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National Industrial Court

FASIDA SUBOMI -VS- THE UNITED BANK FOR AFRICA & 2 ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

 

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

 

DATED:  16TH SEPTEMBER, 2019

SUIT NO: NICN/BEN/07/2018

 

BETWEEN

FASIDA SUBOMI

CLAIMANT/APPLICANT                               

AND

  1. 1.THE UNITED BANK FOR AFRICA
  2. GROUP MANAGING DIRECTOR CHIEF EXECUTIVE OFFICER

   THE UNITED BANK FOR AFRICA (UBA)                

  1. THE HEAD, HUMAN CAPITAL UNITED BANK FOR AFRICA (UBA)

DEFENDANTS

 

 

REPRESENTATION:

 

  1. O. OMOTE FOR THE CLAIMANT, WITH HIM IS E. A. AGIANMWONYE.

 

  1. I. IHENYEN FOR THE DEFENDANTS.

 

JUDGMENT

 

The Claimant by a Complaint filed before this Court on the 16th March, 2018, initiated this suit. The originating process was later amended on the 15th of day of October, 2018 and the claims against the Defendants are as follows:

  1. A Declaration that the arrest, detention and malicious prosecution of the Claimant for 34 months, 13 days was wrongful, unlawful, unconstitutional and of no effect.
  2. A Declaration the Claimant is entitled to all his salaries and other allowances which he ought to have been paid while the matter was in Court for a period of 34 months and 13 days.
  3. An Order mandating the 1st, 2nd& 3rd Defendants to pay the Claimant the salaries and other allowances he ought to have been paid from October 2011-13th August 2014 as specific damages (i.e. 34 months, 13 days).
  4. Sum of ₦10 million as general damages.
  5. Sum of ₦5 million as cost of litigation.

PARTICULARS OF SPECIFIC DAMAGES                                ₦            K

  1. Monthly salary (taxable and non taxable at 584,390.66 per month x34 = 19,869,282.44
  2. Daily wage (584, 390.66 ÷ 30) x13 days=    253,235.94

                                                                                                     20,122,518.38

iii. Leave allowance of 186, 681.44 per annual x 3 =                        560,044.32

  1. Thirteenth month at 129,639.89 x 3=                                          388,919.67

       Sub-total                                                                                21, 071, 482.32

  1. General damages       10, 000, 000.00
  2. Cost of litigation   5, 000, 000.00

TOTAL                                                                                       36, 071, 482. 37

 

The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witness and documents to be relied upon, while the defendants filed their memorandum of appearance, Joint Statement of Defence on the 2nd of April, 2018 along with other accompanying processes.

The claimant’s case is that he was employed as a banker and rose to the rank of Deputy Manager and held the position of Branch Manager, Sokponba Branch of the 1st defendant. He averred that sometimes in 2011, a case of alleged fraud was reported against him and two others, which was investigated by the disciplinary committee of the 1stdefendant, the committee in the course of investigation later recommended that he and two others be handed over to law enforcement agents, while he was placed on a recovery suspension. The claimant was later arraigned at the magistrate court but was eventually discharged and acquitted of the charge against him. After his discharge, he went back to the 1st defendant and was given a copy of a scanned letter of dismissal, he is claiming his salaries for the period of his suspension and general damages and other reliefs, as he averred that he suffered a lot of hardship during the course of his trial whereof he claims against the defendants as aforestated.

The defendants in their extant amendment to the statement of defence, admitted paragraphs 1, 2, 3, 4, 10, 11, 12, of the claimant’s amended statement of facts and denied paragraphs 5, 6, 7, 8, 9, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, & 26 of the statement of facts and put the claimant to the strictest proof.

The defendants’ case is that the claimant was a staff of the defendant until he was allegedly found culpable of fraud/financial impropriety by its Regional Disciplinary Committee and was dismissed from his employment for gross misconduct following the recommendation of the Committee. According to the defendants, the claimant alongside some other staff of the 1st defendant were involved in several cases of wrongful diversion of Customers’ Fixed Term Deposits for the liquidation or reduction of overdue overdrafts of other customers, without the consent and knowledge of the owners of the deposits. They were later handed over to law enforcements agents for prosecution. The defendants denied the claims in this suit and pleaded that the suit be dismissed with substantial cost.

Trial commenced in this suit on the 28th February, 2019 with the claimant testifying for himself as CW1. He adopted his witness statement on oath, tendered several exhibits which were admitted and marked as Exhibits FD1 – FD11 and was cross examined.  The claimant thereafter closed his case.

On the 4th April, 2019, the defendants opened their defence by calling their sole witness, Abel Ohaegbulam a Relationship Officer in the 1st defendant as DW1, he adopted his witness statement on oath and was cross examined. The defence closed their case, and thereafter parties adopted their final written addresses on the 24th of June, 2019.

E.I Ihenyen Esq. of counsel for the defendants in his final written address filed on the 25th of April, 2019 formulated four issues for determination to wit:

 

  1. Was the 1st Defendant right to dismiss the Claimant after its Disciplinary Committee found him guilty of gross misconduct?

 

  1. Has the Claimant proved his case as required by Law?

 

  1. Does every allegation of crime against an employee have to be proved in court before an employer can dismiss an employee?

 

 

  1. Has Claimant Successfully established a Case of Malicious Prosecution against the Defendants?

On issue one, counsel submitted that the claimant, who was an employee of the 1st Defendant, appeared before its disciplinary Committee on allegations of fraud and was found guilty and dismissed for gross misconduct citing Exhibit FD2. He argued that misconduct is what an employer says it is and cited NNB v. Oniovosa (1995) 9 NWLR Pt. 419 pg. 327 @ 334.

He added that the employer has common law right to dismiss his employee without notice on grounds of misconduct or wilful disobedience. This he stated can be done by the employer without adducing any reason whatsoever.

 

He referred the court to Exhibit FD2 i.e. the minutes of the meeting of the Disciplinary Committee of the 1stDefendant wherein the Claimant was recommended for recovery suspension and dismissal. Learned counsel stated that while the claimant under Cross Examination admitted that he appeared before the committee, and that his appearance was “in respect of alleged fraud by another person’’ he pointed out that this is at variance with his evidence in chief where he stated that he appeared before the committee on allegations of fraud.

Furthermore, under cross examination on whether or not he was found guilty of the said allegations of fraud by the Committee, Claimant claimed that ‘’he was not aware of the position of the bank until he got to the Magistrate Court’’.

The defence counsel posited that documentary Evidence is the best evidence and cited A. G. BENDEL STATE V UBA LTD (1986) 4 NWLR PT. 37, PG. 547 at 563, he also referred to Exhibit FD2, which he argues, speaks for itself and the claimant cannot orally contradict or alter the content of same.

 

The defence counsel further submitted that the claimant had notice of his dismissal from the 1st defendant from the evidence adduced in this case, he added that it is trite that parties to a suit may admit certain facts in their pleadings and these facts so admitted do not require further proof. In other words parties are bound by their pleadings. He cited Section 123 of the Evidence Act, 2011, and argued that under cross examination, it is evident that the claimant was aware of his dismissal by the bank as at the time he was charged to the Magistrate court and not when in August 2012 as claimed by him. The defence counsel therefore argued that when the evidence of a witness in court is different from the facts pleaded, or is contradictory to the facts pleaded, such evidence must be rejected.  He cited Luke v. Rivers State Housing & Property Development Authority & Ors. [2009] LPELR-8350 (CA), pp. 14-15 and others.

He consequently urged the court to resolve this issue in favour of the Defendants.

On issue two, counsel submitted that the instant case is a master and servant relationship and the 1st defendant has an unfettered right to terminate or dismiss its employee. However, in so doing, he must comply with the procedure stipulated in the contract. He cited Longe v.First of Nigeria Plc (2010) 6 NWLR Pt.1189, 1 @ 57, paras. E-G, S.C, he argued further that the first two reliefs of the Claimant against are for declarations and having established that the relationship between the 1stDefendant and the Claimant was that of master and servant which is not protected by statute, a declaration is impossible in law. He cited Odiase v. Auchi Polytechnic (1998) 4 NWLR Pt. 546, Pg. 477 @ 492, Paras. E-F, C.A.

He stated that it is in accord with judicial decisions and best business practice to ask an officer who is being investigated for certain allegations of impropriety to stay away from the place of work to permit unhindered investigation to be carried out and to allow peace to reign, and that in an action for wrongful termination of appointment or dismissal, a plaintiff who fails to plead and prove the facts of his appointment is not entitled to the declaration that his appointment subsists; neither can he be granted an order that he is entitled to his emoluments until the determination of the suit and thereafter till he is legitimately relieved of his appointment. He noted that the claimant’s case lacks any foundation as he failed to plead particulars of his employment with the 1st Defendant in his extant statement of facts and also woefully failed to plead and prove how they were breached. He added that even if he pleaded same, this will not help his case.

On Exhibit FD8 tendered by the claimant i.e. conditions of service of the 1st defendant, he stated that this was not so tied with the evidence as the claimant merely dumped Exhibit FD8 on the Court, and as It is not the business of this court to link Exhibit FD8to the Claimant’s case, mere production of Exhibit FD8 without leading credible evidence cannot suffice to establish liability against the Defendants. He further submitted that even if Exhibit FD8is duly considered, the Exhibit further strengthens the case of the Defendants in that the letter of recovery suspension of the Claimant (Exhibit FD9) is dated October 11th, 2011 but the letter of Appeal (Exhibit FD 11) came in on the 12th of August, 2012, 10 months after the claimant’s right of appeal had clearly elapsed.

On general damages, counsel stated that general damages cannot be awarded as a remedy for wrongful dismissal, he cited P.Z Ltd. v. Ogedenge (1972) 1 All NLR Pt. 1, (1972) 3 S.C.

On the claim for cost of litigation, counsel stated this is an item of special damages which must be strictly proved, arguing that no receipt was tendered before this court to show the actual amount paid as solicitor’s fees. More importantly, it is unethical and an affront to public policy for a litigant to pass the cost of his solicitor’s fees to his opponent. He urged the court to resolve this issue in favour of the Defendants.

 

On issue three, counsel stated that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him a fair hearing, that is to confront him with the allegation made against him and requiring him to defend himself. In other words, to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him and afforded the opportunity to defend the allegation. He cited Imonikhe v. Unity Bank Plc (2011) 12 NWLR Pt. 1262, pg.624, 648 Para. H, 649, Paras. B-C, S.C and others

The defence counsel argued that in the instant case, the claimant was confronted with the accusation and given an opportunity to explain, the claimant however failed to disprove the allegation to the satisfaction of the 1st defendant. This he submitted was never denied by the claimant in this case, he went on to cite Section 123 of the Evidence Act, 2011; and urged the court to resolve this issue in favour of the Defendants.

On issue four, counsel submitted that the ingredients of the offence of malicious prosecution are absent in this case and without which the claim against the defendants is unproven. He cited ADEBOWALE V. ROBINSON (2018) LPELR-44424(CA) (Pp. 50-53, paras. D-C) and urged the court to resolve this issue in favour of the Defendants and dismiss the entire suit.

  1. O. Omote Esq. of counsel of the claimant in his final written address filed on the 16thof May, 2019 formulated five issues for determination to wit:

  1. Whether or not the letter of suspension dated 11th October 2011 given to the claimant by the Defendants is valid.
  2. Whether or not the letter of dismissal dated 6th January 2012 not delivered to the claimant properly determined the employment of the claimant.
  3. Whether or not the acclaimed date of dismissal is binding on the claimant.
  4. Whether or not the Claimant is entitled to the reliefs claimed.
  5. Whether a court may grant to a party a relief which he is entitled to in the circumstances of the case even though not specifically claimed.

On issue one, counsel submitted that the claimant was served with an unsigned letter of credit recovery suspension dated 11th October 2011 Exhibit FD9, and since it is trite that a preparatory legal interest cannot be based on a worthless, unsigned and inadmissible document, adding further that where even admitted, the court is cautioned not to attach any probative value to such a document. He cited Adeyemi v. V.O. Achimu /NDIC/Assurance bank Ltd (2016) All FWLR (Pt 814) 144 @ 154 R 5. He urged the Court to disregard the content of Exhibit FD9 for this reason.

On issue two, counsel submitted that a master can terminate the employment of his servant at any time, provided the termination is accordance with the terms of their contract, citing Ogundipe v. Nigeria Telecommunications Ltd supra @ 617 R.6, he argued that instead of the 1st defendant to properly determine the claimant’s appointment, he was given a scanned copy of a letter of dismissal tendered as Exhibit FD10, several months after the 1st defendants committee had recommended his dismissal and after his discharge at the Magistrate court in violation of the 1st defendants’ condition of service Exhibit FD8.

He added that there was no proof of service of Exhibit D10 (letter of dismissal) on the claimant, as the dismissal can only take effect only when it is received by an employee and that the scanned copy i.e. Exhibit FD10 of the letter of dismissal that was given to him contravenes of the conditions of service between the 1st Defendant as it was over eight months after the committee had concluded its report.

On issue three, counsel adopted his argument on issue two above and urged the court to hold same. He added that failure of the Defendants to produce the acknowledged copy of the letter of dismissal amounts to withholding evidence, citing Section 149 (1) of the Evidence Act 2011.

On issue four, counsel urged the court to uphold the case of the claimant on the unconstitutionality of the malicious prosecution of the claimant by the Defendants, and that the claimant is entitled to all his pending monthly salaries and allowances which should be declared by this Court. He referred the court to Exhibit FD1and the details and particulars of his earnings as stated in his extant Statement of Facts, and urged the court to grant same.

On general damages, counsel submitted that general damages are awarded to assuage a loss which flow naturally from an act, and must be specifically pleaded and proved. He cited Andrew v MTN (Nig) Communication Ltd (2017) All FWLR (Pt 900) 518 @ 520 R.1, and @ 521 R.4. and argued that in the instant case, the dismissal of the claimant by the 1st defendant has rendered him unemployed and in the labour market from October 2011 till date.

On cost, counsel submitted that an award of cost is always at the discretion of court and stated the determining factors. He also cited Olokunlade v Samuel (2013) (Pt 669) 1150 @ 1156.

On issue five, counsel submitted that arguments on Exhibit FD9 and Exhibit FD10 reveals that payments of claimant’s salaries/allowances be extended beyond August 2014, to include when this suit was filed, he urged the court to grant this as a consequential relief based on the circumstances of the case and the claim before the court

In his reply on point of law, which was adopted at the hearing, the defence counsel replied the claimant’s counsel contention on the admissibility of Exhibit FD9, that this is a document pleaded, acted and relied upon by the claimant, asides the fact that it was also tendered by him. The Claimant cannot therefore approbate and reprobate, as the principle of Estoppel by conduct will apply, he added that a party cannot rely on and take advantage of the contents of a document and then turn round to question and impugn its validity or legality.

Counsel also argued that Exhibit FD8 was merely dumped on the Court by Counsel to the Claimant without tying it to the relevant aspects of his case, and counsel’s address cannot take the place of evidence before the court.

I have carefully gone through the processes filed in this suit and have identified the following issues that will best determine this suit to wit;

  1. Whether or not the suspension letter dated 11th of October, 2011 is valid
  2. Whether or not the dismissal letter of 6th January, 2012 is binding on the claimant.
  3. Whether or not the claimant is entitled to his reliefs claimed.

On issue one, the claimant made out a case that the claimant was served with an unsigned letter of credit recovery suspension Exhibit FD9 based on the recommendations of the 1st defendant Regional Disciplinary Committee i.e. Exhibit FD2 which was unsigned and therefore lacks any probative value.

The defendants on the other hand contended that Exhibit FD9 was tendered by the claimant, he pleaded, relied and complied with the directive in Exhibit FD9 and he is therefore estopped by conduct from denying the validity of the said letter.

It is not in doubt that any legally admissible document must be properly signed and dated, otherwise the authorship and authenticity is doubtful. See the case of Nwancho v. Elem [2004] All FWLR (Part 225) 107.This position of the law is also captured in Awolaja& Ors v. Seateade G.B.V [2002] LPELR-651 (SC)by the Supreme Court per Ayoola, J.S.C where he held thus;

“A signed document though valuable as putting it per adventure what terms the parties have agreed to is not essential to the existence of a contract of affreightment. Where the immediate parties to the agreement do not deny their agreement or the existence of the contract of affreightment and there is no doubt about their intention that they should be bound, barring statutory provision to the contrary, (and none has been cited by the defendants) the existence of the contract cannot be impugned on the ground that the document embodying the terms they have agreed to was unsigned, unless the parties have made such a condition of their being bound.”

Similarly, in the case of Abeje& Anor. V. Apeke [2013] LPELR-20675 (CA) the Court of Appeal per Daniel-Kalio, J.C.A held thus;

“…..it has to be said though that it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed…”

In the instant case, the claimant in paragraph 13 of his statement of facts stated as follows;

“that while the investigation was going on, the claimant was placed on recovering suspension followed by a dismissal and an arrest by the police following the complaints laid by the 1st Defendant, claimant shall rely on the letter of recovery suspension dated October 11th 2011.” (Underline mine for emphasis).

As rightly canvassed by learned counsel for the defendants, the claimant cannot deny the authenticity of Exhibit FD9 because he acted on the letter, pleaded and tendered it in the course of trial in this case. It is a very weak argument on the part of the claimant to say that the Exhibit is invalid after making Exhibit FD9 a major part of his case, see JayJay v.Skye Bank Plc [2016] LPELR-40185 (CA).On the right of an employer to suspend an employee, It is settled law that suspension is a tool of business practise  to address perilous situations that might affect the employer’s business, the vital fact is that the claimant had knowledge of the suspension and complied, which is the case in this suit. I find therefore that the 1st defendant’s letter of suspension dated 11th of October, 2011, issued to the claimant in this case is valid and binding on the claimant. I so hold.

On issue two, it is the claimants contention that claimant was supposed to have been dismissed 3 months after the suspension but instead he was handed a scanned copy of Exhibit FD10 on 10th August 2012, 8 months thereafter, and this was in contravention of S. 8: 16:1(iv), 8:17:1(iii):6(i) & 8: 22 of Exhibit FD8 and the copy of the letter of dismissal tendered as Exhibit FD 10 cannot therefore properly determine the employment of the claimant.

The defendants on the other hand contended that the claimant admitted the fact of his dismissal within the time stipulated in his pleadings. Consequently, the 1stDefendant dismissal of the Claimant is valid.

In Ahmed v. Abu & Anor [2016] LPELR-40261 (CA), the Court of Appeal per Wambai, J.C.A. related the duty the law imposes on an aggrieved litigant in a case of wrongful dismissal as follows:

  1. He must prove the employment;
  2. He must place before the court the terms of the contract of employment and;
  3. He must prove in what way or manner the said terms were breached by the employer.

It is important to note that counsel to the defendants have relied heavily on the argument that the claimant’s case was without foundation as he failed to plead particulars of his employment with the 1st Defendant in his extant Amended Statement of Facts titled 2nd Amended Statement of Facts and that he woefully failed to plead and prove how the said terms and conditions of his contract of employment was breached by the 1st Defendant.

The claimant in response referred the court to paragraphs 2 & 4 of the Defendant statement of Defence which reads “Defendants admit paragraph 1 of the statement of claim to the extent that the claimant was a staff of the 1st Defendant” and Exhibit FD1which indicated that the claimant was a staff of the 1st Defendant, and that although the claimant did not expressly state in his pleadings the particulars of his letter of employment, he tendered same in evidence before this court and same was admitted as Exhibit FD1without objection. The defendants themselves also did not disprove this evidence in any way but rather admitted the fact that the claimant was indeed a staff of the 1st defendant.

It is settled law that it is part of the adjudicatory duty of a trial court to evaluate all the evidence adduced before it, even as it is also settled law that the age of technical justice or technicalities is now a thing of the past, I make bold to say that substantial justice is the order of the day and the court is bound to ensure that justice is not only done but manifestly seen to be done. See ALHAJI AYINDE AWURE & ANOR V. ALHAJI ADISA ILEDU (YUSUF ADISA) [2007] LPELR-3719 (CA)

The defendants having admitted that the claimant was a staff of the 1st defendant, it would be a grave error and mis-judgment to dismiss the claimant’s case simply because he did not expressly plead his letter of appointment in his statement of facts as canvassed by the defendants, moreover in considering the case of the claimant, it is the whole gamut of the pleadings and evidence adduced that will be examined. This court having done this, finds that the pleadings and Exhibit FD1 lined up with the evidence adduced before this court to arrive at the conclusion that the claimant was indeed a staff of the 1st defendant. I so hold.

On the 2nd and 3rd requirement captured above, the claimant placed the terms of the contract of employment before the court and tendered in evidence, Exhibits FD1 the letter of employment and FD8 the terms and conditions of service of the 1st defendant, he also adduced evidence on how his contract of employment was breached in his evidence.

It is settled law that there are three classes of employment, this was considered in Salami v. Union Bank of Nigeria Plc [2010] LPELR-8975 (CA), a Court of Appeal case per Lokulo-Sodipe, J.C.A, when he held as follows:

“The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavor. In this regard see the case of Central Bank Of Nigeria v. Igwillo [2007] 14 NWLR (Pt.1054) 393”

In the instant case it is glaring that the relationship between the claimant and the defendants is purely a master /servant relationship and as such he is subject to the terms and conditions of the defendants. Paragraph 5 of Exhibit FD1states thus;

“Your employment history with the predecessor bank shall remain continuous and cumulative into the new UBA and shall be subject to the internal regulations of the bank as set out in the staff handbook, circulars and memoranda issued by the new bank from time to time. These terms and conditions supersede any prior ones between you and the predecessor bank.”

It is the position of the law that a master can terminate the employment of his servant at any time and for any reason or no reason at all, provided the termination is in accordance with the terms of the contract of employment. See Ajuzi v. FBN Plc. [2016] LPELR-40459 (CA).

The recommendation of the Disciplinary Committee of the 1st defendant is well spelt out in Exhibit FD2 and is hereby restated;

The DC members unanimously recommended that:

  1.  The trio-Subomi Fasida (Claimant), Andrew Isonah and Peter Elemah are to be immediately placed on recovery suspension without pay and given three (3) months to recover fully as they are critical to the recovery process.
  2. The trio should be dismissed at the expiration of three (3) months or when the loss amount (N 15, 412, 224. 41) is fully recovered.
  3. Fraud/Forgery recovery unit should immediately take up the case and hand them (i.e. Subomi, Andrew and Peter) to law enforcement agents for recoveries. The above recommendations are in tandem with the provision of the conditions of service (Exhibit FD8)

The functions of the Disciplinary Committee are well spelt out in S8:22 of Exhibit FD8 as follows:

TIMELINE FOR THE RENDITION OF DC REPORTS AND APPROVAL/IMPLEMENTATION OF THE RECOMMENDATIONS.

Dc members shall ensure that DC reports are promptly prepared, signed off by all Dc members and rendered to HCM for implementation action. The following specific timelines shall apply to the rendition of DC report and implementation of the recommendations:

  1. Rendition of DC Report to HCM – 72 Hours (3 Working Days) from the date of DC sitting.
  2. Implementation of Approved DC recommendation- 72 Hours (3 Working days) form the date of receipt of DC reports.

Non Compliance with these deadlines constitutes an offence which shall be treated as a case of negligence/failure to perform assigned task against the affected officer and meted with appropriate sanction.

In the instant case, claimant’s case is that he was supposed to have been dismissed after 3 months, and this was not done, rather he was given a scanned copy of Exhibit FD10 on 12th August 2012 when he visited the head of office of the 1st Defendant to know his fate since he was under the impression that he was still on suspension by 1st Defendant, and at that point in time, he had been arraigned at the Magistrate court, and the perceived  suspension had entered into the 11 (Eleven) month without pay, while on the part of the 1st defendant it was over Eight (8) months after the dismissal of the claimant’s appointment. In other words, the claimant asserted that the 1st Defendant breached the provisions of S. 8 of Exhibit FD8, with particular reference to the provisions copiously stated as follows:

8.5.2 Guiding Principles and Philosophy

          The disciplinary process shall be guided by the following philosophy.

8.5.2.1 Justice

  1. Employees shall be protected against abuse of the disciplinary process, and miscarriage of justice.
  2. The disciplinary process shall guarantee the right of employees to appeal against perceived injustice or abuse.

iii.            Every staff appearing before the Disciplinary Committee shall be given the benefit of doubt.

  1. The Group shall have a zero tolerance for violation rules.

8.5.2.2   Fairness

  1. In most cases, sanctions shall not be imposed on an employee without a formal query and reasonable time for response. The employee’s response to the query shall, as much as possible, be in writing and shall be signed by the employee.
  2. Every employee appearing before a disciplinary committee shall be given the opportunity of fair hearing, except where the employee declines an invitation.

8.5.2.3 Equity

  1. Sanctions shall be commensurate with the offence/infraction.
  2. Sanctions shall not be discretionary or discriminatory, but consistent with the disciplinary process.
  3.  Where a staff declines an invitation to appear before DC, the DC shall hold his/her absence and the decision of that DC shall be binding on such staff.
  4. All DC sittings shall be preceded by an investigation by Group Audit & Control Directorate to determine the involvement of the staff in the matter and the report of the investigation shall be presented to the committee by the investigator.

8.5.2.4 Promptness/Timeliness

  1. Investigation of disciplinary cases shall be concluded within a week since justice delayed is justice denied.
  2. Extension of the investigation period can be granted by the GD-A&C direct reports on sufficient justification, which shall not exceed two (2) working days.

iii.            A Disciplinary Committee meeting shall be convened not more than one week after conclusion of investigations.

  1. In all circumstances the investigation must be concluded within a maximum of 5 weeks from the date of reporting the incident, and a Disciplinary Committee must be convened within one week of concluding the investigation. (underlining mine for emphasisis.)

8.10 The Disciplinary Appeal Process

  1. Staff shall have right of appeal against any disciplinary sanction, whether recommended directly by a supervisor or by a disciplinary committee.

……………………………………………………………………………………

  1. The right of appeal shall lapse 7 working days after the staff was advised of the sanction by the Human Resources division. The date of mailing the suspension letter to the staff shall be the effective countdown date for the 7 working days right of appeal by staff.

The entire case of the claimant on this issue is that the dismissal letter of 6th January, 2012 ought to have been served on him 3 months after the letter of recovery suspension, and the 1st defendant having not complied with this, gave him the impression that he was still under suspension, until he was given a scanned copy of his dismissal letter on the 10th of August 2012 when he visited the office1st defendant after his acquittal by the Magistrate court. It is therefore safe to say that what is in contention is the time the letter of dismissal was served and when effective. It is settled law that a dismissal can only take effect from the date it was received by the concerned officer, see WAEC V. Oshionebo [2006] 12 NWLR (Pt.994) 258 at 272-273.; Adefemi v Abegunde (2004) All FWLR 2109 at 2129.

The claimant asserted that he became aware of his dismissal from the 1st defendant on the 10th of August 2012.  However, it is in evidence vide paragraph 13of the claimant’s witness statement on oath adopted by him at the hearing that he stated as follows:

“That while the investigation was going on, the claimant was placed on recovering suspension followed by a dismissal and an arrest by the police following the complaints laid by the 1st Defendant, claimant shall rely on the letter of recovery suspension dated October 11th 2011.”

Assuming that indeed the letter of dismissal was received by him on the 10th of August 2012, does it invalidate the letter of dismissal? I think not as the dismissal was eventually communicated to him and he even went ahead to write a letter of appeal against his dismissal, meaning that at that point he was aware of it as of August, 2012.

The claimant’s counsel has argued that the fact that the 1st defendant was unable to tender the acknowledged copy of the letter of dismissal allegedly received by him, supports his case, he went further to buttress this point when he referred to the issuance of a notice to produce same on the defendants, and their failure to comply. He cited section 154 of the Evidence Act, 2011, and argued that the onus has shifted to the defendants to prove that the letter was actually given to the claimant on the 6th of January, 2012, and their inability to discharge it indicates that the claimant’s dismissal was wrongful and he is entitled to damages.

In Wilbros Nig. Ltd. & Anor v. Macaulay [2009] LPELR-8507 (CA) the Court of Appeal per Abdullahi, J.C.A held thus;

“It is now settled beyond peradventure that in a master and servant relationship, the termination of an employment in a manner that is inconsistent with the terms of employment agreement connotes only wrongful termination of appointment or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrongful dismissal.”

In evaluating the above evidence, I find that it is clear that the claimant was not immediately notified of his dismissal, and Exhibit FD2 will not qualify as a letter of dismissal but are recommendations, which can only be deemed activated upon the issuance of a letter of dismissal Exhibit FD10. The defendants having failed to debunk the assertion that the claimant only became aware of the dismissal in August 2012, makes it operational from August 2012, the date he received the said letter and not before.

I find therefore that the letter of dismissal dated January 6th, 2012 is valid and binding on the claimant from August, 2012. I so hold.

The last issue to be determined is the reliefs sought by the claimant on this case, I have examined the claims in this case as stated in the extant statement of Fact and these are my findings;

Relief a is for a Declaration that the arrest, detention and malicious prosecution of the Claimant for 34 months, 13 days was wrongful, unlawful, unconstitutional and of no effect. This relief is bound to fail as this a claim bordering on malicious prosecution which is a criminal matter and is outside the jurisdiction of this court as envisaged in Section 254C of the Constitution of the Federal Republic of Nigeria 1999. I find that this relief fails for the want of jurisdiction of this court to adjudicate on same. I so hold.

Relief b and c are i, for a Declaration the Claimant is entitled to all his salaries and other allowances which he ought to have been paid while the matter was in Court for a period of 34 months and 13 days and Relief c is for ii, an Order mandating the 1st, 2nd& 3rd Defendants to pay the Claimant the salaries and other allowances he ought to have been paid from October 2011-13th August 2014 as specific damages (i.e. 34 months, 13 days).

The claimant spelt out the details as follows;

  1. Monthly salary (taxable and non taxable at 584,390.66 per month x34 =       N19,869,282.44
  2. Daily wage (N584, 390.66 ÷ 30) x13 days= N253,235.94

                                                                                                     N 20,122,518.38

iii. Leave allowance of N186, 681.44 per annual x 3 =                    N560,044.32

  1. Thirteenth month at N129,639.89 x 3=                                      N388,919.67

     Sub-total                                                                               N21, 071, 482.32

A cursory look at EXHIBIT FD10 particularly clause 8.12 provides as follows;

  1. Staff on suspension resulting from sanction or indefinite suspension relating to fraud & forgery cases, credit abuse and FX irregularities shall not be entitled to salary for the period on suspension. However, suspension as a result of other investigation cases shall attract 50% of full monthly salary subject to a maximum suspension period of three months (except where shorter time period is mandated by legislation). Withheld salaries shall, however, be refunded if the case is determined in favour of the staff.
  2. It is expected that the case of a staff on suspension shall be determined within the 3 months period, in the event that the matter extends beyond 3 months or the shorter period stipulated by legislation due to the involvement of external investigators, law enforcement agencies or otherwise, such staff shall be placed on zero pay for the period in excess of 3 months or the shorter period. Withheld salaries shall, however, be refunded if the case is determined in favour of the staff. 

iii.              Employees whose contract of employment is determined by resignation of the staff or termination by the employer shall be entitled to receive terminal benefits, as provided in the bank’s personnel policy.

This court has earlier held that the claimant’s suspension for three months without pay and dismissal is valid, this relief is therefore not available to him see Olatubosun v. NISER [1999] LPELR-257 SC. However, further to this, I have found that the effective date of dismissal of the claimant is 10th August 2012, because he wa not immediately notified of the dismissal. Nonetheless the reliefs fails.  See clause  8.12(ii) above.  I so hold

Relief d is for a Sum of ₦10 million as general damages. General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendants act, and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See Mrs.Abosede Dauda v. Lagos Building Investment Co. Ltd & 3 ors [2010] LPELR-4024 (CA)

General damages is defined as such that the law will presume to be the direct natural or probable consequence of the act complained of or damages resulting from the loss flowing naturally from the breach of contract and is incurred in due consequence of breach see Okoro J.C.A in NEPA v. Malam Muhammad Auwal [2010] LPELR-4577 (CA)

It is in evidence in this case that the dismissal of the claimant was not communicated to him until 8 months after the fact, this had put him in a detrimental position, with the defendants also initiating his criminal prosecution until he was discharged and acquitted by the court in August, 2012, the claimant has therefore suffered a loss to which I find he is so entitled to damages in this case. Consequently, I hereby award a sum of N5m as general damages to the claimant to be paid by the Defendants in this case. I so hold.

Relief e is for the Sum of ₦5 million as cost of litigation.

It is trite law that cost follows event, a successful party in any event is entitled to his costs. See Adelakun v. Oruku [2006] 11 NWLR (pt.992) pg.625. Order 55 Rule 5 of the National Industrial Court Rules, 2017 empowers the court to indemnify a successful party for the expenses to which the party has been unnecessarily put in proceedings. The claims of the claimant having succeeded, in part, the sum of One Hundred Thousand Naira (₦100,000.00) is awarded in favour of the Claimant and payable by the Defendant as the cost of this action.

In all, I hold that the Claimant’s case succeeds in part and for the avoidance of doubt, I declare and order as follows:

  1. The suspension of the claimant and his subsequent dismissal is valid.

  1. The effective date of dismissal of the claimant is August 10th, 2012.

  1. A sum of N5m is hereby awarded as general damages to the claimant to be paid by the defendants.
  2. The sum of One Hundred Thousand Naira (₦100,000.00) is awarded in favour of the Claimant and payable by the Defendant as the cost of this action.

 

  1. All monetary sum awarded in this Judgment shall attract an interest of 20% per annum on the total judgment sum until same is finally liquidated.

Judgment is accordingly entered.

 

                                    Hon. Justice A.A Adewemimo

                                                         Judge

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