IN THE NATIONAL INDUSTRIAL OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 29th June, 2017 SUIT NO.:NICN/EN/104/2012
BETWEEN:
JOHNBULL KIM AGEMERIEN==========CLAIMANT
AND
FIRST BANK OF NIGERIA PLC=========DEFENDANT
REPRESENTATION:
- K. Ederi Esq. appeared with Miss E.U. Essiet Esq. for the Claimant.
I.A. Akaraiwe Esq. appeared with E.W. Oji Esq., N.C. Nwankwo Esq., E.C. Ezejiofor Esq. for the Defendant.
JUDGMENT
The Claimant in this suit approached this Honourable Court on 13th June, 2012 and took out a Complaint with a Statement of Claim both dated 11th day of June, 2012. The Claimant by his2ndAmended Statement of Claim dated 31st January, 2014, but filed on 3rd February, 2014 paragraph 27 thereof, he claims as follows against the defendant:
- Wherefore Claimant claims against the Defendant as follows:
- a)The sum of three hundred and fifty three thousand eight hundred and seventy one naira (N535,871) being the Claimant half salary and full allowances per month from January 2009 when it was stopped till when judgment is delivered.
- b)The sum of one hundred million (N100,000,000) being the damages suffered by Claimant from psychological torture, pains and humiliation consequentupon the arbitrary freezing without Court order of Claimant’s Salaries Account by the Defendant.
- c)The sum of eighteen million seven hundred and twenty seven thousand three hundred and sixty eight naira (N18,727,368) being Claimant’s gratuity for 33 years of meritorious services to Defendant.
- d)Full pension and other benefits accruable to Claimant till date.
The Claimant’s Complaint, Statement of Claim, Statement on oath and documents relied upon at trial were all duly filed. The Defendant also filed a Statement of Defence and subsequently amended same and filed on 10/01/2014 in which it counter-claimsagainst the claimant as follows:
COUNTER_CLAIM:
- The Defendant pleads paragraphs 1-19A of the Amended Statement of Defence against the Claimant for the purposes of this Counter-Claim.
- The Defendant asserts that the Claimant cannot profit from his own wrong by (i) granting unauthorized overdrafts, (ii) failing to recover them, (iii) refuse to honour disciplinary committee meetings, (iv) and request his half salary during suspension.
- The Defendant also asserts that all loans and overdrafts granted customers are taken from depositors funds and that failure to replace them is injurious to the depositor and destroys confidence in the Defendant bank and the economy. The Claimant is then under obligation to ensure that the unauthorized overdrafts are fully paid up, but remains in hiding instead from which he has instituted two actions against the bank-the present suit and the fundamental rights application aforesaid.
- The Defendant thus counter-claims against the Claimant the sum of N85, 000,000.00 (Eighty Five Million Naira) being unauthorized overdraft granted by him to himself, his brother Festus Agemerien and many others. All documents in proof of this are now pleaded.
- The Defendant also counter-claims against the Claimant for interest on the said sum at the rate of 21% per annum from the 25th day of April, 2008 until judgment is delivered and 10% from the date of judgment until the said sums are liquidated by the Defendant.
The Defendant also filed the necessary accompanying documents to the Statement of Defence and Counter-Claim.
The case then proceeded to hearing wherein the Claimant gave evidence on his own behalf and tendered documents admitted by the Court and marked as Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N, O, P, Q, R, S, T, T1, T2, T3, T4 andU. The Claimant was cross-examined by the learned Defendant’s counsel. Thereafter the Defendants called two witnesses, DW1 and DW2. The Defendant tendered through the witnesses, Exhibits D1, D2 sub 1 to sub 28, D3, D41 and D42. The two witnesses of the Defendant were cross examined by the learned Claimant’s counsel. Parties filed their respective final written addresses which they adopted. The learned Defendant’s counsel filed his final written address dated 5th December, 2016 on 9th December, 2016. The learned Claimant’s counsel filed his own final written address dated 13th December, 2016 on 15th December, 2016. The learned Defendant’s counsel did not file any reply on points of law.
In his final written address, the Defendant’s counsel formulated and argued the following issues for determination:
- Whether the Claimant was lawfully placed on suspension by the Defendant Bank?
- Whether the Claimant is entitled to the reliefs claimed against the Defendant Bank?
- Whether the Defendant is entitled to her counter-claim against the Claimant?
Arguing issue 1 learned counsel stated that the term “suspension” is defined in the case of University of Calabar vs Esiaga (1997) 4 NWLR (Pt. 502) p. 719 at pp. 739-740 to mean:
A temporary privation or deprivation, cessation or stoppage of or from privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. Although in most cases, suspension results in a disciplinary action, it is not invariably so…
That in the case of Longe vs FBN Plc (2010) 6 NWLR (Pt. 189) p. 1 at p. 60, the Supreme Court defined suspension as:
…a state affairs which exists while there is a contract in force between the employer and the employee, but there is neither work being done in pursuance of it nor remuneration paid…
He submitted that an employer has the power to discipline its employee. He referred to the case of Obaje vs Nigerian Airspace Management Agency (2013) LPELR-19958(CA) per Iyizoba, JCA, (P. 26, paras. A-C). He submitted further that discipline of an employee includes query, warning, suspension, termination and summary dismissal. That in SPDC Nigeria Ltd vs Emehuru (2006) LPELR-7728 (CA) p. 37, paras. A-C; (2007) 5 NWLR (Pt. 1027) thus:
Where an employee is placed on suspension, he is placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere nor as he desires until after closing hours. This was the exact disability on the respondent by the terms of “Exh. 2, the letter of suspension from duty date the 7th June, 1994”.
Furthermore, that in Miaphen vs UNIJOS Consultancy Ltd (2013) LPELR-21904, pp. 33-34, paras. G-C, it was held thus:
In my view, the appellant can only be entitled to general damages if his suspension by the respondent was unlawful and unwarranted. An employer has a right to suspend any of his or its staff if there exists reasonable ground to do so. In Udemah vs Nigerian Coal Corporation (1991) 3 NWLR (Pt. 180) p. 447 @ 486, this court held that the right to suspend an employee is available to an employer in order to effect proper investigation of allegations or during the process of a disciplinary action. The suspension of the appellant by the respondent, in my view, was in order and has legal basis, I agree, in toto with the learned trial judge when he held that the appellant was not entitled too the sum of N1.5m being general damages for the psychological trauma, depression and pains suffered as a result of the suspension. The claim of general damages was therefore rightly refused y the trial court.
That in the instant case, the claimant was suspected of dishonesty an misconduct contrary to the Employee Handbook (Exhibit D3) by granting overdraft facilities far above his limit without prior approval to ex-staff and customers amounting to the sum of N85,000,000 (Eighty Five Million Naira). That consequent upon this, the Claimant was placed on suspension to enable him pursue full recovery of the total amount involved. The pertinent question hereof is whether there exists reasonable ground for the Claimant’s suspension.
Learned counsel submitted that there exists reasonable ground for the suspension of the Claimant. It is not in dispute that the Claimant was suspended over allegation of granting overdraft facility far above his limit without prior approval to the tune of N85,000,000 (Eighty Five Million Naira). That the Claimant’s contention is that the said facilities were granted before he assumed the position of Branch Operations Manager of Bayo branch of the Defendant Bank. On the other hand, the Defendant contends that the said unauthorized facilities granted by the Claimant. DW1 led evidence to show that among the unauthorized facilities granted by the Claimant is one he granted to his brother Festus Agemerien who is the prime mover of Festus Grace Ventures. He referred to paragraph 9A of the DW1’s statement on oath.
Exhibit D1 shows the list of unauthorized facilities granted by the Claimant. Item 14 thereof shows the facility the Claimant granted to his brother through his company, Festage Grace Ventures.
Under cross-examination, DW1 stated that Festus Agemerien is the same person as Festus Abinuwa as his full name is Festus Abinuwa Agemerien.
The claimant as CW1 under cross-examination admitted that Festus Agemerien is his younger brother. He further stated that his brother Festus Abinuwa Agemerien does not have any account in First Bank in Bayo Branch.
Exhibits D2, 4,5,12,13,15 and 16 shows the various Cheques of Festus Grace Ventures issued to the said Festus Abinuwa who is the alter ego of Festage Grace Ventures. It is submitted that the Claimant is not a witness of truth having lied on oath that his brother does not maintain account with Bayo Branch of the Defendant Bank.
DW1 also testified that the Claimant had been indicted by the Defendant over expenditure of the sum of N6, 361, 344 (Six Million, Three Hundred and Sixty-one Thousand, Three Hundred and Forty-four Naira) on diesel from 1st April 2004 to 16th March 2005 and same earned him suspension and a warning. The said letter of Claimant’s initial suspension dated 29th March, 2005 is Exhibit U. He referred the Court to paragraphs 6 and 8 of DW1 statement on oath.
He submitted from the foregoing that there exists reasonable grounds for the Claimant’s suspension by the Defendant Bank, relying onMiahphen V. UNIJOS Consultancy Ltd. (supra).
Furthermore, that it is common knowledge that Employee Handbook in the banking sector are always incorporated in employees’ contracts and thus, terms contained therein are binding on both the employer and employee.
The Employee Handbook of the Defendant (Exhibit D3) is incontestably applicable to the Claimant despite his averment that the Employee Handbook isn’t binding on him having been employed before the year 2007, being the year the Employee Handbook came in operation. This seeming argument is untenable as it is clearly permissible in law for parties to review the terms of their agreement and any party who feels disadvantaged by a proposed term is entitled to resile from the agreement. In the instant case, an employee who does not accept the terms of the review of his contract of employment as contained in the Employee Handbook (Exhibit D3) ought to have resiled from the contract by resigning. Having adapted the review by maintaining his contract of employment, he is thereof estopped from asserting otherwise.
The Collective Agreement (Exhibit R) referred by the Claimant as regulating his employment with the Defendant is also untenable as Collective Agreements are incapable of creating a binding contract of employment and a breach of the terms contained therein can only be remedied by industrial action. He referred to the case of The Rector, Kwara State Polytechnic & Ors. V. Adelifa & Ors. (2006) LPELR-8248(CA)which reiterated the position held in UBN Ltd V. Edet (1993) 4 NWLR (PT. 287) 288 AT 298 on the nature of collective agreements as follows:
Such collective agreements are not intended or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in compliance with collective labour agreement is not justiciable. Its power of enforcement lies in some measures as I shall endeavor to show”.
Collective agreements are nevertheless only enforceable where they are incorporated or embodied in the conditions of a contract of service. He referred to the case of Abalogu V. SPDC Nigeria Limited (2003) LPELR-18(SC).
In the initial case, the Collective Agreement (Exhibit R) was not in any way incorporated into the Claimant’s contract of service and is therefore, with the greatest respect, of no moment, learned counsel submitted.
APPRBATION AND REPROBATION BY THE CLAIMANT:
Counsel continued that the Claimant cannot approbate and reprobate. He cannot purport to claim the benefit of ½ basicsalary and allowances provided under the Employee Handbook (Exhibit D3) in one breadth and in another breadth, purport to deny the applicability of same on him in respect of the termination of his employment.
The clause on Suspension in the Employee Handbook (Exhibit D3) provides thus:
SUSPENSION
An employee may be placed on suspension with pay (1/2 basic salary and full housing, utility, transport allowance and medical facilities). The period of suspension shall range from one month to six months as may be determined and such period shall be recognized in determining the length of employment with the bank.
Other conditions regarding suspension are:
- If any employee is suspected of dishonesty or any other serious misconduct, he/she will be suspended from duty for a period not exceeding six months during which investigations shall be concluded.
- If the investigations are not concluded within six months, the employee shall remain suspended until such a time that the investigations are concluded.
- An employee on suspension shall be required to report each working day for two hours to an official designated by the bank and shall sign to indicate compliance.
- If after investigations he/she is exonerated, he/she shall be recalled, the balance of his/her basic salary and any other entitlements shall be paid from the date of suspension. If however, he/she is found guilty he/she shall be dealt with in accordance with the bank’s disciplinary procedures.
- If the employee is suspected of a criminal offence by the Police, he/she may be suspended accordingly.
(The relevant portions above are underlined by counsel.)
FAIR HAIRING
Learned counsel contended that there is no onus on the Defendant to show that the Claimant was given fair-hearing on the said allegation. However, he submitted that the Claimant was given an opportunity to be heard having been invited by the Defendant’s Disciplinary Committee twice. The Claimant failed, refused and neglected to honour the said invitation as shown in letters of invitation dated 4th March, 2008 and 16th September, 2008, Exhibits D41 and D42.
He finally submitted on this point that the Claimant’s suspension by the Defendant is lawful and same was issued accordingly.
On issue two, which is whether the Claimant is entitled to the reliefs claimed against the Defendant Bank, counsel stated that in accordance with the opening phrase of paragraph 14.4 of the Employee Handbook (Exhibit D3) the Defendant does not contest that the Claimant was entitled to ½ basic salary and full housing, utility, transport allowance and medical facilities for the period of suspension. However, one of the conditions for the payment of ½ basic salary and allowances is that:
“An employee on suspension shall be required to report each working day for two hours to an official designated by the bank and shall sign to indicate compliance”
Learned counsel referred to paragraph 14.4 of the Employee Handbook (Exh. D3), item three thereof.
That it is not in dispute that the Defendant paid the Claimant ½ basic salary and the relevant allowances while the Claimant was in compliance with the conditions as stated in paragraph 14.4 of the Employee Handbook (Exhibit D3) by reporting to duty and signing to indicate compliance. When the Claimant stopped reporting to duty and signing as required of him, the Defendant of course ceased paying his ½ basic salary and relevant allowances, the Claimant having breached the provisions of paragraph 14.4 of the said Exhibit D3. The only reason the Claimant gave for his failure to continue reporting to duty was that after his arrest, detention and eventual release, he became afraid of reporting to duty and signing accordingly as he could not predict the subsequent action of the Defendant. Counsel referred to paragraph 18b and 18c of the Claimant’s Amended witness deposition on oath filed on the 3rd day of February, 2014. Counsel then submitted that this reason of the Claimant does not hold water as it is frivolous. That the Claimant under cross examination stated thus:
Question: Since your suspension, you have not made yourself available to the disciplinary mechanism of the bank to aid investigation?
Answer: It is not true. I have been available, the bank is in Sapele and I live in Sapele. I go to the Bank to do transaction.
Question: You said you were skeptical about going to the bank, true or false?
Answer: I have been going there.
That from the foregoing, it is clear that the Claimant has been going to the Defendant Bank to do other transactions but willfully neglected to officially report to duty and sign accordingly. Therefore, the allegation of his being afraid is unfounded and baseless. Counsel then submitted that the Claimant is in flagrant breach of the condition for his ½ pay remuneration during suspension and therefore not entitled to same.
That an employee under suspension is not entitled to emoluments save as may otherwise be contained in the contract of employment. Mindful to note that the whole purpose of discipline will be defeated by granting an erring employee a paid holiday for his act of misconduct. He referred to Longe vs FBN Pc, supra; Okunoren vs UAC Ltd (1958) 20 NLR 25; Bird vs British Celanese Ltd (1945) KB; Wall Work vs Fielding (1992) All ER 298 at 301. That in University of Calabar vs Juliet Koko Bassey (2008) LPELR-8553 (CA) p. 31 para F. the Court held thus:
When an employee is suspended, all his rights, privileges and powers attached to the employment cease until he or she is cleared of the allegation.
Counsel further submitted that an employee can only be entitled to general damages if his suspension was unlawful and unwarranted. A suspended employee is not entitled to damages even on grounds of psychological trauma, depression and pain suffered. Miaphen vs UNIJOS Consultancy Ltd, supra. That it is clear that the Claimant is still on suspension, his employment having not been determined. The Claimant contends that he is still a staff of the Defendant on this ground and counsel referred to paragraph 19 of the 2nd Amended Statement of Claim. It would therefore be preposterous for the Claimant to turn around and make claim for gratuity and full pension; that does not accord with reason, counsel submitted. That terminal benefits can only be associated with the termination of contract of employment and not with its subsistence.
On the 3rd issue, which is whether the Claimant is entitled to her counter-claim against the claimant, learned counsel sated that it is not in doubt that an employer is an agent of his principal, the employer, and thus conferred with some scope of authority to act on behalf of the principal in relation to third parties. That Agency is defined as:
A relationship between two persons, by agreement or otherwise, where one (the agent) may act on behalf of the other (the principal) and bind the principal by words or actions.
See Ukpanakh vs Ayaya (2010) LPELR-8590 (CA).
That also in Niger Progress Ltd vs N.E.Z. Corp. (1989) 3 NWLR (Pt. 107) 68 at 92, Nnamani JSC, held:
The relationship of principal and agent may arise in three ways:
- By agreement, whether contractual or not between principal and agent which may be express or implied from the conduct or situation of the parties.
- Retrospectively, by subsequent ratification by the principal of acts done on his behalf.
- By operation of law under the doctrine of agency of necessity and in certain other cases.
That an employee from the foregoing is certainly an agent of the employer as resolved in the case of NOHB vs Ajogwu (2000) 12 NWLR (Pt. 682) 626:-
Agency has been described as the relationship where one person confides the management of some affair, to be transacted on his account, to other party…
That on the scope of liability, an agent would sometimes bind himself as opposed to binding his principal. That in Ukpanah vs Ayaya, supra, it was held that:
The law recognizes that in some cirumstances, the agent can affect the principal’s legal position by certain acts which, though performed by the agent, are not really to be treated as the agent’s own acts but as acts of the principal. However, where the agent does not have authority to bind the principal in a contractual relationship with third parties, a trial court would be wrong to hold the supposed principal liable for the acts of the agent in the transaction.
He further referred to Edem vs Canon Balls Ltd (2005) 6 SC (Pt. 2) 16.
Thus, learned counsel continued, contrary to the popular notion of vicarious liability of a principal, an agent can be personally liable for the acts done without authority. The absence of an authority in respect of acts purportedly done by an agent on behalf of a principal is no agency. That surely, in such instances, agency is suspended except the very same act is ratified by the principal. He referred to Proctor and Gamble Company vs Global Soap and Detergents Industries and Anor (2012)LPELR-8014 (CA). That in the instant case, it has been admitted by both the Claimant and the Defendant in this suit that the Claimant has authority of the Defendant to grant maximum of N2,000,000(Two Million Naira) overdraft facilities. It is also in evidence that the Claimant granted overdraft facilities to the tune of N85,000,000(Eighty Five Million Naira) far above the ceiling of his authority. This the Defendant established by tendering a list of overdraft facilities granted by the Claimant which was admitted and marked as Exhibit S.
That from the foregoing presentation of facts, the Claimant is thus, personally liable in line with the extant authorities on this subject. The Defendant’s Counter-claim is also founded on the equitable principle of Ubi jus ibi remedium which posits that where there is a wrong there is a consequent remedy and there is an inherent power in every court of law to remedy any wrong. That an agent is liable to a principal for losses unreasonably or negligently incurred in the course of his employment. A principal has a right to be indemnified by an agent. This is as held in the case of Attorney-General of Lagos State vs Purification Techniques (Nig) Ltd (2003) LPELR-13108 (CA) which held that:
A right of indemnity is an incident of certain legal relationships. Such common legal relationships are in the area of agency or master/servant relationship. Rights of indemnity may also spring up from principles of equity.
From the above, the right to indemnity of a principal is a right incidental to the very existence of an agency relationship save same is expressly excluded by contract and there is no such exclusion by parties in this case. The loss to which the claimant is liable to indemnify the principal is the sum of N85,000,000(Eighty Five Million Naira) unauthorized facilities granted by the Claimant and has occasioned loss to the Defendant for the simple fact that since the said facilities were granted in absence of authority, the Claimant is thus liable to indemnify the Defendant for the loss occasioned by his act. It is also mindful to note that the Defendant does not print its own money but uses depositors’ funds in its custody to do business for profit, which it now pays as interest to depositors. It is against this background that it is desirous for the courts to uphold a claim for recovery of misappropriated funds of customers from the claimant.
