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National Industrial Court

IYAMA P.GORDY -VS- BANK OF AGRICULTURE LTD

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVIDION

HOLDEN AT YOLA

DATED THIS 2ND DAY OF DECEMBER 2019

BEFOREHIS LORDSHIP, HONORABLE JUSTICE K.D. DAMULAK

SUIT NO. NICN/YL/10/2018

BETWEEN

IYAMA P.GORDY                                ………………………………………CLAIMANT

AND

BANK OF AGRICULTURE LTD                                ……………………… DEFENDANT

REPRESENTATION

  1. E. Okonkwo for the claimant.
  2. A. Udeagbala with M. S. Ibrahim for the defendant.

JUDGMENT

  1. INTRODUCTION

This is a claim of wrongful dismissal. The claimant filed a complaint in this court on 9/11/2018 accompanied by statement of facts, witness statement on oath and all the necessary documents. The claimant prays for the following;

  1. a)A declaration that the investigation and eventual dismissal of the claimant was done in bad faith, malicious, born out of sentiments and emotions as the claimant is not culpable after the said investigation.
  2. b)A declaration that the claimant being subject to a head, who is her superior in the Yola Branch of the Defendant as at the period in question, cannot be held liable for the actions or inactions of the head, who was her superior.
  3. c)A declaration that the claimant cannot be held liable for the actions or inactions of activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the manager of the Bank there.
  4. d)A declaration that the claimant is entitled to compensation from the defendant for her wrongful dismissal from office, the embarrassment caused as a result of the actions of the Defendant.
  5. e)General damages or compensation in the sum of N30, 000,000.00 (Thirty Million Naira) against the defendant in favour of the claimant for wrongly dismissing the claimant in bad faith and for no concrete reason, causing the claimant trauma, pains and other hardship.
  6. f)The cost of this action.

 

The defendant also filed their statement of defence on 14/2/2019.The defendant counter claims against the Claimant as follows;

  1. a)The sum of (N16,308,869.83)Sixteen Million, Three Hundred and Eight Thousand, Eight Hundred and Sixty Nine Naira Eighty Three Kobo being the total amount misappropriated by the Claimant while in the service of the defendant between 2013 to 2016 through illegal cash withdrawal, withdrawals of cash of insurance premium and stamp duties.
  2. b)The sum of (N41,088.95) Forty One Thousand Eighty Naira Ninety Five Kobo for furniture allowance for the years 2016/2017 which she failed to repay.
  3. c)Interest at the CBN approved rate per annum on this sums from March 15, 2017 until judgment.
  4. d)10% interest on judgment sum until final liquidation
  5. e)The sum of (N5,000,000.00) Five Million Naira being counsel’s professional fees for prosecuting this suit in addition to the handling cost of this suit.

The claimant filed a reply and a defence to the counter claim on 9/5/2019 without any document or witness statement on oath accompanying same.

  1. FACTS OF THE CASE

The claimant gained employment with the defendant on 17th day of November, 1999 and her appointment was regularized on the 28th day of November, 2003. The claimant had worked in the services of the defendant for a continuous period of 16 years. The claimant received a query on the 21st day of November, 2016 which she responded to, after the defendant concluded its investigation, she was subsequently dismissed from the bank based on paragraph 6.5.2(d) of the condition of service.

 

  1. CASE OF THE CLAIMANT

Testifying in line with her pleadings on 20/6/2019, the claimant as CWI stated as follows;

That at all material time, I was a staff of the Defendant residing in Yola.

That on the 17th day of November, 1999, I was given an offer on probation with the defendant, when it was still referred as “PEOPLE’s BANK OF NIGERIA” and was confirmed vide a confirmation letter dated November 28th, 2003 effective from 7th day of December, 2001. That I carried my duties diligently which attracted me some awards and promotions and rose to the rank of Deputy manager/head of retail banking at the Yola branch of the Bank and had my appointment terminated as the branch manager at the Ganye branch.

 

That I received an internal memo on the 22/09/2016 captioned “AUDIT OBSERVATION” alleging that as the head of retail banking I allowed myself to suppress the internal control of the bank by allowing the withdrawal of the sum of N6, 963,125.00 (Six Million Nine Hundred and Sixty Three Thousand, One Hundred and Twenty Five Naira) only as premium as well as the sum of N3, 656,750.00 (Three Million, Six Hundred and Fifty Naira) only as stamp duties.

I responded the following day vide a letter dated 23rd day of September, 2016 asserting that I was superintended by the branch manager late Wakil Liman.

That the Defendant herein sent another letter dated 1st day of November, 2016 titled “ADDENDUM AUDIT OBSERVATION” claiming that they have answered theirs and I am to answer for the years 2013 – 2015 as I was the head of retail banking. That my response to the said letter is dated  2nd day of November, 2016, wherein, I requested that my Zonal Manager grant me permission to come respond to the said letter.

That on the 21st day of November, 2016, I received yet another letter titled QUERY: INVESTIGATION OF YOLA BRANCH OFFICE” where in the defendant listed the alleged offences against me. I received a letter inviting me to appear before the Zonal office disciplinary committee on the 28th day of November, 2016 of which I attended and gave my side of the happenings.

On the 12th day of April, 2017, I was issued a letter of dismissal by the Defendant, wherein, the defendant asserts that I was at the Ganye branch of the defendant as at when some infractions occurred. After I replied the letter of dismissal, the Defendant then gave me another letter of dismissal dated the 12th day of May, 2017, wherein they gave reasons for my dismissal without withdrawing the earlier letter written to me.

The claimant tendered the following documents in evidence and they were admitted and marked as follows:

  1. Offer of appointment – Exhibit. IPG1
  2. Confirmation of appointment – Exhibit. IPG 2
  3. Employee handbook – Exhibit. IPG 3
  4. Lay Service Around –  Exhibit. IPG 4
  5. Promotion Dated 8/1/2016 – Exhibit. IPG 5A
  6. Promotion Dated 11/5/2016 – Exhibit. IPG 5B
  7. Regrading dated 13/12/2004 – Exhibit. IPG 5C
  8. Audit Observation Dated 22/12/2016 – Exhibit. IPG 6A
  9. Re-addendum Audit observation dated 1/11/2016 – Exhibit. IPG 6B
  10. Response to Audit observation dated 23/9/2016 – Exhibit. IPG 7
  11.  Re-addendum Audit observation dated 2/11/2016 – Exhibit. IPG 8
  12.  Query: Investigation of Yola branch office dated 21/11/2016 – Exhibit. IPG9
  13. Transfer dated 25/8/2016 – Exhibit. IPG 10
  14.  Schedule of loan repayment/remittance from June 2013 to December 2015 – Exhibit. IPG 11
  15.  Invitation to appear before disciplinary committee dated 28/11/2016 – Exhibit. IPG 12
  16. Dismissal letter dated 15/3/2017 with reference to operation of Yola branch office – Exhibit. IPG 13
  17.  Dismissal letter dated 13/3/2017 with reference to operation of Ganye cash center – Exhibit. IPG 14.

Under cross examination CW1 testified that I worked for the Defendant for 17 years, 4 months from 1999 to 2017. Within this period, I held several positions in the defendant.  I was the deputy manager and head retail banking but not a branch manager. Ganye does not have branch manager but have cash center. I was the head of cash center Ganye.  In my position as deputy manager and head retail banking and also head of Ganye cash center, I can take decisions on behalf of the Defendant as head of Ganye cash center. My decisions are binding on the defendant. The defendant issues me a query and I appeared before the disciplinary committee. The committee was constituted according to the rules of the defendant. I was issued with the letter of dismissal. I understand the content.

 

  1. CASE OF THE DEFENDANT

Testifying in line with the statement of Defence, DW1, one Awwal Ibrahim, Manager Audit at the Bauchi Zonal Office, testified as follows:

 

I know as a fact that even though the claimant was duly promoted alongside other deserving staff, she was on the 14th of October, 2008 and 8th September, 2008 cautioned by the Zonal Manager Bauchi and the headquarters of the bank at Kaduna for fighting and assaulting a co-employee in the bank hall of Bauchi Branch Office.

The claimant was served with the audit observations to enable her make her defence.  As at 2016, the claimant served in Yola and Ganye branches and never at Bauchi branch. The query issued the claimant was dated 21st November, 2016 but served on her on the 25 November, 2016. The claimant admitted liability to the audit observation dated 25th November, 2016. I know as a fact that the claimant appeared before the zonal management disciplinary committee at Bauchi and gave explanation regarding the audit observations. The claimant never raised any other issue before the Disciplinary committee on issues contained in the query.

The claimant as head retail banking of the defendant on or about 10th of April, 2015 allow an irregular withdrawal in  Cash in the sum of N5,688,994.83) from the vaults of the defendant without due process.

That the Claimant as head of retail banking of the Defendant in Yola allowed withdrawals in cash of various sums amounting to (N6,963,125.00) as insurance premium between 2013 – 2016 without due process. That the Claimant also allowed the withdrawal of (N3,656,750.00) without due process.

The Claimant allowed the late head of Yola branch, Wakil Liman to temper with the Bank funds on the pretense of financing Ganye cash canter’s expenditure and imprest even when it was clear that the cash center was buoyant enough to settle its bills. That the Claimant collected furniture allowance for the year August, 2016/August, 2017 in the sum of (N41,088.95) but has not repaid same to the defendant.

DWI tendered 2 documents in evidence which were admitted and marked as follows:

  1. Caution dated 8/9/2009 – Exhibit AI1
  2. Minutes of the zonal management disciplinary committee meeting held on Friday, 2nd December 2016 – Exhibit AI2

Testifying under cross examination, DW1 said I know the claimant as a staff of  the defendant since 2013 to date. She has never been accused of diverting funds for her personal use from the records. I am not aware of CBN rules regarding auditing of Bank branch, but I am aware of our rules that after auditing a branch, we give the branch manager a copy of the audit report for him to respond within 48 hours or more in some circumstances. We audit big branches twice a year and for small branches it is once a year.

The internal Auditors Auditted the accounts of Yola for 2013 to 2016. Many infractions were found. No major infractions were found. The infractions in relation to this case, were found in 2015 to 2016. I know Alhaji Liman Wakil, he was the branch manager, he died in January 2016. Alhaji Liman Wakil was the branch manager of Yola between 2013 to January 2016. For the period of 2015 and 2016 for which the claimant was queried, Late Alhaji Liman Wakil was her superior. The reason why the Claimant was dismissed is not entirely for the actions of her superior, Alhaji Liman. After the disciplinary committee meeting, funds were found to have been diverted by the claimant. I cannot say how much but they are stated in minutes of the meeting Exhibit A12. The Claimant was punished for all she allows her superior to do.

  1. DEFENDANT’S FINAL WRITTEN ADDRESS

In his final written address, learned defendant’s counsel formulated three (3) issues for determination

  1. Whether from the facts of this case, the Claimant’s dismissal from the service of the Defendant is unjust and born out of malice, sentiments and emotions.
  2. Whether the Claimant is entitled to the reliefs sought in paragraph 42 of her statement of fact.
  3. Whether the Defendant is not entitled to the counter claim against the Claimant.  

Arguing his issue 1, learned counsel submit that the dismissal of the Claimant from the service of the defendant was neither unjust nor born out of malice, sentiments and emotions but the outcome of an administrative tribunal duly constituted under paragraph 6.9.6 of the Employee handbook of the defendant of which the Claimant was duly heard. In the case of IDONIBOYE-OBUVNNPC (2003) 4 MYSC 131at 147,  the court held that;

“An employer is entitled to bring the appointment of his employee to an end for any reason or for no reason at all.”

The claimant’s claim of malice and sentiments are unfounded as the particulars were never pleaded. The claimant only attempted to provide the particulars in her evidence-in-chief, evidence not pleaded goes to no issue. See ALIBO ORS V.OKUSIN & ORS (201O) 3-5 SC (PT.1) 41 AT 62.

The claimant has not pleaded her terms of employment contract before the Honourable Court, neither has she proved in what manner the defendant has breached such terms of employment. The claimant exhibited only page 1 of her employment contract dated 17th November, 1999 but withheld the remaining pages raising the presumption that those pages would be unfavorable to her. See section 167 (d) Evidence Act, 2011 as amended.

The burden of proof as provided in section 136(i) of the Evidence Act, 2011 as amended of any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by the law that the proof of that fact shall lie on any particular person.

Arguing his issue 2, learned counsel submit that the Claimant is not entitled to the reliefs sought in paragraph 42 of the statement of facts. The nagging question is how would the court grant reliefs, the complaint of which is founded on documents not placed before the court. These documents are within the reach and acknowledge of the Claimant but she deliberately ignored placing them before the court hence the court cannot pronounce on documents not before it. See  AGBO V. STATE (2006) ISC (pt. II) 73 at 94 Paras 5-30.

Claimant wants the court to set aside the findings of the investigative panel on the activities of the Yola branch of the Defendant and the recommendations of the disciplinary committee of the defendant without pleading and leading evidence on those documents. Even though the minutes of the Zonal Management Disciplinary Committee meeting was pleaded and tendered by the defendant as exhibit AI2, the claimant ought to have been the one to plead and furnish the court with these documents since she wants the court to quash the recommendations contained in these documents, particularly the interim report on the investigation of Yola branch office.

Counsel  submit that if the court declines reliefs 42 (a), (b) and (c), then relief 42 (d) and (e) would naturally fail as it would rest on empty foundation see MACFOY V. UNITED AFRICA CO. LTD (1962) AC 152.

Counsel therefore urged the court to hold that the Claimant is also not entitled to the reliefs sought in paragraph 42 (d) and (e) of her statement facts.

In a claim for wrongful dismissal, the amount of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract or the amount which would have been earned by the plaintiff over the period of notice.

Arguing his issue 3, learned counsel submit that the defendant is fully entitled to the counter-claim against the Claimant. This is because from the response of the Claimant to the query dated 25th November 2016, Exhibit GP7, she has not denied that her actions or inactions has resulted in substantial loss to the defendant, she only pleaded for leniency on the part of the defendant. Also by exhibit AI2 , pages 13-21, particularly pages 15-17 of the minutes, she admitted making mistakes while handling the business of the defendant and therefore incurred losses for the defendant.

Having admitted making mistake that cost the defendant losses the defendant is at liberty to choose whether to forgo the losses or to ask for the restitution of such losses and in this return such monies lost as a result of her mistakes.

The claimant’s defense to counter-claim was even abandoned as there was no single evidence in support of her defense in support of the counter-claim. This may be because having pleaded and led evidence on her response to query dated 25th November 2016, exhibit IGP7, wherein claimant admitted making mistakes that resulted in losses to the defendant, there would be no need to lead evidence to deny the counter-claim of the defendant as that would have been contradictory since the trial court is not expected to consider the same questions separately in relation to the claim and counter-claim. See A.G KWARA STATE .V. OJULARI (2007) 1 NWLR (pt. 1016) 551 at S80-581.

Finally, counsel urged the court to dismiss the claim of the Claimant as being frivolous and without basis and also to grant the counter claim of the defendant as prayed.

  1. CLAIMANT’S FINAL WRITTEN ADDRESS

In the Claimant’s final written, learned counsel also formatted three issues for determination as follows;

  1. a)Whether from the facts and circumstance of this case, the Claimant can be held liable for the actions or inaction of her superiors.
  2. b)Whether the Claimant is entitled to the relief sought in paragraph 42 of her statement of facts.
  3. c)Whether the Defendant is entitled to the counter claim against the Claimant.

Arguing his issue 1, Learned counsel submit that without fear of equivocation that the Claimant cannot be held liable for the action or inaction of her superior as in the instant case. This position is as contained in Exhibit 1PG 6, IPG7 and IPG8. In Exhibit IGP7 particularly, the Claimant’s answer is clear and unambiguous as she claims that her superior, the branch manager, Alhaji Wakil, Liman instructed her to raise a cheque in the sum of N1,295,161.25k under the guise that it was an inter branch transaction as he had paid the sums of money into account of the zonal office of which she believed and carried out the instruction without questioning same. The allegation in exhibit IGP6 is that claimant allowed yourself  to be used to suppress the internal controls of the bank. By allowing the withdrawal of cash sum of N6 963125.00 and the sum  N3,656,750.00 respectively as insurance premium and stamp duty.”  Under cross examination also, the lone witness for the defendant testified in the regard that as at the time of this allegation, the late Alhaji liman Wakil was her superior and instructions were taken from him. This is in tandem with the claimant’s assertion. An agent cannot be held liable for the actions or inactions of a disclosed principal.  See the case of MOFAS SHIPPING LINE (NIG) LTD V. NATIONAL MARITIME AUTHORITY (2002) FWLR (PT.23) at 1153.  Paragraph 3.5.4 of the said exhibit AI 2 are the allegations or charges against the claimant wherein all the sub paragraphs are for allowing her superior act in his professional duties, or for obeying the instructions of her superiors.

The committee observed in paragraph 3,5,8, of the said disciplinary report that there is no evidence to establish that the Claimant directly benefited from the financial infraction in the branch office which is also in tandem with the testimony of the defendant’s lone witness wherein he stated that the dismissal of the Claimant was as a result of the infraction that occurred while the late Alhaji Liman Wakil was the branch manager of the bank.

The Defendant in a futile attempt at justifying the dismissal of the Claimant from the service of the defendant cited the case of IDONIBOYE-OBU V NNPC (2003) 4MJSC 131 at 147  as contained in his paragraph 4.1.2 while we concede to the fact that an employer is entitled to bring the appointment of the his employee to an end for any reason or for no reason at all, this does not apply to dismissal, thereby bringing her career to an abrupt end without terminal benefits and any iota of opportunity to seek any job elsewhere. Exh AI 2 in page 17 paragraph 3.5.7 – 3.5.8 clearly spells out the observation as well as the recommendation that the claimant’s appointment be terminated rather than a dismissal.

Arguing his issue 2, Counsel submits that the Claimant is entitled to all the reliefs sought in paragraph 42 of her statement of facts. Taking a look at exhibits IPG6A, IPG6B and IPG7 respectively, it is crystal clear that the claimant acted basically based on instructions from her superior and nothing else. Similarly,  the defendant in Exhibit AI 2, paragraph 3.5.8 held that there was no evidence to show that the claimant benefitted from the financial infractions in the branch office. Under cross examination, the defendant’s lone witness informed this Honourable Court that the banks were audited at least once every year and at some other times, after the period of 6 months. The question then is how come that these infractions were not discovered for years until the demise of the said Manager and after his family had enjoyed all the benefits accrued to him.

Arguing his issue 3, learned counsel submitted that the Defendant cannot be approbating and reprobating all at the same time. Even though the Claimant did not file a reply to the Defendant counter-claim, the said counter-claim shall fail  where the claim against the Defendant succeeds, either in part or in whole.

That the sum of N47,088.95k furniture allowance collected by the Claimant for the 2016/2017, is a yearly allowance and not a loan granted her, of which she and all the other staff members of the Defendant benefit from on a yearly basis.

On the claim for the sum of N5,000,000.00 as professional fees for prosecuting this suit in addition of handling cost of this suit.  The position of the law is settled in the case of S.P.D.C NIG LTD V. OKONEDO (2008) 9 NWIR PT 1091 at 85, particularly at pg 122-123.

In the instant case, counsel failed to lead evidence in prove of the solicitor’s fee in special damages to say the least, as held by the superior court, it is not only unethical, but also an affront to public policy.

In conclusion, counsel urged the court to grant all the Claimant’s reliefs sought and resolve all the issues in favour of the Claimant and against the Defendant and dismiss the counter-claim in its entirely as lacking in merit and substance.

  1. ISSUES FOR DETERMINATION

The defendant counsel formulated issues for determination as follows;

  1. Whether from the facts of this case, the Claimant’s dismissal from the service of the Defendant is unjust and born out of malice, sentiments and emotions.
  2. Whether the Claimant is entitled to the reliefs sought in paragraph 42 of her statement of fact.
  3. Whether the Defendant is not entitled to the counter claim against the Claimant.  

The Claimant’s counsel also formatted three issues for determination as follows;

  1. Whether from the facts and circumstance of this case, the Claimant can be held liable for the actions or inaction of her superiors.
  2. Whether the Claimant is entitled to the relief sought in paragraph 42 of her statement of facts.
  3. Whether the Defendant is entitled to the counter claim against the Claimant.

The issues as formulated are the same, the 1st and 3rd  issues are adopted with issue one amended to read whether from the facts of this case, the Claimant’s dismissal from the service of the Defendant is wrongful.

  1. COURT DECISION

ISSUE 1.  whether from the facts of this case, the Claimant’s dismissal from the service of the Defendant is wrongful.

The defendants contention is that the claimant being subject to a head, who is her superior in the Yola Branch of the Defendant as at the period in question, cannot be held liable for the actions or inactions of the head, who was her superior and that the claimant cannot be held liable for the actions or inactions of activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the manager of the branch there.

It is her pleadings and evidence that in the letter of query, paragraphs (a),(b),(c ), and (g)  all stated that she allowed certain infractions, while paragraphs (d),(e),(f),(h) and (i) are direct accusations against her.

That at the Yola branch, she was only the head of retail banking of the branch which was superintended by one late Wakil Liman, who was the  branch manager, while the anomalies at the Ganye branch transpired before her transfer to that branch by a letter dated 25/8/2016.

The defence of the defendant is that from her response to the query that followed  the audit observation dated 25th   November, 2016 she in fact admitted liability, the claimant clearly admitted she made mistakes. The allegations in the query are repeated in support of the counter claim.

In this case, the documents shall aid us better in determining the issues.

In an internal Memo dated 22/9/2016 and titled Audit Observations, exhibit IPG 6A, the defendant wrote the claimant as follows;

“We observed that as the Head of Retail Banking, Yola Branch, you allowed yourself to be used to suppress the internal controls of the bank by allowing the withdrawal in cash the sum of N6,963,125.00 and N3,656,750.00 respectively as Insurance Premium and Stamp Duty.

You should justify your action why disciplinary action should not be taken against you for such avoidable lapses”

It is noteworthy that the accusation here is that of allowing herself to be used, implying she is not the perpetrator but was used. The question is how was she used? Her response to this may throw some light.

On 23/9/2016, the claimant responded as follows;

The late Manager, Alh Wakil Liman was the first manager that trained me as a new staff in the then people’s Bank…. So when he came to Yola as branch head, it was to me another opportunity to learn from a veteran. I assumed he had adequate experience and knowledge on the right procedures; so I took many instructions from him without questioning, regrettably, this is one of such instructions.

Having had an experience earlier in 2008 while working in Bauchi branch in which my then manager termed me as being insubordinate, I learnt the hard lesson of questioning my superiors.

I regret that my actions might have affected the corporate image of the bank and plead with your esteemed office to tamper justice with mercy as I promise that this can never happen again.  (underlining supplied for emphasis)

It is this response that defendant says is admission of the accusation.

In a query letter dated 21/11/2016 titled QUERY: INVESTIGATION OF YOLA BRANCH OFFICE, the claimant was charged as follows;

Analysis of investigation report on Yola Branch Office dated November 03, 2016 revealed some infractions against you by undermining the Internal Control of the Bank resulting in loss of the Bank’s funds by:

  1. a)Allowing the illegal withdrawal in cash the sum of N5,688,994.83 on 10/4/2015. The destination of the said cash withdrawal was unknown.
  2. b)Allowing the withdrawal in cash of various sums amounting to N6,963,125.00 as Insurance Premium. 
  3. c) Allowing the withdrawal in cash of various sums amounting to N3,656,750.00  on stamp duties.
  4. d)Circumventing the Internal Controls of the Bank by making cash payments to third parties instead of cheque payments or e-transfers in respect of insurance premium and stamp duty payments.
  5. e)Understating income and expenditure on various sub-heads in the profit and loss without authorization either from head office or Zonal office. This gave room to the illegal withdrawals from the bank’s accounts by the signatories and one of the Zonal auditors.
  6. f)Concealing the understatement of Bank balance in the journal entries demerging Ganye Cash Centre from Yola Branch office.
  7. g)Allowing the sum of N700,000.00 to be spent by the Branch Head, late Wakil Liman, while paying courtesy call on the then Chairman of the Bank without due authorization either from Zonal Office or Head office for the Branch head to undertake this visit.
  8. h)Aiding and abetting the Branch Head to siphon the Branch funds in the bid to finance Ganye Cash Centre’s expenditure and imprest even when it was buoyant enough to settle their bills.
  9. i)Non remittance of the following amounts:-
  • Excess Income to the Zonal Office – N56,505,028.19
  • Principal loan repayment to Head Office – N44,561,384.77

 

It is pertinent to note that the claimants allegation that at the Yola branch, she was only the head of retail banking of the branch which was superintended by one late Wakil Liman, who was the branch manager, while the anomalies at the Ganye branch transpired before her transfer to that branch by a letter dated 25/8/2016 was not denied, on the contrary, it was supported by the DW1 under cross examination when he testified thus;

“The internal Auditors Auditted the accounts of Yola for 2013 to 2016. The infractions in relation to this case, were found in 2015 to 2016. I know Alhaji Liman Wakil, he was the branch manager, he died in January 2016. Alhaji Liman Wakil was the branch manager of Yola between 2013 to January 2016. For the period of 2015 and 2016 for which the claimant was queried, Late Alhaji Liman Wakil was her superior. The reason why the Claimant was dismissed is not entirely for the actions of her superior, Alhaji Liman. The Claimant was punished for all she allows her superior to do”.

This piece of evidence under cross examination is the case of the claimant. The claimant’s letter of transfer to Ganye branch is also in evidence and is dated 25/8/2016 and there is no contrary evidence. This also establishes the case of the claimant that the anomalies at the Ganye branch transpired before her transfer to that branch by a letter dated 25/8/2016.

The DW1 also gave testified as follows under cross examination;

“After the disciplinary committee meeting, funds were found to have been diverted by the claimant. I cannot say how much but they are stated in minutes of the meeting Exhibit A12.”

I have considered exhibit AI2, the report of the disciplinary committee, it contains report on the claimant at pages 13 to 21. There is no record of any finding that funds were diverted by the claimant.

On the contrary, this was the finding of facts and recommendation by the disciplinary committee at paragraph 3.5.8 at page 17 of exhibit AI2 which reads as follows;

RECOMMENDATIONS BY THE COMMITTEE

The Staff was arraigned under Section 6.5.2( d) and (l) of the Bank’s Conditions of Service which attracts dismissal from the Service of the Bank. However, in view of the fact that there was no evidence to establish that she directly benefitted from the financial infractions in the Branch office, Management may, at its discretion under the prerogative of mercy, Terminate her appointment from the services of the Bank.

The report of the panel, exhibit AI2 also confirms that the claimant was not found guilty of any of the accusations against her personally as in paragraphs  (d),(e),(f),(h) and (i)  of the query, exhibit IPG9.

The summation of all the above evidence, including the findings of the panel, are as follows;

  1. The claimant was not at the Ganye Branch when the infractions in that branch occurred.
  2. The infractions at the Yola Branch resulting in loss of funds to the Bank were Acts of her superior, Alhaji Wakil Liman.
  3. The claimant simply obeyed instructions from her superior and did not benefit from any of the infractions.

Now from her dismissal letter, exhibit IPG 13, she was dismissed in accordance with section 6.5.2 (d) of the Employee hand book. Section 6.5.2.(d) of the employee handbook provides as follows;

6.5.2- The following offences shall attract dismissal from service-

(d) Deviation from the accepted job method/procedure without approval resulting in to loss of bank’s and/ or customers’ assets e.g unauthorized withdrawal or cash suppression etc.

The evidence before the court is that the claimant was a deputy manager who did everything on the directives of the Branch manager. The defendants admit this much by the language of the query and even under cross examination when DW1 testified as follows;

“For the period of 2015 and 2016 for which the claimant was queried, Late Alhaji Liman Wakil was her superior. The Claimant was punished for all she allows her superior to do”.

Having established that the claimant was under instructions of a superior and is being accused for allowing her superior do what he did, can she be said to have done anything without approval or unauthorized? It is the view of this court that any action or inaction of the claimant under the directive of the Branch manager cannot be said to have been done without approval or authorization as contemplated under section 6.4.2(d) under which the claimant was dismissed. Particularly, not in the circumstance of this case, where the defendant did not show that the claimant needed any further approval or authorization for any particular transaction beyond  that of her immediate superior, the branch manager.

The defendant had contended that the claimant tendered only the first page of her employment letter so it is not before the court, same being incomplete. I have looked at exhibit IGP1, it is a complete document of 3 pages.

Defendant counsel has also contended that the report of the panel was not in evidence and not available to the claimant because it was tendered by the defendant but it is the claimant who ought to have tendered same. This argument is weak and contrary to the rules of evidence and fair hearing. Every party to a litigation is entitled to rely on any document once it is in evidence, irrespective of which party tendered it in evidence.

Based on the facts of this case and the provision of the handbook under which the claimant was dismissed, I find and hold that the dismissal of the claimant is accordingly contrary to the provisions of the Employers handbook and terms of employment as the evidence shows that everything she did was by approval or authorization of the branch manager.

Being that the employment of the claimant does not enjoy statutory flavor and so reinstatement cannot be ordered, and in keeping with the latin maxim of ubi jus, ubi remedium, the only remedy available to the claimant is any such remedies whatsoever as the claimant may appear to be entitled to as the Court thinks just, in line with section 14 of the NICA 2006, which provides as follows;

Section 14 of the National Industrial Court Act 2006 enjoys and empowers this court to resolve all issues so as to avoid a repetition of litigation as follows;

  1. The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

 

In the opinion of this court, the just remedy for the claimant in the circumstance of this case is an order remitting her dismissal to termination with her terminal benefits to be paid and it is so ordered with effect from the date of her dismissal.

Now the claimant was employed in November 1999 and by the order this court, was terminated in March 2017,  a period of 17 years and 4 months. According to the employees handbook, exhibit IGP3, chapter 7 paragraph 7.1(b) and 7.1.4  entitles the claimant as follows;

7.1(b)  The length of such notice and the sum payable in lieu  vary according to the category of employees as follows;

For employees from officers to senior managers, two months’ notice or payment of two months basic salaries in lieu of notice.

7.2.4  when the appointment of an employee is terminated, the bank shall pay his or her entitlements including the passages and luggage allowances.

I accordingly find that the claimant is entitled to two months basic salary in lieu of notice and her terminal benefits as provided for in the employee handbook.

 

DEFENDANT’S COUNTER CLAIM

ISSUE 2. Whether the Defendant is entitled to the counter -claim against the Claimant.

The counterclaim of the defendant for N16,308,869.83 is based on the same allegations that led to the dismissal of the claimant.  It is the finding of the panel that in some instances, the correct procedure for payment of insurance premium and stamp duties were correctly followed and applied in the Branch, as observed by the Auditors. However, they opted to pay same in cash to the tune of N6,963,125.00 as Insurance Premium and N3,656,750.00 as stamp Duties .This amounts to N10,619,875.00 out of the claimed N16,308,869.83.

No reason has been adduced for the claim of N41,088.95 described by the defendant/counterclaimant as furniture allowance for 2016/2017. The claimant cannot be justifiably asked to refund   furniture allowance legitimately paid to her before her dismissal.

Furthermore, the defendant has no evidence of misappropriation of N16,308,869.83 or any other sum against the claimant apart from the report of the disciplinary panel which found that there was no evidence to establish that the claimant directly benefitted from the financial infractions in the Branch office and even recommended termination instead of dismissal.

I also agree with the claimants counsel that the success of the claimants’ case in the circumstance and facts of this case, necessarily implies the failure of the defendant’s counter claim.

The counter- claim fails and is dismissed.

10.COURT ORDER

For the avoidance of doubt, it is held that the case of the claimant succeeds and the counterclaim of the defendant fails and it is hereby declared and ordered as follows;

  1. It is hereby declared that the dismissal of the claimant was contrary to the terms of employment and wrongful.
  2. It is hereby declared that the claimant, being subject to and having acted under a head, who is her superior in the Yola Branch of the Defendant as at the period in question, cannot be held liable for transactions without approval or authorization.
  3. It is hereby declared that the claimant cannot be held liable for the actions or activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the manager of the Bank there.
  4. That the dismissal of the claimant is hereby remitted to termination with effect from 15/3/2017, the date of the dismissal.
  5. The defendant is hereby ordered to calculate and pay to the claimant two months basic salary in lieu of notice
  6. The defendant is hereby ordered to calculate and pay to the claimant her terminal benefits, having served for 17 years and 4 months.
  7. The defendant is hereby ordered to pay to the claimant the sum of N100, 000. 00 as cost of this action.

This is the judgment of the court and it is entered accordingly.

 

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, YOLA.

 

 

 

 

 

 

 

 

 

 

 

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVIDION

HOLDEN AT YOLA

DATED THIS 2ND DAY OF DECEMBER 2019

BEFOREHIS LORDSHIP, HONORABLE JUSTICE K.D. DAMULAK

SUIT NO. NICN/YL/10/2018

BETWEEN

IYAMA P.GORDY                                ……………………………………….. CLAIMANT

AND

BANK OF AGRICULTURE LTD                                ……………………… DEFENDANT

 

JUDGMENT ORDER

The claimant took out a complaint on the 9/11/2018 against the defendant seeking the following reliefs:

  1. A declaration that the investigation and eventual dismissal of the claimant was done in bad faith, malicious, born out of sentiments and emotions as the claimant is not culpable after the said investigation.
  2. A declaration that the claimant being subject to a head, who is her superior in the Yola Branch of the Defendant as at the period in question, cannot be held liable for the actions or inactions of the head, who was her superior.
  3. A declaration that the claimant cannot be held liable for the actions or inactions of activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the manager of the Bank there.
  4. A declaration that the claimant is entitled to compensation from the defendant for her wrongful dismissal from office, the embarrassment caused as a result of the actions of the Defendant.
  5. General damages or compensation in the sum of N30, 000,000.00 (Thirty Million Naira) against the defendant in favour of the claimant for wrongly dismissing the claimant in bad faith and for no concrete reason, causing the claimant trauma, pains and other hardship.
  6. The cost of this action.

AND after hearing the evidence of both parties and the address of J. E. Okonkwo for the claimant and J. A. Udeagbala with M. S. Ibrahim for the defendant, it is held that the case of the claimant succeeds and it is hereby ordered as follows;

COURT ORDER

  1. It is hereby declared that the dismissal of the claimant was contrary to the terms of employment and wrongful.
  2. It is hereby declared that the claimant being subject to and having acted under a head, who is her superior in the Yola Branch of the Defendant as at the period in question, cannot be held liable for transactions without approval or authorization.
  3. It is hereby declared that the claimant cannot be held liable for the actions or activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the manager of the Bank there.
  4. That the dismissal of the claimant is hereby remitted to termination with effect from 15/3/2017, the date of the dismissal.
  5. The defendant is hereby ordered to calculate and pay to the claimant two months basic salary in lieu of notice
  6. The defendant is hereby ordered to calculate and pay to the claimant her terminal benefits, having served for 17 years and 4 months.
  7. The defendant is hereby ordered to pay to the claimant the sum of N100, 000. 00 as cost of this action.

                  GIVEN UNDER THE SEAL OF THE COURT AND THE HAND

                  OF THE HONOURABLE JUDGE,  HON.  JUSTICE K. D. DAMULAK

                  THIS 2ND DAY OF DECEMBER, 2019.

 

 

 

………………………………….

HON. JUSTICE K. D. DAMULAK

JUDGE

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