Margaret O. Ogbuagu -VS- First Bank of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: FRIDAY 22^ND NOVEMBER 2019

SUIT NO.NICN/EN/92/2015

BETWEEN:

MRS. MARGARET O. OGBUAGU………………………………CLAIMANT

AND

FIRST BANK OF NIG. LTD………………………………DEFENDANT

APPEARANCES:

C.E. ASOGWA – FOR THE CLAIMANT.
C.V. CHIJIOKE – HOLDING THE BRIEF OF I.A. AKARAIWE, FOR THE DEFENDANT.

JUDGMENT

INTRODUCTION

Complaint commenced this suit on 24^th August 2015. The complaint was accompanied with Statement of Facts wrongly called “Statement of Claim”. The reliefs claimed in paragraph 37 of the Statement of Facts are set out accordingly:

A declaration that the purported summary dismissal of the Claimant from her employment by the Defendant vide Defendant’s letter dated 27^th March 2015 is wrongful and a breach of the Claimant’s contract of employment with the Defendant.
The sum of N100,000,000 (One Hundred Million Naira) general damages for wrongful dismissal and/or breach of contract of employment.

The defendant reacted to the above by filing its Amended Statement of Defence on 15^th June 2016, which was deemed properly filed and served the same day. The claimant filed Reply to the Statement of Defence on 30^th November 2015, which was deemed as properly filed 26^th April 2016. That is all about the important processes filed for now. The second Amended Statement of Defence filed by the defendant on 7^th December 2016 was refused on 27^th April 2017 thus, leaving the Amended Statement of Defence filed 15^th June 2016 and deemed as properly filed and served the same day, as the extant Amended Statement of Defence. Let me proceed to summarise the pleadings in order to give a vivid picture of the cases made by the parties in their pleadings.

SUMMARY OF THE PLEDAINGS

Statement of Facts

The claimant pleaded that, she was a staff of the First Bank, having been employed by a letter dated 24/3/86 and; that, she rose to the position of Assistant Banking Officer before she was summarily dismissed in March 2015. She claimed she had worked diligently without query until the incident that led to her dismissal. The claimant pleaded that, apart from her regular schedule as Head Teller at 2^nd Okpara Avenue Branch, she also doubled occasionally, as Call-Over Officer and that, it was while she acted as Call-Over Officer on 24/3/2014, on the transactions involving N7,836,000.00 that this problem occurred. She pleaded that, another officer, Mrs. Taiwo Abimbola-Ojo’s ID was used in perpetrating the fraud. The claimant pleaded that, because, the fraud began at the weekend and was totally completed on Sunday, it was impossible to call over the transaction the next working day: Monday, to detect the fraud and prevent the loss, which had occurred over the weekend.

The claimant pleaded that, when the fraud was detected, the staff, whose ID was used to perpetrate the fraud, was suspended and the matter reported to the police, who arrested some of the beneficiaries, and they revealed some of the conspirators, who were all staff. The claimant pleaded further that, these conspirators were arrested and they confessed to the crime, while the police never picked up the claimant, as there was no implicative evidence against her. The claimant pleaded that, at this point, the officer whose ID was used, was recalled, while all along, she was doing her duty. She pleaded that, long after the incident, she however she received query on 25^th November 2014 along with another officer, accusing them of being responsible for the fraud and that, they should explain why they did not draw attention to these transactions during their schedules as call over officers. She said she answered the query, that she did not escalate the transactions because, she saw them as normal, having been approved by the Branch Service Manager [BSM], as was the standard practice over time and that normally, she would no longer have access to these documents, because, once they passed through the BSM, they are posted to different staff. The claimant said, until 5^th January 2015, she continued with her duties, without hindrance but that, on that date, she discovered that, when all other staff received their upfront allowances, hers and those of the other person issued the said queries, along with the BSM, were not paid.

She pleaded that, after the BSM made contact, hers were paid, leaving theirs. She said she was later invited, along with many others, by a mail on 13/02/2015 to appear before a Disciplinary Committee at the Head Office on 17/02/2015 while the BSM was later invited via phone. She said she appeared before the Committee and maintained her innocence. She said she was later summarily dismissed on 27/3//2015 without stating any reason but on enquiry, she discovered that, she was dismissed for the fraud in issue. The claimant said the Disciplinary Committee did not communicate her of her guilt. The claimant pleaded that, whereas, at the time in question, the Staff Handbook only provided warning letter or compulsory resignation for negligence or improper performance of duty. She pleaded that, assuming that she was found guilty of negligence; she could only have been issued warning later and not summary dismissal. The claimant pleaded that; the defendant changed this rule later, dismissal for failure to perform or negligent performance of call over or negligence. The claimant pleaded that, as at the time of her dismissal, she was owed the sum of N4,957,933.33. She pleaded that, the dismissal has tarnished her image and subjected her to psychological trauma and destroyed her more than 29 years of service to the Bank. She then claimed the reliefs pleaded thereof. That ends the Statement of Facts. I move to the Amended Statement of Defence.

Amended Statement of Defence

The defendant admits paragraphs 1, 2, 7, 8, 9, 11, 12, 18, 19, 20, 21, and 22 of the claimant’s. In reaction to paragraphs 3, 5 and 6 of the claimant’s, the defendant pleaded that, it observed due procedure in dismissing the claimant for unfaithfulness in the discharge of her duty. The defendant reacted to paragraph 10 of the claimant’s, by saying diligence on her part would have revealed the fraud in issue. The defendant reacted to paragraphs 13, 15 and 17 of the claimant’s, by saying, she failed to detect the fraud because, she was in concert with the fraudsters and that; the claimant was queried for deceiving the management by signing the call over certificate, when in deed, she didn’t call over the transaction in issue. The defendant pleaded too, against paragraph 23 of the claimant’s that, she was negligent in the performance of her duty and that; the report of the Chief Internal Auditor indicted her in the fraud. The defendant thereafter denies and put the claimant to the strictest proof of paragraphs 24-31 of the claimant’s and admitted paragraph 24 to the extent that the claimant was dismissed.

The defendant pleaded too, in respect of paragraphs 25 and 26 of the claimant’s that, it gave the claimant fair hearing and that, the dismissal was in accordance with its handbook, while letter dated 27^th March 2015 sufficiently communicated the adverse verdict of the Disciplinary Committee to her. In reaction to paragraphs 27-29, the defendant pleaded that, contrary to the assertion of the claimant, the memo referred to was issued to clarify and re-emphasize the importance of call over duty. The defendant reacted to paragraphs 31-33 of the claimant’s, by saying a dismissed staff is not entitled to further financial benefits and that, paragraphs 34 and 37 of the claimant’s were contrary to the contract and conditions of service of the claimant, as contained in the handbook. In answer to paragraph 35 and 36 of the claimant’s, the defendant pleaded that, it had a duty to protect its customers and cannot spare any staff, who was negligent on customers’ deposits and went on to give the particulars of the claimant’s negligence. Finally, the defendant says the claimant is not entitled to the claims contained in her paragraphs 37(a) & (b). Thus, ended the Statement of Defence. I move to the Reply of the claimant.

Reply Pleadings by the Claimant

The claimant pleaded in reaction to the Statement of Defence that contrary to the averments of the defendant in its paragraphs 4 and 8, she was consistently faithful in the discharge of her duty to the defendant and that, she was never negligent nor colluded with anybody to defraud the defendant and that; the defendant is just giving her bad name to justify the wrongful dismissal. The claimant went further to react to paragraph 12 of the defendant’s and deny that the report of the Chief Internal Auditor and the Disciplinary Committee Report were brought to her attention/knowledge. The claimant thereafter denied and put the defendant to the strictest proof of the averments made in its paragraph 19; and ended the Reply. Having ended with the summary of the pleadings, I move to hearing and trial proceedings.

Proceedings before the Court

Subsequently, trial commenced before my learned brother Hon. Justice W. Abali, of blessed memory on 26^th April 2016 and was concluded on 15^th June 2016 and the matter adjourned to 17^th October 2016 for adoption of final written addresses. This was the position until 16^th October 2017 when Hon. Justice I.G. Nweneka took over the matter and referred it to the PNICN for directive, in view of the fact that, the matter was set down for adoption by the previous judge. Meanwhile, in the interval, Abali J. died and the situation remained stagnant till 8^th January 2019 when I first sat over the matter.

Trial commenced de novo before me on 25^th February 2019 with the claimant testifying as CW1. CW1 was sworn on the Holy Bible and adopted her two written depositions. CW1 tendered 16 documents without opposition and was cross-examined thereafter. The case of the claimant was closed without re-examination on that note and; the case was adjourned to 5^th and 6^th March 2019 for defence. Defence opened on 5^th March 2019, as adjourned and DW1: Taiwo Abimbola, testified, after fulfilling the initial preliminaries, by adopting the written deposition made 15^th June 2016. DW1 tendered 6 documents without opposition and was cross-examined the same date without re-examination. DW1 was discharged and the matter adjourned to 6^th March for continuation.

The matter came up on 6^th March 2019 as adjourned. DW2: Oyinbo Uchay testified, after complying with the initial preliminaries, by adopting the written deposition made 19^th November 2015 and; ended the testimony without tendering any document. The case proceeded to cross-examination immediately. The cross-examination was completed without re-examination on the same date. Thereafter, the defence was closed and the case adjourned to 8^th May 2019 for adoption of the final written addresses. The situation remained like this till 18^th June 2019 when the learned counsel for the defendant moved an application for extension of time to file and deem as properly filed and served the defendant’s final written address and, it was granted without opposition. The matter was further adjourned to 23^rd September 2019 for adoption of final written addresses.

Again, the situation remained stagnant till 13^th November 2019 when the learned counsel to the claimant moved the application for extension of time to file and deem as properly filed and served, the claimant’s final written address filed out of time. The application was granted without objection. Thereafter, the case proceeded to adoption of the final written addresses. The learned counsel to each party adopted the final written address filed on behalf of each party and; the case was adjourned to 22^nd November 2019 for judgment. I have done with the trajectory of the case till inception to the point of adoption of the final written addresses of the parties. The next logical thing is, to summarise the final written addresses of the parties.

SUMMARY OF THE FINAL WRITTEN ADDRESSES

Written Address of the Defendant

IKEAZOR AJOVI AKARAIWE franked the defendant’s Final Written Address. The learned counsel formulated the following issues:

That the Claimant’s dismissal in the circumstances was appropriate and in conformity with Exhibits A10/DA, being the Defendant’s Employee Handbook;
That facts which were not pleaded cannot be said to constitute material inconsistency;
That the Claimant is not entitled to damages or any other entitlement, and if at all entitled is entitled to one month’s pay in lieu of notice.

Arguing issue 1, the learned counsel referred to section 11(1) & (5) of the Labour Act, as empowering employers to dismiss employees without notice; and submitted that, the Supreme Court has upheld the right of employers to terminate without notice or reason in cases of gross misconducts. The learned counsel relied on Nwobosi v. ACB (1998) LPELR-SC 91/1991 and Olanrewaju v. Afriban Plc (2001) LPELR-SC 109/96. The learned counsel also cited Article 14.5 of the Handbook [Exhibit A10/D5], as permitting the defendant to dismiss on grounds of negligence, fraud, and dishonesty. The learned counsel submitted that, Exhibit A10/D5 is the contract between the parties and that; the claimant was negligent in detecting the fraud in issue. The learned counsel referred to Exhibit 7 and further submitted that, the claimant deceived the defendant by signing the call-over certificate without actually calling over the transaction, leading to the fraud in issue. The learned counsel submitted that, it was irrelevant whether the fraud took place on Friday and the call-over done on Monday, being the next working day and; that, what matters was, that, the claimant failed to conduct the call-over at the appointed time; and submitted that because, the claimant was unfaithful in her duty that Monday, she was not likely to be faithful thereafter.

The learned counsel submitted that, the claimant’s excuse that pressure of work was responsible for her negligence shows admission of negligence on her part and; at the same time, shows that, she is unsuitable for high pressure job, like banking job. The learned counsel urged the Court to take judicial notice from this that, banking job is one with “…tight workload and job pressure…” The learned counsel also urged the Court to invoke section 122 of the Evidence Act to take judicial notice of the prevalence of bank frauds in Nigeria. The learned counsel argued that, the claimant was invited to the Disciplinary Committee of the defendant and she attended and was given fair hearing; and that, based on the decision of the Committee, the claimant was dismissed in accordance with Article 14.5 of the Handbook. The learned counsel argued that, the dismissal letter constitutes sufficient notice of the outcome of the Disciplinary Committee’s hearing. The learned counsel concluded on issue 1 by submitting that, the dismissal was appropriate and in accordance with the Handbook. The learned counsel moved to issue 2.

Under issue 2, the learned counsel submitted that, whether or not, there was contradiction in the evidence of DW1 between her previous testimony and the present, on the fact relating to, whether the fraud in issue took place online, is immaterial because, this was not pleaded by both party and neither is it an issue before the Court and didn’t have impact on the narrow issue of the claimant’s failure to conduct proper call-over, which the claimant admitted in paragraph 2 of Exhibit A15 and for which, she was dismissed. The learned counsel cited Olubodun v. Lawal (2008) 17 NWLR (Pt. 1115) 1 and a host of other cases on the law that, evidence led on unpleaded facts goes to no issue. The learned counsel also argued that, there was no contradiction established in the evidence of DW2 in the previous and present testimony when he said in the previous that, “yes, what I said was not correct” on 31/6/2016 and on 6/3/2019 that, “I cannot speak to the fact that she was in charge on that particular day. She was in charge during that period” and “I cannot speak to whether she generated the call-over journal or not”. The learned counsel submitted that, the statements all amount to the same thing, as the DW2 did not testify later that the said paragraphs of his written deposition, which he agreed were not correct in the previous testimony, were now correct. The learned counsel submitted that, whatever reason made DW2 to resile from paragraphs 5 and 7 of his written depositions, he is a witness of truth because, it was his integrity that made him to retract from the said paragraphs of his written depositions.

The learned counsel argued that, what is in issue is, not whether the claimant was in charge of call-over distribution but whether, she performed the call-over duty. The learned counsel argued further that, parties did not even plead the evidence in issue and; as such, they go to no issue. The learned counsel submitted that, although, the underlined portion of the 7^th paragraph was however pleaded in paragraph 6 of the Amended Statement of Defence dated 14/06/2016. The learned counsel further cited Olubodun v. Lawal (supra) and others previously cited cases, on unpleaded facts. The learned counsel finally urged the Court to hold that, there is no material contradiction established and to dismiss the case. The learned counsel thereafter moved to issue 3.

On issue 3, which relates to damages, the learned counsel cited Obanye v. Union Bank Plc (2018) 17 NWLR 357 SC and others on damages in master-servant relations and submitted that, the courts have held that, in instances where wrongful termination is proved, which is not proved here, the claimant would only be entitled to money for the length of notice he ought to have received before the termination and no more; and that, in this case, the claimant is only entitled to one month salary in lieu of notice. The learned counsel cited Exhibit A11, which he said, is the in-house memo of the defendant tendered by the claimant and which laments to the increase in bank frauds and failure of call-over officers to do their works diligently and urged the Court, on the basis of this memo, to dismiss the claimant’s case in the interest of justice. That ends the defendant’s written address. I move to that of the claimant.

Claimant’s Final Written Address

C.E. ASOGWA franked the Claimant’s Final Written Address. The learned counsel formulated the following issues:

Whether the Claimant was lawfully dismissed from her employment by the Defendant.
Whether the Claimant is entitled to judgement upon the reliefs claimed in the instant proceedings.

Under issue 1, the learned counsel submitted that because, the online transactions in question took place in the evening of Saturday and the call-over was on Monday, it was impossible to detect the fraud or prevent the loss. The learned counsel submitted that, it is common ground that the transaction in question was a ‘dry-posted transaction’, meaning that, it had no physical voucher, because they were done online. The learned counsel also argued that, they were done via the User ID of the BSM, the highest authority that verifies transactions initiated by other staff and referred to paragraphs 9 and 10 of the Statement of Claim, paragraph 19(f) of the Amended Statement of Defence, the written deposition of the claimant adopted in Court on 25/2/2019, the cross-examination of CW1 on that date, the written deposition of DW1 and DW2 and their cross-examinations on 5/3/2019 and 6/3/2019 respectively, the Report of the Internal Auditor dated 7/1/2015 and the Report of the Disciplinary Committee. The learned counsel submitted that, the police investigation did not unearth anything against the claimant but against people connected to DW1.

The learned counsel submitted that, while it is not in doubt that an employer may dismiss for gross misconduct without notice, this is only applicable where there is no condition of service. The learned counsel is of the view that, the conditions of service provides the procedure for dismissal and the grounds, and that; parties are bound by the contract they made and bound therefore, to abide the conditions of service. The learned counsel cited Ogundepo v. Olumesan (2012) ALL FWLR (Pt. 609) 1136; UTC Nigeria Ltd v. Peters (2009) LPECR-8426 (CA) and other authorities. The learned counsel submitted that, in the instant case, Exhibit A10 and D4, are the conditions of service in issue but that, Exhibit D4 is a latter version of A10. The learned counsel submitted that, the crux of the claimant’s case is that, she was not negligent and that, even if she was; the punishment prescribed is warning letter or compulsory resignation and not summary dismissal. The learned counsel submitted that, by the query issued the claimant [Exhibit 6], it is clear that, the crux was “ineffective call-over exercise” which falls under negligence/improper performance, in that, the gist of the query was that she failed to escalate the dry-posted transactions, as exceptions during the call-over.

The learned counsel submitted that, the claimant responded by saying, she did not see the dry-posted transactions as exceptions because, they were posted by the BSM, who only modifies or verifies transactions posted by other staff and that, this has been the practice. The learned counsel submitted further that, the claimant went further to say, vouchers verified by the BSM were always enclosed in the respective partitions of the initiators and shared amongst different staff. The learned counsel submitted that, the implication of this was that, there was no necessity to escalate or report to higher authority since this came from the BSM, the very highest authority in the Branch. The learned counsel submitted that, these pieces of evidence by the claimant were corroborated by DW2 under cross-examination on 6/3/2019.

The learned counsel was of the view too, that, the DW1 also admitted under cross-examination on 5/3/2019 that, the call-over in question vide Exhibit A, was posted to her and the Chief Internal Auditor through mail after it was completed. The learned counsel argued that, there is also uncontradicted evidence that, the Bank did not raise any question about the transactions until the customer came to the bank to complain. The learned counsel said the claimant had testified that, the way to call-over dry-posted transactions is to verify that, the entries in the journal were correct, and which was exactly what she did in this case. The learned submitted that, the parties, through their witnesses agreed that, what were given to the claimant for the call-over in issue, were just the transaction journal and the call-over certificate agree with it. The learned counsel also submitted that, there was no evidence placed before the Court to show that, dry-posted transactions are exceptions to be escalated. The learned counsel also argued that, there is no evidence that any physical voucher was attached to the transactions, which the claimant failed to use.

The learned counsel submitted that, rather, the evidence on record supports the view that, the transactions were regular and proper on their faces, and that as such, no diligence could have unearthed the fraud in question. The learned counsel submitted that, the claimant therefore signed the call-over certificate in the usual practice with regard to dry-posted transactions. The learned counsel argued that, when question was put to the DW1 on 5/3/2019 [BSM] under cross-examination on whether, with the documents made available to the claimant, she could heave detected the fraud; she evaded it and said she did not know. On this basis, the learned counsel urged the Court to hold that, evidence of the claimant herein remained unchallenged and cited Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562.

The learned counsel further submitted that, the assertion of DW2 under cross-examination that, there is a document known as Standard Operating Procedure, is a piece of evidence that goes to no issue because, it was not pleaded nor tendered thus, warranting the invocation of section 167 of the Evidence Act. The learned counsel submitted that, however, on the contrary, there is ample evidence at page 3 of the report of the Chief Internal Auditor dated 7/01/2015 that “since it is a super password the transaction did not require further verification” and that, it was the super password of the BSM that was used in carrying out the fraud. The learned counsel deduced from this that, the claimant was diligent in the performance of her duty and that; no amount of diligence on her side could have prevented or exposed the fraud on the dry-posted transactions. The learned counsel therefore submitted that, the onus shifted to the defendant to prove otherwise, which it failed to do. The learned counsel cited the unreported Suit No. NICN/EN/86/2015 – Nwachukwu v. FBL [Delivered 1/3/2018], which, he said, is a sister case to this. The learned counsel thereafter moved to Exhibit 6.

The learned counsel was of the view that, the inference reached by the learned counsel on the other side, on the Exhibit 6 is unfounded and submitted that, the mere fact that, the claimant stated at the end of her answer to the query that, she undertook to do her call-over functions “more effectively” could not derogate from the fact that, she denied committing the crime. The learned counsel thereafter said that, there are palpable conflicts in the evidence of DW1 and DW2 on the culpability of the claimant [without giving the details]; and that, DW2, under cross-examination admitted that, he had no personal knowledge of the circumstances that warranted the dismissal of the claimant. The learned counsel submitted that, DW1’s evidence is contradictory on whether or not there was physical voucher and whether the transaction was online. The learned counsel submitted that, a witness who testified falsely on an issue, which is within his knowledge, is not worthy of belief and cited Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505.

The learned counsel submitted that, more so, DW1 had testified under cross-examination on 5/3/2019 that, with the documents available to the claimant, it might not have been possible for her to detect the fraud. The learned counsel submitted that, the essence of the call-over exercise is not to detect fraud but, to see if the normal banking procedures were followed and that; where a transaction appeared proper on the face of the document presented, there is no way fraud could be detected through call-over; and that, it is only when the owner of the account came to complain of the illegal deductions in his account that the fraud would be detected, just like what happened in the instant case. The learned counsel submitted that, the evidence of the claimant, DW1 and DW2 agreed that, there is what is known as dry-posted transaction and that; it is not accompanied with physical vouchers. The learned counsel submitted that, the contention of the learned counsel to the defence that, any transaction without a voucher is an exception is misconceived because; the evidence before the Court does not support it neither do the pleadings.

The learned counsel also submitted that, there is no report that indicted the claimant contrary to the submission of the defence counsel; and that therefore, the claimant was not negligent to warrant her summary dismissal. The learned counsel submitted that, the two versions of the Handbook tendered showed that, the punishment for negligent, improper and careless performance was not summary dismissal but, warning letter or compulsory retirement, depending on the gravity. The learned counsel referred to Article 11.5, item 35, p. 48 of Exhibit A10 and Article 14.5, item 34, p. 59 of Exhibit D4 of the two versions of the Handbook. The learned counsel submitted that, the defendant is bound by the contract between it and the claimant, as contained in the Handbook; and cannot go beyond it to impose punishment alien to the prescribed ones. The learned counsel cited Katto v. CBN (1999) 6 NWLR (Pt. 607) 309 and Nwachukwu v. FBL [supra], 13-17. The learned counsel also submitted that, the construction placed on Article 14.5 of Exhibit A10 that, it gave the defendant unbridled latitude to determine what amounts to gross misconduct, is misconceived, in that, the acts therein specified, which are in tandem with those specified in Exhibit D4, are acts that depict a total and willful disregard of lawful instructions or essential condition of the contract, which naturally terminate the contract between the parties, and as such, acts of gross misconduct must be interpreted ejusdem generis the specific acts mentioned in the preceding items. On this, the learned counsel cited Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt.) 544 and another case.

The learned counsel submitted that, it is in relation to the above principle that the Handbook went further to provide some specific acts, which were not to be treated as gross-misconducts, by prescribing them with specific punishments. The learned counsel was of the view that, amongst these types of offences, were improper/negligent performance, under which improper call-over exercise falls; and as such, the defendant was bound to treat improper call-over exercise with the prescribed punishment of warning letter or compulsory retirement. The learned counsel submitted further, on this, that, the subsequent Memo [Exhibit A11] issued after the incident in issue, stating that, improper call-over exercise, a species of negligent/improper performance of duty, would henceforth attract summary dismissal, is a pointer to the fact that, the punishment for the offence was not originally summary dismissal but, warning letter or compulsory retirement. The learned counsel submitted that, this Memo estops the defendant from contending the contrary, by virtue of section 169 of the Evidence Act. The learned counsel moved to the issue of whether an employer is bound to give reason for dismissal.

The learned counsel conceded that, an employer is not bound to give reason for termination, where there is no stipulation of the contract to the contrary but that, the issue here, is one of summary dismissal. The learned counsel submitted that, an employer could only summarily dismiss, where act of gross misconduct is established. The learned counsel submitted that, this is more so, where the Handbook had stated the offences for which the claimant could be summarily dismissed and that; the defendant is therefore bound by the conditions prescribed in the Handbook. The learned counsel cited Obanye v. Union Bank Plc (2018) 17 NWLR (Pt. not stated] 357. The learned counsel argued that, since it has been established that, the reason for the dismissal of the claimant is improper performance of call-over duty, on which the defendant could not summarily dismiss, it follows that, the dismissal was wrongful and in contravention of the Handbook. The learned counsel cited UTC Nigeria Ltd v. Peters (2009) LPELR-842, 19. The learned counsel submitted that, at whatever point an employer gives reason for dismissal, even though, not obliged, it is bound to justify such disputed reason; and cited NEPA v. Adeyemi (2007) 3 NWLR (Pt. 104) 315 at 331-33 [sic], H-B and UTC Nig. Ltd v. Peters [supra]. The learned counsel submitted that therefore, the dismissal of the claimant, based on gross misconduct, is wrongful and in contravention of the Handbook. The learned counsel thereafter moved to the issue of fair hearing.

On the issue of fair hearing, the learned counsel submitted that, the failure of the defendant to communicate the claimant with the adverse report of the Disciplinary Committee before the dismissal and the failure to consider the appeal of the claimant against her dismissal, as provided in the Handbook constitute breach of her right to fair hearing; and that, these made the dismissal liable to be set aside for being wrongful. Thereafter, the learned counsel moved to his issue 2.

On issue 2, which deals with entitlement to the reliefs claimed, the learned counsel submitted that, where an employee is wrongfully removed, either by summary dismissal or by failure to give requisite notice, the remedy is damages; and cited Baker v. Denkero Ashanti Mining Corporation Ltd (1903) 20 TLR 37 and another case. The learned counsel submitted that, the claimant, having been wrongfully dismissed, is entitled to the reliefs claimed. In conclusion, the learned counsel urged the Court to enter judgment in favour of the claimant. Thus, ended the written address of the claimant in reaction to that of the defendant. There being no reply address filed by the defendant, I move to give my decision.

In giving my decision, I wish to state that, I have very carefully read all the processes in the file and digested the contents. I have taken keen cognisance of the very relevant ones, like the pleadings of the parties, the written depositions of witnesses adopted in Court, the cross-examinations of these witnesses and the final written addresses. I have also observed the demeanours of the witnesses. I have equally taken time to consult the focal authorities [statutory and case law] cited by either side and have endeavored to do my personal research. Off to my decision I go.

COURT’S DECISION

I adopt the two issues formulated by the learned counsel to the claimant, though, slightly modified. They are more concise and adequately capture the width of issues engendered by the case than, the windy and prolix issues formulated by the learned counsel to the defendant. I take the two seriatim.

ISSUE 1: WHETHER THE DEFENDANT LAWFULLY DISMISSED THE CLAIMANT?

Two questions must be answered under this issue. They are: (1) Whether any case of culpability is established against the claimant; and (2) If, what is the appropriate punishment? I start my inquiry into the first question under this issue by reproduction of the pertinent parts of Exhibit D2. At page 3, paragraphs 5 & 6; page 5, third tabulation, item 1, column 1 thereof; I found the following:

“The Head of Local Services (HLS), Godwin Nwachukwu generated the transaction journal for call over exercise on the next working day (Monday, 24/03/2014) by 7.49am and the fraudulent transactions showed in the journal used for call over. However, the fraud was not detected during call over until Stallion Group Ltd made a complaint through their RM on the 7^th April, 2014.

(1) Mrs. Taiwo Abimbola-Ojo (AM – Sn017144) – BSM, 2^nd Okpara Avenue Branch

Her password was used to post the transactions. Since it is super password, the transactions did not require further verification.

CONTROL VIOLATIONS: The BSM failed to always examine her PC, as regularly advised to all staff through various e-messages. REMEDIAL ACTIONS: As directed through various emails, staff should develop the habit of always checking their PCs on daily basis before log into it.
CONTROL VIOLATIONS: The branch management allowed processors to use Finacle after cut-off time of 7pm, though there was no justification for it. REMEDIAL ACTIONS: There should be close monitoring of staff that needs to use Finacle after the cut-off time and those that leves [sic] the branch late.
CONTROL VIOLATIONS: Ineffective call over exercise as the officer responsible did not query the absence of vouchers for the transactions. REMEDIAL ACTIONS: Diligence on the part of staff during call over exercise. Staff should treat the exercise as a part of their core duties.
CONTROL VIOLATION: Lack of timely review of the account by the RM and the customer, as the account was used mostly to collect sales proceeds except for few debits (tax payments) that were made into it on few occasions. REMEDIAL ACTIONS: Withdrawals by the beneficiaries would have been stopped if the RM or the customer had observed the unusual debits into the account on time and sought confirmation from customer.”

What could be deduced, by a careful perusal of the above, is that, there is no basis for saying, the claimant did not query the absence of vouchers before signing the call-over certificate, when in actual fact, the Chief Auditor’s Report [Exhibit D2] itself admitted that, dry-posted transactions have no vouchers. The admission of the fact that, dry-posted transactions do not carry vouchers, is contained in column 2 of the table titled “Control Violations that Resulted to the Fraud” at Control Breached, Response by Staff, and Comment at page 4-5 of the Chief Auditor’s Report thus:

“Control Breached: She signed the callover [sic] certificate attesting that she sighted the vouchers even though the transactions were dry-posted. Response by Staff: Dry posting is transaction posted without evidence of voucher. The call over I normally did on my BSM’s voucher is only signed call-over certificate because my BSM partition does not carry physical voucher. Her print-out [sic] shows only modified or verified transactions and that is why I do not normally tick any print out but to sign the call-over certificate and submit it for onward transmission to the Internal Audit. Comment: Against the claim made by Margaret, she signed the call over certificate (Appendix “A”) indicating that she sighted the transaction vouchers, though the transactions were dry-posted.”

What could be queried, admittedly, is that, why did the claimant sign the call-over certificate, which indicated there were vouchers, when in actual fact, vouchers were not required and were not in actual fact available. I will come to this anon. It is also clear from the Chief Auditor’s Report that, the claimant could not have done anything by exercise of diligence within her powers, to prevent the fraud. This is very evident from the third table of the Chief Auditor’s Report earlier reproduced above. Columns 1, 2 and 4 of the said Chief Auditor’s Report clearly indicated that, the only people who could have done anything to prevent the fraud were the BSM, Branch Management, which allows the use of Finacle after 7pm and the RM, especially the RM, who could have detected attempts to withdraw from the accounts and put a stop to the completion of the fraud. Now, to the issue of signing the call-over certificate, when it indicated it had vouchers and it did not, in actual fact, have.

One thing I observed on the call-over certificate [Exhibit D1; also A8] is that, on top of the certificate, at the column tagged Processor’s Signature and Date, I found the name Taiwo Abimbola-ojo [sic] and 17144 written. The handwriting therein, is quite different from that of the claimant at her column on the certificate. What I found too, is that, the columns, where the number of vouchers were entered and the amount involved, the handwriting therein looks so much like that by which Taiwo Abimbola-Ojo was written. I wonder why the Chief Internal Auditor did not observe these very obvious signs. Throughout this case, there has only been one Taiwo Abimbola-Ojo mentioned and she is the BSM. The implication is that, she was the one who entered the data in these columns and not the claimant or somebody else, other than the claimant. But that does not, for now, still absolve the claimant of blame in signing the certificate when no such alleged vouchers were attached. But I found stated on page 3, paragraph 5 of the Chief Auditor’s Report, as earlier reproduced above that, the transactions in issue showed in the journal generated for and used to carry out the call-over. Another officer generated this journal and not the claimant. And the Chief Auditor’s Report attested that, the data used in carrying out the call-over were contained in this journal.

Now, the claimant’s column on the Chief Auditor’s Report, at page 3, column 2, at Response by Staff, the claimant explained that, the call-over she usually did on the vouchers of her BSM is signed call-over because, her BSM’s partition did not carry physical vouchers; and that, as a result, she didn’t use to sign any print out but signed the call-over certificate and submit it for onward transmission to Internal Audit. Throughout the trial, it was not established by any shred of evidence that, this was not the usual practice on transactions carried out on the BSM’s User ID. In fact, the Chief Auditor’s Report corroborated this, at page 3, paragraph 6, when it sated that “Her password was used to post the transactions. Since it is a super password, the transactions did not require further verification.” The password referred to, is the BSM’s password.

It is also clear from the answer of the claimant under reference, as contained in the Chief Auditor’s Report that, though, dry-posted transactions done with the BSM’s password did not carry physical vouchers, nonetheless, the concept of voucher is retained in the improvised concept of non-physical voucher. I found this corroborated in Exhibits A9 and A15, where the total number of credit receipts [CR] were 8 and debit or drawal receipts were 2, which corresponded with the entries contained in the voucher items of Exhibit D1 [Call-Over Certificate]. I cannot see the basis of the Chief Internal Auditor’s quarrel with the mention of vouchers in the call-over certificate and his faulting the claimant for not calling for physical voucher, which he had admitted, were not necessary in dry-posted transactions done with super password of the BSM. This is more so, when the said Report had admitted that, the data used for the call-over were as contained in the journal generated for the exercise.

I am even surprised that, the Chief Internal Auditor ignored the burden shifted to his office, when the claimant said these dry-posted call-over certificates were sent to his office for further actions. He kept mute on this. Why did the Internal Audit in the Branch, which is under the Chief Internal Auditor, not ask for the physical vouchers on the dry-posted transactions done with the BSM’s super passwords, if it was the practice that it should have been accompanied by physical vouchers, or that, such should have been requested, or if it was wrong for the claimant to have endorsed the dry-posted transactions carrying inexistent evidence of vouchers? The internal audit never raised any query and accepted the certificate as correct. At least, it is clear that, it was not the internal audit that discovered the fraud, but the owner of the account and the RM. The fact that, the Internal Audit did not raise any query on this; is significant for the proof that, the claimant did the proper thing and that, this has been the usual and proper practice of the defendant over time. The Chief Internal Auditor’s Report also kept mute on whether this has not been the practice. It failed to state the contrary practice of calling-over dry-posted transactions or to show how call-over on dry-posted transactions on the BSM’s supper password, are supposed to be done by call-over officers to detect fraud.

The defendant harped on the admission made by the claimant in accepting that it was pressure of work that made her to confirm the call-over transactions done with the BSM’s ID – see Exhibit D3 at page 3, paragraph 3. The claimant sought to explain this under cross-examination that, she only said this, to see if they would pay her monies. What I intend to draw out is that, with the establishment of the fact that, the call-over needed no further verification, once the BSM’s super password was used, of what use is the purported admission, negating the normal practice of the defendant, as attested by its Chief Internal Auditor? Obviously, it is demanding impossibility from the claimant. Why should it be the claimant that must go beyond her brief and against protocol, to accost the BSM, her very senior colleague with the demand that she should produce proof that she actually initiated and completed the use of her super password? The defendant has not by any shred of evidence denied the evidence that, what the claimant did was the usual practice and neither has the defendant produced any document or evidence of contrary practice or instruction to the contrary. It should be noted too, that, I was not obliged with the question leading to this answer in the said answer in Exhibit D3 paragraph 3. In Eboade & Anor v. Atomesin & Anor (1997) LPELR-989 (SC) 32, B, the Supreme Court opined, and I quote:

“In a civil case, admissions by a party are evidence of the facts asserted against but not in favour of such a party although they are not estoppels or conclusive against the party against whom they are tendered.”

That is the law on admission. The Courts have devised a means of ascertaining which admission could qualify to ground judgment and stated that:

“A judgment can be entered on admission but the kind of admission that will bind the parties must be clear, unequivocal and total. Admission is not a game of chance. It is not subject to speculation or conjecture. It is a statement orally made or in writing suggesting a clear and unequivocal inference as to any fact in issue or relevant fact unfavorable to the conclusion contended by the person in whom or on whose behalf the statement is made…it is not every admission that can qualify as basis of for judgment, the admission that can ground a judgment is the admission that must be unequivocal and must directly touch on or relate to the reliefs sought in the matter.” – see Moussallati & Ors v. Knight Frank Estate Agency (2017) LPELR-42893 (CA) 23-26, E-B. [Underline supplied for emphasis]

Like I observed earlier, the question leading to the answer in issue is not stated. It would equally be observed that, the said Exhibit D3, which is the report of the Disciplinary Committee, is not by any stretch of imagination, a proper report or memo, as it was called. It only recorded the only thing that the claimant said, which appeared to be against her and left out all other things. It is very opportunistic. And even at that, it did not deem it fit to record or paraphrase the question leading to the answer. It should be noted too, that, the Chief Internal Auditor referred the case to the Group Head, Human Resources Management & Development, vide Exhibit D2 [Chief Internal Auditor’s Report]. It should be noted also, that, Exhibit D3 admitted that, the accused reiterated their written submissions – see paragraph 1, sentence 1 thereof. The defendant tendered no written reaction of the claimant. However, the claimant herself tendered Exhibit A10, her reply to the query issued her.

It must be taken that, this is the written representation referred to by the defendant at page 3 of Exhibit D3; or if there is another, it did not favour the defendant, which was why it was not tendered. In any case, the claimant pleaded her reply to the query in issue, as the one adopted at the Disciplinary Committee – see paragraph 23 of the Statement of Facts and 24 of her written deposition adopted in Court. The defendant, in its paragraph 12 of the Amended Statement of Defence, did not dispute the adoption of the reply to the query. That rests the issue. In Exhibit A10, the claimant exculpated herself and maintained that, she did the right thing by performing the call-over in issue in accordance with the standard and normal practice of the defendant. This, the claimant reiterated in Exhibit D2. With the circumstances of Exhibit D3, as narrated above, the purported admission could not be said to be unequivocal nor could it be said to be conclusive on the fact in issue. And since admission is not even conclusive proof, the defendant has failed woefully to give any proof. Rather, the documents it tendered and its witnesses under cross-examination confirmed the absence of negligence on the part of the claimant.

In my own view, it simply means that, the Bank [defendant] deliberately created a fraud-prone system, whereby the management would allow frauds to be perpetrated and sacrifice the juniors to cover up. And this becomes more so, in the instant case, where the pin/User ID/password of the BSM was actually used in perpetrating the fraud in question. I feel what the defendant ought to have done in the instant case, was to block the leakage in their porous banking practice, by rejigging their procedure to obviate the flank opened to fraud by the abrasive powers of the BSM to bypass normal banking practice in initiating and completing transactions and not to surrender the transactions to the normal checking procedure of verification, and; not to look for a scapegoat, in the claimant, who had done all that devolved on her in the instant case.

I think the basic problem here is, the status of the power given to BSM to initiate and complete transactions without the assistance of anybody. Is the call-over officer to go ask her to personally sign that, the transaction was fraud free, when it was discovered that, her pin/User ID/password was used? In my view, and as supported by the evidence in Exhibit D2, the transactions initiated and completed by the BSM’s super password, are not liable to call-over, otherwise, the BSM would not have been given such wide unbridled power, notwithstanding the internally inconsistent evidence of DW1 [the BSM] under cross-examination. No wonder that, nobody knew of the fraud until the owner of the account came to complain! I agree that, all that the claimant needed truly, to do the call-over for dry-posted transactions initiated and completed by the super password of the BSM, is to check whether, in deed, the User ID/password of the BSM was used. Anything outside this is to turn the claimant into a magician.

I wonder why the bank would leave the BSM, with such unbridled powers, who decided to be careless with her pin/User ID/Supper password, careless in the sense that, she did not check her computer on daily basis, as recommended and allowed the branch to operate the Finacle beyond the approval time, as found by the report of the Chief Internal Auditor, and which extra time, was the time this fraud was committed, and the RM especially, who had the mechanism to checkmate the fraud from reaching completion and failed; and would be chasing a mere call-over officer, who had no power to question the BSM, the RM or even the Internal Auditor, who are mainly liable! On realizing this folly in the defendant’s check and balance procedure, what was needed, was to devise new procedure to checkmate it and; not to look for a hapless scapegoat.

I think by this, the claimant has established her case and the burden shifts to the defendant to show that, this was not the usual practice by tendering any past call-over certificate on dry-posted transactions signed by the claimant with different particulars or any policy book showing the contrary of the alleged practice. The defendant must show that, the claimant ought to or have the vires to go ask the BSM for further documents relating to the transactions. It must be remembered that, these transactions were initiated and completed on the User ID [super password] of the BSM without the interposition of any person. And I wonder whether the DW1 [BSM] does not have a method of knowing when her ID [super password] is being illegally used. If the bank fails in these respects, the case of the claimant stands. I cannot therefore find the basis of the findings against the claimants in the two reports of the defendants in issue, when all their evidence support the claimant and the testimonies of their witnesses under cross-examination equally support the claimant or contradictory, dodgy and unreliable. Thus, I answer the first question under this issue in favour of the claimant and against the defendant. No case of culpability is established against the claimant. I move to the second question under this issue. This question might not really be necessary, in view of the answer to the first question, but I propose to examine it, in case my reasoning and conclusion on the first question is wrong and for completeness.

The second question under issue 1 is: if the claimant is found culpable for any infringement, what is the appropriate punishment? The focal point of the answer to this question must devolve on the conditions of service, as contained in the Handbook [Exhibit D4 or A13]. First, I need to clear an issue at the inception. The position of law is that, you don’t unilaterally shift the goalpost when the game has commenced. This is encapsulated in the Court of Appeal’s decision in Unity Bank PLC v. Olatunji (2014) LPELR-24027 (CA) 49, D-E, where it was held, “It is trite law that a party is not at liberty to unilaterally vary the terms of agreement and such attempt is illegal, null and void.” While it is conceded that, it might be lawful for an employer to vary the terms and conditions of service and the rules of procedure and practice in the trade in tune with the realities on ground, such rules could not be amended in order to catch an employee whose alleged offence pre-dated the new rule. That is, an employer cannot be allowed to change the rule after an employee has committed an offence and is under investigation but before he is found liable, in order to impose a harsher sentence than originally provided under the rules in existence at the time the offence was committed. Even, if the Handbook provides for such bizarre right of employer, it must be struck down, for being a classical instance of unfair labour practice, which this Court is enjoined to prevent under section 254C – (1)(f) of the 1999 Constitution [as altered].

I have checked Exhibit A14 [Call Over Procedure] and observed that, it was made March 11 2015. The cause of action herein arose 24/3/2014. That is the date the alleged infringement against the claimant was allegedly committed. It is clear that, this Call Over Procedure was made after the alleged offence. A letter dated 27/03/2015 dismissed the claimant – see Exhibit A12. It is clear that, Exhibit A14, the Call Over Procedure, was made to garnish the claimant with dismissal. Now, the defence counsel argued that, that is not the case, and that; the exhibit merely reiterated what had all along been in the handbook. This argument is palpably wrong, when it is realised that, the third paragraph of Exhibit A14 states:

“All members of staff are hereby notified that henceforth any staff who is found culpable of the infraction of “improper call-over” or “failure to perform call over” which are offences under the “Negligence/Improper Performance of Duty” category, will incur the sanction of “summary Dismissal”. [Underline supplied for emphasis]

The Black’s Law Dictionary, (9^th edit) at page 793 defines ‘henceforth’ to mean “from now on” while the Webster’s Comprehensive Dictionary of English Language, Deluxe Encyclopedic Edition, page 589, defines it to mean “from this time on”. Clear from these definitions is that, the word signifies that, the offence in question did not originally attract the sanction of summary dismissal and that, ‘summary dismissal’ is a new sanction. We need therefore, not waste time going into the Handbooks to see if dismissal is the sanction for the offence of improper call-over or negligent performance of it. Exhibit A14 has conceded that, warning letter and compulsory resignation are the sanctions contained in the Handbook, otherwise, there would not have been any need for Exhibit A14. What Exhibit A14 reiterated is the importance of call-over procedure in the prevention of fraud and not the sanction of summary dismissal, which is just newly provided. I have even taken the labour to check the Handbook [Exhibit A13] and found under Article 14.3 that, the offence of improper performance of call-over actually fall under the sanctions of warning letter or termination and not dismissal.

I have found earlier on, in relation to question 1, under issue 1 that, no culpability was established against the claimant. It should be noted that, the letter of summary dismissal did not give any reason for the dismissal and the query issued the claimant did not allege connivance with the fraudsters against the claimant. The allegation of conspiracy is being made for the first time in the Statement of Defence and the written address of the defendant. So, it must be taken that, the allegation for which the claimant was dismissed, is negligent/improper performance of call-over exercise, as stated in the query. Thus, she was dismissed for negligence and thus, liable to the sanction of warning letter or compulsory resignation, which are the sanctions provided in the Handbook. That is if she were to be found guilty of the offence, which I have held earlier on, she was not found guilty by reason of not being found culpable of any infraction.

It follows that; the claimant was wrongly dismissed for an act that carried a lesser punishment at the time of the purported commission of the offence. It follows too, that, the defendant merely amended its sanctions grid to enable it dismiss the claimant. This cannot be allowed in any sane society. This becomes more so, in this particular case, where one of the principal suspects, [DW1: Taiwo Abimbola-Ojo] was let alone and even allowed to come and give evidence against the hapless claimant. In view of the foregoing, I also resolve question 2 in favour of the claimant and against the defendant. At the end, I resolve issue No. 1 in favour of the claimant and against the defendant. Before I end, let me correct the erroneous argument that, an employer can dismiss with or without reason. This state of affairs has transformed for the better by the enactment of the Third Alteration Act, which gives the Court the jurisdiction to eschew unfair labour practices and institutionalize best labour and employment practices – see section 254C – 1(f) of the 1999 Constitution [as altered]. By this, the nation must be in league with the comity of nations in preventing unfair labour relations. All modern democracies have frowned at dismissal without reason. Dismissal must be with reason.

In any case, the defendant has given the reasons for the dismissal in their pleadings, evidence and arguments in Court. It does not matter what time, whenever such reasons are offered, the defendant must prove them to the hilt – see SPDC V. Olarewaju [2008] LPELR – 3046 [SC] 19, E – G. The defendant has failed woefully to prove anything against the claimant. Instead, its pieces of evidence support the case of the claimant. On this, I am one with the learned counsel to the claimant. I therefore hold that, the claimant was wrongfully dismissed. I move to issue 2, which is the last.

ISSUE 2: WHETHER THE CLAIMANT IS ENTITLED TO THE RELIEFS CLAIMED?

I have no doubt in my mind that, the claimant is eminently entitled to relief 1, as claimed. I grant it in full. I will come to relief 2 later. The learned counsel to the defendant is mistaken in his argument that, even if the Court finds for the claimant she, is only entitled to salary in lieu of notice. The claimant is definitely entitled to her earned entitlements, if any, even though; she did not formulate a relief for this. The learned counsel must appreciate the distinction between termination and dismissal. With the state of things, the claimant could only be terminated and not dismissed. Since the Court cannot order reinstatement in the situation, the letter of summary dismissal is automatically converted to that of termination for services no longer required. The Court of Appeal stated the position in Obanye v. Union Bank of Nigeria Plc (2015) LPELR-25891 (CA):

“The law is settled that where a contract of employment is terminable on notice and the employee is not given the requisite notice or payment in lieu of notice, the only remedy available to the employee is the award of salary for the period of the notice and any other entitlements due to him at the time of the termination of the employment.” [Underline supplied for emphasis]

The claimant pleaded entitlements to some allowances in paragraph 31-33 of her Statement of Facts and gave evidence accordingly. She relied on her Statement of Account. But I don’t think this is what she needs in this instance. What she needs is, where she derives these allowances, either in her letter of promotion or the Handbook or another documentary source. This, she did not do. I cannot therefore grant the pleaded claims, more so, when no relief was framed on it. The claims are special claims that must be proved specially – see ISC Services Ltd v. Genak Continental Ltd & Anor (2006) LPELR-7662 (CA) 48, C-D. The claimant pleaded and gave evidence that she gave 29 years service to the defendant, as at the time she was dismissed – see paragraph 23 & 36 of the Statement of Facts and 37 of the written deposition. The defendant did not traverse the aspect relating to the length of service in its paragraph 19 of the Amended Statement of Defence. It is deemed accepted as true.

In any case, the claimant pleaded and tendered her letter of appointment and that of dismissal – see Exhibits A1 and A12. But I take note of Articles 15.6 and 15.7 of the Handbook [Exhibit A13], which show that, the defendant fully complied with the Pension Reform Act and the Decree No. 3 of 1992 on National Housing Scheme. In view of the powers conferred on me by section 14 of the National Industrial Court Act, I hereby order that, the defendant shall give maximum cooperation to the claimant in accessing her entitlements under the Pension Reform Act and Decree No. 3 of 1992, if the claimant has not accessed them. The defendant is also ordered to give the claimant one month salary in lieu of notice, as contained in Article 8.10A of the Handbook. The defendant is also ordered to give to the claimant, letter of termination with a certificate of service to that effect.

On the issue of damages, the position as canvassed by the defendant is not the current position of law. This Court does grant general damages in deserved instances in cases of termination or dismissal – see unreported decision of this Court in Suit No. NICN/AB/2012 – Omoudu v. Obayan & 4 Ors (Delivered 08/10/2014). In the suit, this Court stated the position of law thus:

“In Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258, a case of wrongful termination of employment, where it was decided that one month salary in lieu of notice would not meet the justice of the case. The Court frowned at the peremptory manner by which the Claimant’s appointment was terminated which it believed had the effect of suggesting that the Claimant did something wrong. The Court awarded six months salaries as meeting the justice of the case.”

As was held in an unreported decision of this Court in NICN/OW/87/2016 – Enang Jimmy v. Glassforce Ltd (Delivered 12/07/2019) p. 34:

“In fact, the decision of the Supreme Court in SPDC Ltd v. Olarewaju [2008] LPELR – 3046 [SC] p. 31, paras. D – G appeared to foreshadow this shift from obtuse common law position in employment relations between master and servant because in that case, the Supreme Court approved the award of N3million damages for detention and humiliation granted by the trial court against the employer. In the Industrial Carton’s case [supra], no reason was given for the termination. This Court awarded 6 months salaries to assuage the peremptoriness of the termination suggestive of culpability of the employee in gross misconduct. In this case, reasons were actually given to malign the claimant and tarnish his career image. Definitely, he must be entitled to more damages. I assess the damages at 12 months salaries as meeting the justice of the case.”

In the case at hand, the career of the claimant was truncated in a very disgraceful manner and without any justification whatsoever. The claimant was just used as a scapegoat to cover up the laxity of the Bank and some of its principal staff. To make matters worse, the defendant proceeded in their Amended Statement of Defence, pieces of evidence and final written address to the Court to now accuse the claimant of conspiracy with the perpetrators of the fraud, thereby rubbishing the 29 years career of the claimant in its service. Justification aggravates damages in defamation. Though, I take note that the claimant did not specifically plead defamation, but the principles remains the same on the authority of Industrial Cartons cited above. I also take note that, in banking sector, such dismissal totally destroys the career of the employee, in that; she cannot get another banking employment. In view of the above, I award the sum of N2million [Two Million Naira only] as general damages in favour of the claimant and against the defendant.

CONCLUSION

The above is the judgment of the Court. The defendant is granted 30 days grace to comply with all the aspects of the judgment, as stated above; failing, 10% interest rate begins to run on the monetary aspects of the judgment. I award cost of N200thousand [Two Hundred Thousand Naira only] against the defendant and in favour of the claimant. In reiteration, the Court grants the following reliefs:

(a) Relief 1, as framed by the claimant, is granted in its entirety;

(b) The claimant be issued with a letter of termination for services no longer required with a certificate of service to that effect;

(c) The claimant be paid one month salary in lieu of notice;

(d) Relief 2 is granted to the extent that, the defendant is hereby ordered to pay to the claimant N2Million [Two Million Naira Only] general damages;

(e) The defendant is ordered to cooperate with the claimant in accessing her entitlements under the Pension Reform Act; and Decree No. 3 of 1992 on Housing Loan, when she attains 60 years;

(f) Cost of N200thousand [Two Hundred Thousand Naira Only] is awarded against the defendant and in favour of the claimant;

(g) 30 days grace is granted to comply with all the terms of the judgment, failing which 10% interest rate begins to count on the monetary aspects.

Judgment is entered accordingly.

…………………………..

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA