. The claimant was then recommended for summary dismissal. Exhibit D3 dated June 24, 2014 is an internal memo from Internal Audit Group to the MD/CEO of the defendant detailing the investigation report of the fraud said to have been perpetrated by the claimant and others. From Exhibit D3, it will be seen that the fraudulent acts occurred within the period 30th March 2009 and 22nd January 2014. At page 5 of Exhibit D3, it was stated that the claimant was arrested by the Bank Security Officer and handed over to the Police for further investigation; and that the claimant was thoroughly searched by the Police. The statement that the claimant was handed over to the Police “for further investigation” suggests that an investigation had been done. If this is true, and the claimant was arrested by the Bank’s Security Officer, at what point was the defendant expected to have given the claimant a query? The defendant want this Court to believe that it waited for the claimant to be taken by the Police, granted bail, released, go into hiding before the query is issued? The defendant investigated the issue of fraud before reporting it to the Police who then took the claimant in. Why did the defendant not issue the query at the point of the initial investigation before the Police was called in? After all, as soon as the claimant was suspected to have committed the fraud, was it not at that point that he should have been queried?
71. One other point. Exhibit D4 is another internal memo dated February 24, 2014, which suspended the claimant for fraudulent standing instructions and transfer of funds into a deceased account. Under cross-examination, the claimant testified thus: “Yes, I was suspended by the bank and was written to by the bank informing me of the reasons for the suspension”. How did the defendant get Exhibit D4 to the claimant but not a query? Should the query not come before the suspension or simultaneously with the suspension? As it is, I am of the firm view that the defence of the defendant that the claimant went into hiding and so could not be issued with a query is an afterthought on the part of the defendant.
72. Still on the issue of the defendant not issuing a query to the claimant, the defendant in its reply on points of law cited and quoted extensively Morrison v. Diamond Bank [2018] LPELR-46005(CA) as authority for the proposition that the non-issuance of a query before appearance at a disciplinary panel is not a breach of fair hearing. But the defendant seems to have downplayed or forgotten a key holding of His Lordship Shuaibu, JCA in the case, which is:
Neither the appellant’s letter of appointment nor the respondent’s Human Capital Management Manual provides for query as a condition precedent for termination of appointment. Fair hearing is not a cut-and-dry principle which parties can in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only facts of the case can influence and determine the application or applicability of the principle. Thus the principle of fair hearing is helpless or completely dead outsides the facts of the case.
The case was decided on its facts and based on the interpretation of the applicable Human Capital Management Manual, which made no provision for a query as a condition precedent for termination of appointment. It was for this fact that His Lordship held that only the facts of the case can influence and determine the applicability of the fair hearing.
73. I am accordingly satisfied that the claimant was not issued with any query by the defendant and so find as such.
74. The next issue is whether the claimant was served with the dismissal letter. The claimant had submitted that the defendant did not serve him the dismissal letter (Exhibit D1). The defendant in answer said it did not though it went to serve him but the claimant was nowhere to be found. DW acknowledged that: “Yes, the claimant was present in the criminal proceedings”. DW could not be making this categorical statement unless a representative of the defendant during the criminal proceedings actually saw the claimant in court during the criminal trial. This being so, how can the defendant now argue that it went to serve the claimant the dismissal letter but the claimant was nowhere to be found? How did the defendant serve the claimant the suspension letter, but could not serve the dismissal letter? I am not convinced by the testimony of the defendant that it went to serve the claimant the dismissal letter but the claimant was nowhere to be found. The testimony sounds more of an afterthought than the truth of what happened. Accordingly, I accept the evidence of the claimant that he was not served any dismissal letter; and so find that the claimant not served any dismissal letter by the defendant. This being so, the claimant remained an employee of the defendant since by Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1, a suspended employee remains an employee of the employer. See also Mr Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013, the judgment of which was delivered on July 1, 2015. And by Selcon Tannery Ltd v. Abubakar & ors [2013] LPELR-21412(CA), cited by the claimant, failure of the defendant to serve Exhibit D1, the dismissal letter, on the claimant but acting on it against the interest of the claimant amounts to breaching the claimant’s right to fair hearing. The defendant’s argument in its reply on points of law trying to distinguish Selcon from the instant case are unconvincing and so is hereby discountenanced.
75. The defendant’s response that because a letter of dismissal or dismissal of an employee is the last and final stage of every disciplinary proceeding, and once issued, there is no further proceeding; as such, the issue of fair hearing does not arise after dismissal is one that I cannot fathom. Once an employer does not serve the dismissal letter on the employee, how can the dismissal be said to have even taken effect? Common sense dictates that until the employee is served the notice of dismissal, the dismissal will not be effective. When New Nig, Bank Ltd v. Obevudiri [1986] 3 NWLR (Pt. 29) 387 CA held that the effective date of the dismissal of an employee must be reckoned as the date when the letter of dismissal was written, this was in the context of determining the entitlement of the employee; and it did not envisage that an employer would write a dismissal letter and keep it in its drawer claiming that the dismissal had taken effect. And so the same case held that the employee is, therefore, entitled to all his accrued rights up to that date; and his summary dismissal cannot, therefore, be made retrospective. The Supreme Court would in Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC emphasize that the employer cannot dismiss or terminate his employee’s employment with retrospective effect with a view to denying him his vested right to his salary. The very fact that dismissal cannot be retrospective presupposes that some kind of notice must be given if the dismissal is to be effective. I do not accordingly agree with the said defendant’s argument that the issue of fair hearing does not arise after dismissal. This argument beats my imagination. On the question whether posting of a notice of termination on the notice board meets the sting of the law, Jimoh Adisa & 4 ors v. Stallion Plastic Industries Ltd unreported Suit No. NICN/LA/239/2012, the judgment of which was delivered on 20th March 2019 held at paragraph 37 that posting of the notice of termination on the notice board did not meet the requirement of notice to the employee as enjoined by section 11(1) of the Labour Act. All of this presupposes actual service of dismissal or termination letters on the affected employee. The defendant did not do this in this instant case. I so find.
76. It is the submission of the claimant that before an employee can be dismissed on an allegation of crime, the allegation must be proved before the dismissal can stand. In making this submission, the claimant cited two unreported authorities without sending the certified true copies of the cases to the Court contrary to Order 45 Rule 3(1) of the NICN Rules 2017. In Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor unreported Suit No. SC.622/2015, the judgment of which was delivered on 18th January 2019, Her Ladyship Augie, JSC had this to say:
It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon – see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)…
In this case, the Appellants did not provide this Court with copies of its Judgment in Governor, Ekiti State v. Chief George Ojo & ors and Governor of Ekiti State & anor v. Chief Femi Akinyemi & ors. They merely quoted what the Court of Appeal said in those cases and there is nothing to indicate what principle this Court affirmed.
I shall accordingly discountenance the two unreported cases of Union Bank of Nigeria Plc v. Haruna Ayuba Musa unreported Appeal No. CA/J/165/2006, the judgment of which was delivered on Friday, 25th May 2012 and Suit No: NICN/LA/639/2012; Leonard Oyinbo v. Guinness Nigeria Plc cited by the claimant in paragraphs 4.54 and 4.56 of his written address.
77. Even this aside, the statement of principle by the claimant that before an employee can be dismissed on an allegation of crime, the allegation must be proved before the dismissal can stand represents the old learning. The Supreme Court in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In fact, AG, Kwara State v. Ojulari [2007] 1 NWLR (Pt. 1016) 551 CA held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case. And by Jubril v. Mil. Admin., Kwara State [2007] 3 NWLR (Pt. 1021) 357 CA, where there has been admission on commission of misconduct or crime by an employee, the need for proof before a regular criminal court no longer arises. I do not accordingly agree with the argument of the claimant here that before he can be dismissed by the defendant on an allegation of crime, the allegation must be proved in the criminal case before the dismissal can stand. That argument is accordingly discountenanced.
78. I now turn to the question whether the claimant is entitled to the balance of his half salary given that the charges against him were struck out. This question rests on the construction of clause 12.6(a) of Exhibit D5, which provides thus:
In the event that the employee is cleared/found not guilty upon re-instatement and actual resumption to regular duties his/her withheld salary and allowances will be refunded in full the withheld portion.
The defendant argued that being cleared or found not guilty means, not mere discharge, but acquittal of the charges by the court. And that for a staff of the defendant to be entitled to the outstanding balance of his withheld salary and allowances while on suspension, he has to be acquitted of the charges against him, re-instated by the Bank and must have actually resumed to regular duties. That the claimant did not show that he was found not guilty of the charge against him by the court. That Exhibit C7 is clear and unambiguous in that the matter was struck-out for want of diligent prosecution.
79. Now, clause 12.6(a) did not use the word acquittal. The words used are: “cleared/found not guilty”. By Exhibit C10, the claimant was discharged though not acquitted. So, the question is: when a defendant is merely discharged but not acquitted, or even if a criminal matter is struck out, has he not been cleared? Legal policy has always treated a discharge or striking out of a criminal matter, even if for want of diligent prosecution as the defendant put it, as a favourable termination of the criminal proceedings. In any event, in interpreting contracts of employment, ambiguity must be resolved in favor of that which gives the employee an advantage. See Mr M. A. Chiroma v. Forte Oil Plc unreported Suit No. NICN/ABJ/165/2018, the judgment of which was delivered on 2nd May 2019 and James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016. So the argument of the defendant that the content of a document cannot be varied and or contradicted by oral evidence is inapplicable here.
80. The argument of the defendant that the claimant must have been reinstated by the Bank and must have actually resumed his regular duties, merely begs the question: whose duty is it to reinstate the claimant so that he can actually resume his regular duties? The answer is: the defendant’s. The defendant did not reinstate the claimant, and so the claimant cannot resume his regular duties. And so it is not open to the defendant to now use that as a defence. The defendant cannot benefit from a situation it foisted on the claimant. I so find and hold.
81. By reliefs (b) and (d), the claimant is claiming for “N2,467,750.00…per annum, from January, 2014 till the date of delivery of judgment in this suit…being the claimant’s annual salaries and allowances”. The pleadings for this claim are to be found in paragraphs 25 and 26 of the statement of facts. For ease of reference, these paragraphs provide as follows:
25. The claimant avers that his annual salary and allowances (including quarterly allowances, pension e.t.c.) as at January 2014, when he was last paid by the defendant, stood at N2,467,750.00 (two million, four hundred and sixty-seven thousand, seven hundred and fifty Naira only).
26. The claimant avers that he is entitled to the said sum of N2,467,750.00 (two million, four hundred and sixty-seven thousand, seven hundred and fifty naira only) annually, from January, 2014 till date.
82. The supporting depositions in words similar to the pleadings are paragraphs 25 and 26 of the witness statement on oath of the claimant. Again for ease of reference, they provide thus:
25. I aver that my annual salary and allowances (including quarterly allowances, pension e.t.c.) as at January 2014, when I was last paid by the defendant, stood at N2,467,750.00 (two million, four hundred and sixty-seven thousand, seven hundred and fifty Naira only).
26. I aver that he am (sic) entitled to the said sum of N2,467,750.00 (two million, four hundred and sixty-seven thousand, seven hundred and fifty naira only) annually, from January, 2014 till date.
The error in using the phrase “he am” in paragraph 26 of the sworn deposition certainly suggests that the claimant did not write his own deposition; otherwise, he would not make the mistake of referring to the third person “he” when the more appropriate first person “I” should have been used.
83. The law, as the defendant submitted, and I agree with the defendant, is that a claim for special damages must be pleaded and particularized so that the defendant will know what he is meeting. By 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), the claims for gratuity, pension, housing fund, salary are all special damages and must be strictly proved. See also NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC. The claimant’s claim in the instant case is for “N2,467,750.00…per annum, from January, 2014 till the date of delivery of judgment in this suit…being the claimant’s annual salaries and allowances”. In other words, the sum claimed consists of the claimant’s “annual salaries” and “allowances”. Of the sum claimed, what makes up “annual salaries” and what makes up “allowances”, has not been shown to the Court by the claimant. Of the allowances, what are the components of the allowances since allowances differ? Again the Court is not told. 7UP Bottling Company Plc v. Augustus specifically admonished in these words:
The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.
84. It is not enough for the claimant in the instant case to simply state that N2,467,750.00 is his “annual salaries and allowances” and think that that is sufficient proof. The reliance of the claimant on paragraphs 25 and 26 of his sworn deposition as evidence is not sufficient. In Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court stressed that:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.
85. The claimant sought to rely on Exhibits C1 and C4 in proof of the claim for the said N2,467,750.00. Exhibit C1 is the offer of appointment dated 23rd March 2007. The offer of appointment is to the Executive Trainee Grade. Under the section on compensation, it indicates that the annual basic salary of the claimant is N225,000.00. The claimant did not specifically plead what his basic salary is. So this cannot be useful evidence as evidence without pleadings go to no issue. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. Exhibit C1 has an attached sheet of paper titled, “Compensation Package for Executive Trainees”. It shows Cash Compensation, Deferred Compensation, Performance Pay, Other Benefits and Other Employee Cost i.e. Pension. The gross compensation is put at N1,892,500.00; guarantee pay is put at N1,419,375.00; and performance indexed pay is put at N473,125.00. Howsoever one adds up these sums, they do not add up to the N2,467,750.00 that the claimant is claiming. And it is the duty of the claimant to show to the Court how he came by the quantum of the sum he is claiming. This is aside form the fact that the claimant did not even particularize in order to show what constitutes the N2,467,750.00 that he claims. Exhibit C4 dated June 5, 2013 merely shows the claimant has been granted 2 NOTCH increment where his basic salary will now be N714,049.60. I said earlier that the claimant did not plead his basic salary; as such, this piece of evidence goes to no issue.
86. The burden of proof remains with the claimant; and it is a strict one. The argument of the claimant that by Exhibits C1 and C4, the defendant computes his salaries and allowances on an annual basis; as such, if the defendant disputes the amount stated by the claimant to be his annual salary and allowances, the defendant undoubtedly has the facts and credible evidence at its disposal to controvert the claimant’s averments is an attempt by the claimant to shift what is squarely his duty, that of proving to the satisfaction of the Court his claim for N2,467,750.00 as special damages. And so, as it is, I agree with the defendant that the claimant cannot be held to have successfully proved his claim for N2,467,750.00 per annum being his annual salaries and allowances in terms of reliefs (b) and (d). Reliefs (b) and (d) cannot, therefore, be granted. They fail and so are hereby dismissed.
87. Relief (e) is a claim for interest at the rate of 21% from 8th February 2015 till full liquidation on the sum of N2,467,750.00 per annum as may have been determined under relief (d). Relief (d) has already failed; as such, relief (e) must equally fail. It accordingly fails and so is hereby dismissed.
88. Relief (f) is a claim for general and exemplary damages in the sum of N50 Million Naira. Citing the Latin maxim, ubi jus, ibi remedium, the claimant’s case that he is entitled to this relief as well as relief (g) i.e. for cost is that the defendant committed the following wrongs on him:
(a) Arrested him and handed him over to the Police without giving him an inkling of the offence he was accused of.
(b) Used its resources to facilitate his detention in police and prison custody, and sundry violation of his fundamental rights.
(c) Laid complaints TWICE against the claimant, leading to him being charged to court, without furnishing evidence to establish his guilt.
(d) Actively resisted the enforcement of an order of court made in favour of the claimant and up till date still detained his properties and froze his bank accounts.
(e) Purported to suspend and dismiss the claimant in flagrant violation of the contract of employment entered into between the parties, due process and the 1999 Constitution, which guarantees fair hearing.
89. The question that arises is, save for item (d), how all of this relates to reliefs (a) to (d) as claimed by the claimant since they are the main claims of the claimant since reliefs (f) and (g) are consequential reliefs. Awoniyi v. Reg. Trustees of Amore [2000] 10 NWLR (Pt. 676) 522 at 539 held a consequential order to be one founded on the claim of the successful party, and that it is difficult to conceive how a positive consequential order can arise from a claim which has been dismissed. What the claimant succeeded in proving is the fact that his accounts with the defendant were frozen by the defendant without any just cause. Relief (f) simply asks for general and exemplary damages in the sum of N50 Million but did not state for what. The assumption, therefore, must be that it is for freezing of the claimant’s accounts and the refusal to pay his due salaries and allowances. What this means is that the claim for general and exemplary damages as claimed as per relief (f) cannot be supported by all, save for item (d) above, the itemized wrongs the claimant said were committed against him by the defendant since relief (f) did not indicated what the special and exemplary damages are for.
90. Since the claimant succeeded only in terms of reliefs (a) and (c), the claim for damages must relate to only the wrong of freezing the claimant’s accounts. This being so, I assess the damages awardable at N1 Million only, which must be paid by the defendant to the claimant for freezing the accounts of the claimant. I so order.
91. In all, the claimant’s case succeeds in part in terms of reliefs (a) and (c) sought. Accordingly, I declare and order as follows:
(1) It is declared that the conduct of the defendant, by freezing the claimant’s salary account with Account No. 0013142902 domiciled with the defendant, and his savings account domiciled with the Minna branch of the defendant, with Account No. 0006086181 is unwarranted, oppressive and unconstitutional.
(2) It is ordered that the defendant shall immediately unfreeze the claimant’s accounts to wit: his salary account with Account No. 0013142902 domiciled with the defendant, and his savings account domiciled with the Minna branch of the defendant with Account No. 0006086181.
(3) For freezing the accounts of the claimant, the defendant is to pay to the claimant within 30 days of this judgment the sum of One Million Naira (N1,000,000.00) only as damages. Failing this, the said sum shall attract 10% simple interest per annum until the said sum is fully paid.
92. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
