IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE
DATE: 6TH FEBRUARY, 2020 SUIT NO: NICN/YEN/84/2015
BETWEEN:
MOSES CAPTAIN MINA —————— CLAIMANT
AND
UNITY BANK PLC —————– DEFENDANT
JUDGMENT
This suit was commenced by the Claimant vide Complaint and Statement of Facts filed on 3rd day of September, 2015, wherein the Claimant claims the following reliefs against the Defendant:
- A declaration that the summary dismissal of the Claimant from the services of the Defendant via the Defendant’s letter of 8th September, 2009 is ultra vires the defendant, unlawful, null and void.
- A declaration that the summary dismissal of the claimant via the defendant’s letter of 8th September, 2009 was not in accordance with the Defendant’s Employees Handbook but in line with an alleged Collective Agreement and therefore null and void.
- A further declaration that the Claimant is still a staff of the Defendant and therefore entitled to all his salaries in the sum of N4,200,000.00 (Four Million Two Hundred Thousand Naira) per annum from 8th September, 2009 until judgment is delivered.
On the 22nd day of January, 2018 I. F. Olunwa Esq. appeared for the Claimant while Ajibo E. O. Ndubuisi Esq. announced appearance for the defendant. Learned counsel to the defendant moved the Defendant’s Application dated 29th of October, 2015 and filed on 30th October, 2015 for regularization of the Memorandum of Appearance, Statement of Defence and other accompanying processes. With no objection from the claimant’s counsel, the application was granted, and the said processes were deemed as having been properly filed and served.
It is pertinent to state that, the Claimant filed a Reply to the Defendant’s Statement of Defence together with an additional deposition of the claimant on the 29th day of January, 2016.
On the 21st day of February, 2018 when the matter came up for trial, A. O. Imaguezegie Esq appeared with I. F. Olunwa Esq. for the Claimant, while Ajibo E. O. Ndubuisi Esq. appeared for the defendant. The Claimant opened his case by testifying for himself as CW. The witness who swore with the Holy Bible and testified in English language introduced himself as Moses Captain Mina of Trinity Close, Off Air Force Expressway, Eliogbolo Layout, Port Harcourt Rivers State. He thereafter identified his statement on oath made on the 3rd of September, 2015 and the additional statement on oath made on the 29th of January, 2016 which he adopted as his evidence in this suit. The following documents were tendered through CW and admitted as exhibits by the court:
- Document titled “Exception on the selling of FX to customers” dated 7th June, 2009 —— exhibit CW1.
- Document being letter of summary dismissal dated 8th September, 2009 ——- exhibit CW2.
- Document being letter of suspension from duty dated 12th June, 2009 —- Exhibit CW3.
- Document being letter of appointment issued by Unity Bank Plc dated 1st January, 2006 —- Exhibit CW4A-C.
- Document being offer of appointment issued by Bank of the North Limited dated 8th September, 2000 —— Exhibit CW5A-B.
- Document titled “Exception on the sales of FX to customers” dated 8th May, 2009 ———— Exhibit CW6A-B.
It may be apposite to point out at this point that, in the course of the trial the Claimant by a motion on notice dated 13th April, 2018 and filed on 16th of April, 2018 sought for leave of court to amend the Statement of Facts in this suit. This application was argued on the 23rd of May, 2018 and since there was no objection by the learned counsel to the Defendant Ajibo E. O. Ndubuisi Esq., same was granted as prayed and the Claimant was granted 7 days to file clean copies of the Amended Processes.
The Defendant on the other hand, was given 14 days from date of service to file any consequential amendment, while the Claimant had 7 days to file any Reply. The Claimant’s Amended Statement of Facts together with witness statement on oath was filed on 30th May, 2018.
On the 4th of October, 2018 when the matter came up for trial, I. F. Olunwa Esq announced his appearance for the Claimant while Ajibo E. O. Ndubuisi Esq. appeared for the Defendant. The CW who was reminded of his oath continued with his evidence-in-chief by adopting his deposition made on 30th May, 2018 and also tendered the following additional documents which were admitted by the court:
- Unity Bank Plc Employee Handbook —– Exhibit CW7.
- Letter of appeal dated 19th October, 2009 —- Exhibit CW8A-B.
- Solicitor’s letter of Spurgeon Ataene & Co. dated 26th October, 2011 —— Exhibit CW9.
- Bundle of documents being applications for personal travel allowances —— Exhibit CW10A-R.
The witness was then cross-examined without any re-examination after which the claimant closed his case on the 28th day of November, 2019, and the case was thereafter adjourned for defence.
It is pertinent to note that, pursuant to the order of court granting leave to the Claimant to amend the Statement of Facts, the Defendant by right filed an Amended Statement of Defence together with List of Documents, List of Witnesses, Witness additional statement on oath and frontloaded documents on the 21st day of June, 2018.
On the 24th day of January, 2019 when the matter came up for defence I. F. Olunwa Esq. appeared for the Claimant while Ajibo E. O. Ndubuisi Esq. appeared for the Defendant. The Defendant’s sole witness took the witness stand and swore with the Holy Bible. The witness who testified in English Language as DW introduced herself as Rosemary Ejougha Odofori, the Relationship Manager of Unity Bank Yenagoa Branch, but that at the time the issues in this case occurred she was the Resident Control Officer of Unity Bank Mission Road Benin, Edo State. DW then identified her deposition which was made on the 21st of June, 2018 which she adopted as her evidence in this suit. The following documents were tendered by the defendant through DW and admitted by the court:
- CTC of CBN Foreign Exchange Manual ——– Exhibit DW1.
- Document titled “The Main Collective Agreement” —— Exhibit DW2.
- Bundle of documents being Emirates Airline tickets, copies of international passports etc tendered by the Claimant’s counsel through DW and admitted under protest as Exhibit DW3.
The witness was then cross-examined by the learned Claimant’s counsel without any re-examination. The Defendant closed its case on 14th day of March, 2019, and the matter was adjourned to 6th May, 2019 for adoption of final written addresses.
May I say that from the 14th of March, 2019 the matter could not come up until 15th of October, 2019 due to the court’s involvement in national assignment at the National and State Houses of Assembly Elections Tribunal in Sokoto State.
On the 15th of October, 2019, I. F. Olunwa Esq. appeared with N. P. Odanwu Esq. for the Claimant while J. G. Unanaowo Esq. appeared for the Defendant. The learned counsel to the defendant moved the Defendant’s application for extension of time to file Final Written Address and with no objection from learned Claimant’s counsel, the application was granted as prayed. The Defendant’s Final Written Address dated 8th April, 2019 and filed on 15th April, 2019 was deemed as having been properly filed and served. The case was thereafter adjourned to 30th October, 2019 for adoption of Final Addresses.
On the 30th of October, 2019 Mr. I. F. Olunwa Esq. who appeared with P. N. Odanwu for the Claimant informed the court that they had filed an application to further amend the Statement of Facts but since Defendant’s counsel was absent the court further adjourned the matter to 20th November, 2019. When the matter came up on 20th November, 2019, I. F. Olunwa Esq. appeared with P. N. Odanwu for the Claimant while J. G. Unanaowo Esq. held the brief of A. E. Oluchi for the Defendant. Mr. Olunwa for the Claimant expressed his desire to argue the Claimant’s application for leave of court to further amend the Statement of Facts but Mr. Unanaowo Esq. informed the court the they were yet to be served with the said application. The case was adjourned to 2nd December, 2019 for hearing.
When the matter came up on the 2nd of December, 2019, P. N Odanwu Esq. appeared for the Claimant while G. O. Asogwa Esq. held the brief of A. E. Oluchi Ndubuisi Esq. for the Defendant. Mr. Odanwu informed the court that his principal stepped out of the courtroom and sought for a stand down.
The matter was stood down to be taken after the next matter listed on the court’s cause list for the day. The case was recalled at about 12pm with I. F. Olunwa Esq. appearing with P. N. Odanwu Esq. for the Claimant, while G. O. Asogwa held the brief of A. E. Oluchi Ndubuisi for the Defendant.
The learned counsel to the claimant thereafter moved his application for further amendment of the Statement of Facts dated 19th September, 2019 and filed on 23rd September, 2019 and urged the court to grant same. The learned counsel to the Defendant on the other hand adopted his processes which were filed on 29th of November, 2019 in opposition to the claimant’s application and urged the court to dismiss the application. The court thereafter adjourned the matter to 6th December, 2019 for ruling.
When the case came up on the 6th of December, 2019, I. F. Olunwa Esq. appeared with P. N. Odanwu Esq. for the Claimant while G. O. Asogwa Esq. held the brief of A. E. Oluchi Ndubuisi Esq. for the Defendant. The court in a considered ruling delivered in open court refused the application and ordered parties to proceed with the adoption of their respective final written addresses.
The Defendant’s Final Written Address was dated 8th April, 2019, filed on 15th April, 2019 but deemed on the 15th of October, 2019. The Claimant’s Final Written Address on the other hand was dated 19th September, 2019 and filed on 23rd September, 2019.
With the adoption of parties’ Final Written Addresses, the suit was adjourned for Judgment.
CASE OF THE CLAIMANT:
The Claimant was initially employed by Bank of the North Limited as a supervisor on the 8th of February, 2000. With the emergence of the Defendant, he was given fresh letters of appointment as Assistant Bank Officer dated 8th February 2000 and 1st of January, 2006 respectively. According to the Claimant, due to his hard work he was promoted by the Defendant in 2008 to the post of Bank Officer and was the Branch Service Manager of the Defendant’s Mission Road Branch in Benin City, Edo State where he had been transferred to from Azikiwe Road Branch, Port Harcourt.
The Claimant averred further that, what spurred the issues in contention in this case was an allegation of fraudulent Foreign Exchange Transaction made against him and the Fund Transfer Officer of the Defendant’s Mission Road Branch Benin City which arose out of jealousy and victimization by the Resident Internal Control Officer of the Branch who raised an exception on a Foreign Exchange carried out by the Claimant and the Fund Transfer Officer on the 6th and 7th of May, 2009. That he immediately responded to the said exception on the 8th of May, 2009.
It was further pleaded by the Claimant that, contrary to the laid down procedure in Chapter 12 paragraph 10(b) and (c) of the Defendant’s Employee Handbook, the Internal Control Officer forwarded a report to the Managing Director’s office without any reference to her immediate boss in the region alleging that her life was threatened by the clamant in a telephone conversation which led to his suspension 12th June, 2009 and subsequent summary dismissal from service on 8th of September, 2009.
That himself and the Fund Transfer Officer appeared before a panel headed by one Alhaji I. T. Mohammed and after their explanations, they were informed by the panel that the panel was only interested in the alleged threat to the Internal Control Officer which was not stated in the letter of suspension and no evidence of the said telephone conversation was given. That by the provisions of Chapter 12 paragraph 11(b) of the Defendant’s Employee Handbook, the Panel was to also comprise of Internal Control Representative and Company Secretary/Legal Services Representative which was not the case in this suit. That he was therefore not afforded the opportunity to defend the allegation against him in line with Chapter 12 paragraph 10 of the Defendant’s Handbook.
According to the Claimant, the Collective Agreement referred to in the letter of summary dismissal is not contained in the Handbook and therefore not part of the terms of his employment. That the action of the Defendant caused him untold hardship as his appeal dated 19th October, 2009 and that of his solicitors dated 26th October, 2009 addressed to the Defendant were to no avail.
DEFENDANT’S CASE:
According the Defendant, the employment of the Claimant was governed by both the Employee Handbook and the Collective Agreement which copies were made available to the Claimant upon his employment. That the summary dismissal of the claimant was based on his involvement in fraudulent foreign exchange transactions which occurred on the 6th of May, 2009 at the Defendant’s Mission Road Branch Benin City, and all disciplinary and fair opportunities were given to the claimant before his suspension and subsequent dismissal from service.
The Defendant who gave a chronological narration of the events that spurred this case pleaded that, the Branch initiated Foreign Exchange transaction with the supply of One Hundred Thousand U.S. Dollars ($100, 000.00) by the Central Liabilities Operation Department on 5th May, 2009, and when the supply was received, both the Claimant and the Foreign Exchange Officer sold the sum of Seventy Six Thousand U.S. Dollars ($76, 000.00) as Personal Travel Allowance (PTA) to one Alhaji Armed Abdu who had opened account no. 350/1707683/1/1/0 with incomplete documentation and personally approved by the Claimant on the same date (6th May, 2009) with the sum of ten thousand naira only (N10,000.00) contrary to the Defendant’s general banking policy. That the said account had the following outstanding account opening documents: Means of Identification, References, Utility Bill, and Visitation.
The Defendant avers further that, on the same 6th of May, 2009 when the account was opened the said Alhaji Armed Abdu submitted 19 applications all bearing Lagos Address totaling the sum of Seventy Six Thousand US Dollars ($76, 000.00) which were all processed by the Claimant who was the Business Service Manager and the said amount meant for 19 different applicants was collected by the said Alhaji Armed Abdu contrary to well known Foreign Exchange Policies. That Alhaji Armed Abdu in conjunction with the Claimant filled all the different deposit slips for each of the requests.
That by the Foreign Exchange Operational Procedure Guideline/Policy, the applicant must present himself and submit valid passport with relevant visa and international return ticket before such application could be considered and granted. That the Claimant who attended the Bureau De Change (BDC) transaction training at the Central Liabilities Operations in Lagos was aware of the procedure but refused to follow same.
According to the Defendant, contrary to the Claimant’s averment, it was after the Resident Internal Control Officer at the Defendant’s Mission Road Branch, Benin City discovered that only one person had parted with the sum of $76,000.00 contrary to the policy guiding such transaction and there were incomplete documentations in respect of the transactions that she raised an alarm by issuing to the Claimant an exception dated 7th May, 2009 which the Claimant responded to and admitted that he allowed an agent to conduct the transactions on behalf of the applicants contrary to the policy guidelines. That the action of the Claimant was fraudulent and also caused the Defendant losses and reputational damage.
According to the Defendant, the Claimant was afforded adequate opportunity to defend himself as he was duly invited and appeared before the panel set up by the Management in accordance with the provisions of the Employee Handbook and the Collective Agreement. That since the action of the Claimant was in total breach of the Central Bank of Nigeria Foreign Exchange Policy, his dismissal was in accordance with the Employee’s Handbook and the Collective Agreement and all the procedural requirements were adhered to before his dismissal from service.
The Defendant then pleaded particulars of fraud as the connivance of the Claimant with Alhaji Armed Abdu and approved foreign exchange transactions contrary to the Central Bank of Nigeria Foreign Exchange Policy Guidelines.
DEFENDANT’S SUBMISSIONS.
The Defendant distilled three (3) issues for determination, to wit:
- Whether the Claimant’s claim in this suit is not statute barred, and therefore liable to be dismissed?
- Whether from the totality of the evidence adduced before the court, the Claimant has proved his case in accordance with the requirements of the law to entitle him to any of the reliefs sought in this case?
- Whether from the totality of the evidence adduced before the court, the Defendant is liable to the claims of the Claimant
On issue one (1), it is the submission of learned counsel that, where a statute of limitation prescribes a period within which an action must be commenced, time begins to run the moment the cause of action accrues and proceedings shall not be brought after the prescribed time. On this point references were made to the cases of Industrial Training Fund V. Nigerian Railway Corporation (2007) 3 NWLR (Pt. 1020) 28; Yakubu V. NITEL (2005) 9 NWLR (Pt. 985) 367; Muhammed V. Military Administrator, Plateau State (2001) 16 NWLR (Pt. 740) 524; SHELL Petroleum Development Corporation V. Farah (1995) 3 NWLR (Pt. 382) 148; Yare V. NSWIC (2013) LRCN Vol. 219 Part 2, 56 at 75 paras. A-F; Amede V. United Bank for Africa (2003) 8 NWLR (Pt. 1090) 623; Chukwu V. Amadi (2009) 3 NWLR (Pt. 1127) 56; Duzu V. Yunusa (2010) 10 NWLR (Pt. 1201 80; Ajayi V. Military Administrator, Ondo State (1997) 5 NWLR (Pt. 504) 237; Akinkunmi V. Sadiq (2001) 2 NWLR (Pt. 695) 101; Ogoh V. Enpee Industries Ltd (2004) 17 NWLR (Pt. 903) 449; and Adimora V. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 17.
That in determining whether or not a suit is statute barred, the court is enjoined to only look at the writ of summons and the Statement of Claim alleging when the cause of action accrued and to compare same with the date the suit was filed, and if the time indicated on the writ of summons is beyond the period allowed by the limitation law then the action is statute barred. See Adekoya V. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539; Odum V. Uganden (2009) 9 NWLR (Pt. 1146) 281; Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547; JFS Investment Ltd V. Brawal Line Ltd (2010) 18 NWLR (Pt. 1225) 495; Olora V. Adegbite (2013) 1 NWLR (Pt. 1334) 40; Attorney General, Adamawa State V. Attorney General of the Federation & Ors (2014) 14 NWLR (Pt. 1428) 515; Ajayi V. Military Administrator Ondo State (1997) 5 NWLR (Pt. 504) 237 and Amata V. Omofuma (1997) 2 NWLR (Pt. 485) 93 at 109 A-B.
That while by the provision of section 16 of the Limitation Law of Rivers State the instant suit ought to have been filed within five years of the occurrence of the cause of action, the Claimant who averred in paragraph 9 of the Amended Statement of Facts that he was served the letter of summary dismissal on 8th of September, 2009, this suit which was filed on 3rd September, 2015 was not commenced within the period of limitation. That the suit was filed 11 months and 26 days after the occurrence of the cause of action. The court was therefore urged to hold that the suit is statute barred, and to decline jurisdiction in the matter.
On the importance of jurisdiction to court proceedings, learned counsel referred the court to the following cases: Abuja Investment & Property Development Co. Ltd V. Paul & Ors (2018) LPELR-45827; Alhaji Jibrin Isah V. INEC & Ors. (2016) 18 NWLR (Pt. 1544) 175 at 222; Skye Bank Plc V. Victor Anaemem Iwu (2017) 6 NWLR (Pt. 1590) 24 at 111; Okorocha V. UBA & Ors (2018) LPELR-45122.
The court was finally urged to dismiss the Claimant’s case for want of jurisdiction as the suit is statute barred.
With regard to issue two (2), it was argued that the Claimant has not adduced sufficient evidence before the court to be entitled to the reliefs being sought in this suit. That he who asserts has the onus of establishing his assertion on the preponderance of evidence referring to sections 131(1), 134 of the Evidence Act, 2011, and the cases of Mr. C. I. D. Maduabum V. Hon. Ben Chuks Nwosu (2010) 13 NWLR (Pt. 1212) 639; Onwula V. Uche (2010) 2 NWLR (Pt. 1179) 582 at 583; W. A. Cotton Ltd V. Haruna (2008) All FWLR (Pt. 426) 1955; N. B. Ltd V. D.C. Holding Ltd (2004) 13 NWLR (Pt. 436) 462 and Agbaje V. Fashola (2008) All FWLR (Pt. 443) 1302.
That in the instant case the claimant who did not show how his dismissal was unlawful failed to discharge the burden of proof placed on him by the law. That he admitted being queried vide exhibit CW1 which he responded to vide exhibit CW6A-B and subsequently appeared before the Defendant’s Disciplinary Panel. The Defendant’s counsel reproduced the provisions of Chapter 12.8 of the Employee Handbook and argued that, the Defendant duly complied with the provisions and the Claimant failed to prove by credible evidence that his summary dismissal was not carried out in line with the Employee Handbook. That upon employment both the copies of the Handbook and the Collective Agreement are handed over to the new employee as in the Claimant’s case, and that the provisions of the Employee Handbook relating to termination of employment are the same with those of the Collective Agreement.
It was the further submission of learned counsel to the Defendant that, since the contract/relationship between the Claimant and the Defendant is that of master/servant and governed by a written contract, the duty of the court is to interpret and apply the terms of the contract without more. Reference was made to the case of Olaniyan V. University of Lagos (2004) 15 WRN, 44 at 72, and exhibits CW4A-C, CW7 and DW2.
That in a master/servant relationship as in the instant case, the employer can terminate the employee’s employment at anytime and for no reason provided there is compliance with the terms and conditions of the employment; and the onus is on the Claimant to show how the said dismissal was wrongful. See Olarewaju V. AFRIBANK (2001) 37 WRN 41 at 50; WAEC V. Obisesan (2008) 26 WRN 120 at 135; Okomu Oil Palm Ltd V. Iserhienhien (2001) 21 WRN 162; Kwara State CSC V. Abniodum (2010) 14 WRN 52 at 101; and Orji V. Orji Textile Mills (Nig) Ltd (2010) 5 WRN 32 at 50-51.
On the Claimant’s claim of N4, 200,000.00 per annum it was submitted that the Claimant who admitted under cross-examination that before his dismissal his salary per month was N385,000.00 failed to lead any evidence that he was receiving the said amount as monthly salary and equally failed to show how he arrived at the sum of N4,200,000.00 as annual salary. That he also did not inform the court the amount being owed him by the defendant as salaries before his dismissal.
That the evidence of the claimant is manifestly incredible because while he is claiming the sum of N4,200,000.00 as his annual salary, exhibit CW4A-C clearly indicated his annual salary as N262,500.00. That any pleaded fact not supported by evidence is deemed abandoned, and the Claimant must succeed on the strength of his case and not on any weakness in the case of the Defendant. See Ojoli V. Kamalu (2005) 18 NWLR (Pt. 958) 523; Aregbesola V. Oyinlola (2010) 9 NWLR (Pt. 1253) 458 at 596; Onya V. Ogbuji (2011) All FWLR (556) 493 at 517; Dame Pauline K. Tallen & Ors V. David Jonah Jang & Ors (2011) LPELR-9231.
The court was therefore urged to resolve issue two (2) in favour of the Defendant and to dismiss the instant suit with substantial cost against the Claimant.
On issue three (3) references were made to section 33(1)(b) of the CBN Act, 2007, section 1(2) of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act and section 15 of the Banking Act, on the submission that pursuant to the powers vested on the CBN it issued to all Banks the Foreign Exchange Manual (exhibit DW1) to regulate foreign exchange transactions. That while by exhibit DW1 which deals with Personal Travel Allowance authorizes dealers and buyers of foreign exchange to sell foreign exchange for Personal Travel to countries outside Nigeria subject to necessary documentation of valid passport with relevant visa and international return ticket, the claimant admitted under cross-examination that no valid international passport with visa , international return ticket or power of attorney were submitted to him by the purported applicants. That the claimant jettisoned the foreign exchange guidelines and allowed one Alhaji Armed Abdu to purchase the said foreign exchange on behalf of other 18 applicants who did not come to the Defendant’s branch for the transactions and without power of attorney authorizing him to act on their behalf.
It was further argued that, the evidence of DW1 showed that it was as a result of the claimant’s involvement in fraudulent foreign exchange transaction that led to his being queried which he responded to and his subsequent dismissal from service. That DW1 equally informed the court that the Claimant was invited by the Management of the Defendant to appear before a duly constituted Disciplinary Panel and that all the conditions stated in the Employee Handbook and the Collective Agreement were complied with before the claimant’s summary dismissal. That since the evidence of DW was neither challenged nor discredited, the claimant is deemed to have admitted same and the court should rely and act on same. See Total Nigeria Plc V. Morkah (2002) 9 NWLR (Pt. 773) 492; Augustine Obineche V. Humphrey Akusobi (2010) 12 NWLR (Pt. 1208) 383 at 392; Olohunde V. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Okike V. L.P.D.C. (2005) 15 NWLR (Pt. 949) 471 and Guiness Nigeria Plc V. SKA Nigeria Ltd (2012) 8 NWLR (Pt. 1302) 330 at 360.
The court was finally urged to dismiss the instant suit in its entirety for want of proof.
CLAIMANT’S SUBMISSIONS
The Claimant nominated five (5) issues for the determination of this court, to wit:
- Whether the claimant’s claim in this suit is statute barred, and therefore liable to be dismissed.
- Whether the alleged Collective Agreement form part of the Claimant’s contract of service and thus binding and enforceable against the Claimant.
- Whether any fraudulent dealing was established against the Claimant with respect to a foreign exchange transaction to justify his dismissal.
- Whether the employment of the Claimant was validly terminated in accordance with the terms and conditions of his employment by the Defendant.
- Whether the Claimant is entitled to the reliefs sought in this suit.
While arguing issue one (1) learned claimant’s counsel referred the court to the cases of Aladegbemi V. Fasanmade (1988) 3 NWLR (Pt. 81) 129 and Banjo & Ors. V. Eternal Sacred Order of Cherubim and Seraphim (1975) 2 SC 37, on the point that the question as to when a cause of action arose in the instant suit can only be determined from the facts of the case and evidence adduced before the court. That since there is no time limit within which the claimant’s appeal to the defendant can be determined, the issue of the action being statute barred is misconceived.
According to learned claimant’s counsel, since the defendant did not plead the issue of statute of limitation the defendant cannot rely on the defence of statute of limitation in this suit, referring to Savannah Bank of Nigeria Ltd V. Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt. 49) 212 at 225; Omotosho V. Bank of the North Ltd & Anor. (2006) 9 NWLR (Pt. 986) 773 and Oyebamiji V. Lawanson (2008) 15 NWLR (Pt. 1109) 122.
It was further argued that since by paragraphs 7, 11, 12, 14 and 17 of the Statement of Facts the cause of action arose in Benin City Edo State and not Rivers State, the Limitation Law of Rivers State is not applicable referring to the case of Amavo Ltd V. Bendel Textile Mills Ltd (1991) 8 NWLR (Pt. 207) 37 at 51. Learned counsel then referred the court to section 4(1)(a) of the Limitation Law, Laws of Bendel State as applicable to Edo State, and argued that the instant suit filed on the 3rd of September, 2015 was filed within 6 years as provided by the said law. The court was therefore urged on this issue to hold that the instant suit is not statute barred.
With regard to issue two (2), it was submitted by learned counsel to the Claimant that, what regulates the relationship between an employer and employee is the contract of employment between the parties and the staff handbook (in this case exhibits CW4 and CW7). See Ekhator V. Alliance Autos Nig. Ltd & Ors (2015) 59 NLLR (Pt. 205) 416; Alhassan V. ABU Zaria (2011) 11 NWLR (Pt. 1259) 417; Olarewaju V. Afribank (Nig) Plc (2001) 12 NWLR (Pt. 731) 691. That exhibit DW2 (the Collective Agreement) is not applicable to the claimant because it was not incorporated into the contract of employment (exhibit CW4). See UBN V. Chinyere (2010) 10 NWLR (Pt. 1203) 471; Texaco Nigeria Plc V. Kehinde (2001) 6 NWLR (Pt. 708) 224 and Rector, Kwarapoly V. Adefila (2007) 15 NWLR (Pt. 1056) 42. That it is not the court’s duty to rewrite agreements for parties, referring to Ladipo V. Chevron (Nig) Ltd (2005) 1 NWLR (Pt. 907) 227; Dr. Ben Chukwuma V. Shell Petroleum (1993) 4 NWLR (Pt. 288) 512 and Union Bank of Nigeria Plc V. Emmanuel Aderewaju Soares (2012) NWLR (Pt. 1312) 550.
The court was finally urged to resolve issue two in favour of the Claimant and hold that his dismissal on the basis of Article 4(ii)(a-c) of exhibit DW4 is contrary to the terms of employment and therefore wrongful.
On issue three (3) the Claimant’s counsel argued that, while an employer can terminate or dismiss an employee with or without reason, where however the employer gives reasons for the dismissal he must prove the reasons at the trial otherwise the dismissal will be considered wrongful. That since the Defendant in paragraphs 13, 15, 17, 18, 19, 20, 21, 26, 28 and 29 of the Amended Statement of Defence stated the reason for the dismissal of the claimant to be fraudulent dealing, the Defendant has the legal burden of justifying the reason. See Spring Bank V. Babatunde (2012) All FWLR (Pt. 609) 1191; Mr. Kunle Osisanya V. Afribank Nigeria Plc (2007) All FWLR (Pt. 360) 1480 at 1491 and Gel Shipping Dyeing Ltd V. Ajah (2000) 13 NWLR (Pt. 685) 551.
That the failure of the defendant to tender the alleged incomplete 19 applications allegedly submitted by one Alhaji Armed Abdu and processed by the Claimant should be taken as being unfavourable to the defendant in accordance with the provision of section 149(d) of the Evidence Act. That any pleading not supported by evidence is of no consequence, and any evidence on facts not pleaded goes to no issue and should be discountenanced, referring to New Nigerian Bank Plc V. Denglac Ltd (2004) All FWLR (Pt. 228) 606; Aji V. Chad Basin Dev. Authority (2004) All FWLR (Pt. 237) 424; Nwafor Nwawuba & Ors V. Jerome Enemo & Ors (1988) NWLR (Pt. 78) 581 and Aniemeka Emegokwue V. James Okadigbo (1973) 4 SC 11.
It was further argued that, by exhibit CW6 the Claimant acted within the scope of his professional duties in line with exhibit DW1, and from the totality of the evidence in this case, the defendant has not been able to prove that the claimant was involved in any fraudulent transaction. The court was therefore urged to resolve issue three (3) in favour of the claimant and hold that the allegation of fraudulent PTA transaction against the Claimant has not been established.
With regard to issue four (4) learned claimants’s counsel submitted that, since parties are bound by the contents of any agreement voluntarily entered into by them, where the termination of employment does not follow the procedure set out in the condition of service same will be declared wrongful.
See CBN V. Dinneh (2010) 17 NWLR (Pt. 1221) 125; Fakuade V. OAUTH (1993) 5 NWLR (Pt. 291) 47 and Idoniboye-Obe V. NNPC (2003) 2 NWLR (Pt. 805) 589 at 630.
That contrary to the provisions of Chapter 12 paragraph 10(b) of exhibit CW7, no improper performance report was communicated to the Claimant’s superior (the Principal Manager) and no query, comment or recommendation was sent from the regional manager to the head office of the defendant. That the claimant was also not invited to appear before any disciplinary panel as there is nothing before the court to show that he was either invited or appeared before any panel concerning this case. That the disciplinary panel itself was not properly constituted in line with chapter 12 paragraph 11(b) of exhibit CW7. The court was finally urged to resolve issue four (4) in favour of the Claimant and hold that, the Defendant failed to follow due process before dismissing the Claimant from service.
The last issue formulated and argued by the Claimant’s counsel relates to whether the claimant is entitled to damages and the reliefs sought in the instant suit. Learned counsel posited that, where the court finds that the dismissal of the claimant was wrongful it has the powers to order for the payment of all salaries, allowances and emoluments due to the Claimant from the date of dismissal to the date of judgment, referring to the case of BCC Plc V. Ager (2010) 9 NWLR (Pt. 1199) 292, and Ogunjobi V. Emzor Pharmaceutical Industries Limited (2015) 58 NLLR (Pt. 202) 583 at 623. That the Claimant has proved that he is entitled to unpaid salaries as the argument that he did not show proof of salary and that there are discrepancies in the figures stated by the claimant should be discountenanced by the court.
On award of damages, learned Claimant’s counsel referred the court to the provision of section 19(d) of NICA 2006, and argued that this court has the power to award compensation or damages in the instant suit. That the wrongful acts of the Defendant against the Claimant in the circumstances of this case amount to unfair labour practice and a breach of the contract between the parties, hence the Claimant is entitled to general damages as claimed. See UTC (Nig) Ltd V. Philips (2012) 6 NWLR (Pt. 2012) 136; Ighreriniowo V. SCC (Nig) Ltd (2013) 10 NWLR (Pt. 1361) 136; FBN Plc V. Olaleye (2013) 1 NWLR (Pt. 1334) 102; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121 and Julius Berger (Nig) Plc V. Ogundehin (2014) 2 NWLR (Pt. 139) 388.
It was further argued that, by section 44(4) and (7) of the Banks and Other Financial Institutions Act, (the correct provision is section 48(4) and (7) not section 44 cited by counsel), the dismissal of a bank staff carries with it a mark of infamy as such a dismissed employee cannot be employed by any other bank. That the Claimant has shown that he suffered untold hardship since his dismissal by the defendant. See Duru V. Skye Bank Plc (2015) 59 NLLR (Pt. 59) 722 at 723.
That since where there is a wrong, there should be a remedy, the court should grant all the reliefs claimed in this suit. See Ogbolosingha V. Bayelsa State Independent Electoral Commission (2015) LPELR (incomplete citation).
COURT’S DECISION
Having carefully considered the pleadings, evidence and submissions of both counsel in this suit, I am of the view that in order to avoid proliferation of issues this court shall adopt the Defendant’s issues one and two which are very comprehensive in determining this matter. These issues are:
- Whether the Claimant’s claim in this suit is statute barred, and therefore liable to be dismissed?
- Whether from the totality of the evidence adduced before the court, the Claimant has proved his case in accordance with the requirements of the law to entitle him to the reliefs sought in this case?
In view of the established legal position that jurisdiction is the life wire of any trial proceeding, and so fundamental that once it is raised it must be determined first before any further steps are taken in the trial, I shall firstly consider issue one (1) which touches directly on the jurisdiction of this court to hear and determine this suit on the premise that same is statute barred having not been commenced within 5 years of the occurrence of the cause of action as required under section 16 of the Limitation Law of Rivers State.
A major contending point with respect to this issue is which of the two Limitation Laws between the Limitation Law of Rivers State and that of Edo State should apply in the circumstances of this case. While the learned counsel to the Defendant relied on the Limitation Law of Rivers State and submitted that since the instant suit was not commenced with five years of the occurrence of the cause of action the suit is statute barred, the learned counsel to the Claimant countered by arguing that since the cause of action arose in Benin City it is the Bendel State Limitation Law (as applicable to Edo State) that should apply. That since the said law provides for six years, the instant suit filed on 3rd of September 2015 was filed within time and is therefore not statute barred.
I must state that both counsel in this suit have made brilliant submissions regarding how to determine whether an action is statute barred and the implications of such determination to the case. There is therefore no need to over flog or repeat such arguments save to state that having perused the averments in paragraphs 7, 9, 11, 12, 13, 14. 15 and 17 of the Amended Statement of Facts, I am convinced that the cause of action in this suit occurred in Benin City Edo State. That being the case, it is my humble view that the Rivers State Limitation Law does not apply in the circumstances of this case. See A. Ibegbu V. Lagos City Council Caretaker Committee and Another (1974) 2 S. C. 70 – 71.
From paragraph 9 of the Amended Statement of Facts, the Claimant averred that he was given the letter of summary dismissal dated 8th September, 2009, and the instant suit was commenced on 3rd of September, 2015. Since the Limitation Law of Edo State provides for a period of six years within which to commence an action, the instant suit which was filed on the 3rd of September, 2015 was filed within the limitation period and is therefore not statute barred. I so find and hold.
Issue one (1) is therefore resolved against the Defendant.
I shall now proceed to consider issue two (2) which is whether from the totality of the evidence adduced before the court, the Claimant has proved his case in accordance with the requirements of the law to entitle him to any of the reliefs sought in this case.
Before I consider this issue, it may be crucial to first resolve some preliminary issues that arose in the course of the trial of this suit, particularly relating to the admissibility of some of the exhibits admitted by the court. In the course of the trial learned counsel to the parties had expressed the desire to object to the admissibility of exhibits CW8A-B and DW3 in their respective Final Written Addresses. The court admitted the said exhibits and directed both counsel to address the court on the weight to be attached to exhibits CW8A-B and DW3.
I have carefully scanned through the entire length and breadth of the Written Addresses of both parties and none of the parties made any submission regarding exhibits CW8A-B and DW3. That being the case, I take it that parties are no longer desirous of objecting to these exhibits.
In any case, I have looked at the said exhibits, and while exhibit CW8A-B is a copy of the claimant’s letter of appeal dated 19th October, 2009 and addressed to the MD of the Defendant, exhibit DW3 is a bundle of documents being copies of Emirates Airline tickets and other sundry travel documents. I am of the view that these exhibits being relevant to this case were properly admitted and the court shall countenance them in this judgment. I so find and hold.
A brief recap of the facts of this case has earlier been made in this judgment, but just to add that, in the bid to prove his claims before the court, the Claimant testified for himself as CW. The witness who swore with the Holy Bible and spoke in English Language introduced himself as Moses Captain Mina of Trinity Close, Off Airforce Expressway, Eliogbolo Layout Port Harcourt, Rivers State. The witness then adopted his statements on oath which were made on 3rd September, 2015, 29th January, 2016 and 30th May, 2018.
The witness informed the court that, he was employed by the bank of the North Limited on 8th of February, 2000, but with the merger of the bank with other banks on 2nd of March, 2006 he was offered new appointment by the defendant and transferred from Azikiwe Road Branch Port Harcourt to Mission Road Branch in Benin City, Edo State where he served as the Branch Service Manager but was subsequently promoted to the rank of Bank Officer during the 2008 Annual Appraisal Exercise.
According to the witness, he was given letter of suspension from duty on 12th of June, 2009, and while serving the suspension he received letter of summary dismissal dated 8th September, 2009. That these disciplinary actions were on the bases of allegation of fraudulent foreign exchange transaction against him and the Fund Transfer Officer due to the ‘exception on a foreign exchange’ raised by the Defendant’s Resident Internal Control Officer of Mission Road Benin Branch of the Defendant. That he responded to the exception which relates to Personal Travel Allowance transaction which he oversaw as the Branch Service Manager. That contrary to the provision of chapter 12 paragraph 10(b) of the Defendant’s Employee Handbook, the Internal Control Officer of the branch forwarded a report to the Managing Director’s office without any reference to her immediate boss in the region with an allegation that her life was threatened by the CW.
CW further informed the court during his evidence-in-chief that upon receipt of the letter of suspension, himself and the Fund Transfer Officer proceeded to Abuja on 17th June, 2009 and appeared before a panel set up by the defendant and headed by one Alhaji I.T. Mohammed.
That after the panel heard them, they were informed that the panel was only concerned with the allegation of threat to the Internal Control Officer which was not the basis of his suspension from office. That his subsequent dismissal from service by the Defendant did not comply with chapters 12.8, 12 paragraph10 and 12 paragraph 12.7(b) of the Defendant’s Employee Handbook.
That the provision of the Collective Agreement relied upon in dismissing him from service is not part of the defendant’s Handbook and also not part of the terms of his employment. That since he suffered untold hardship beyond monetary compensation, the Defendant should be made to pay him his entitlements in line with the contract of employment agreed upon by the parties.
The Defendant on its part called one Rosemary Ejougha Odofori, the Relationship Manager of the defendant at Yenagoa branch who was the Resident Control Officer of the defendant’s branch at Mission Road Benin Edo State when the events that spurred the instant suit took place. The witness who testified as DW swore with the Holy Bible and spoke in English Language. She adopted her statement on oath which was made on 21st of June, 2018.
The witness informed the court vide her statement on oath that the Defendant’s Mission Road branch Benin Edo State started Foreign Exchange transaction on the 5th of May, 2009 with the supply of One Hundred Thousand U.S. Dollars ($100,000.00) from the Central Liabilities Operation Department, and immediately the supply was received, the claimant and the Foreign Exchange officer of the Department sold out Seventy Six Thousand U.S. Dollars ($76,000.00) as Personal Travel Allowance (PTA) to a single customer (Alhaji Armed Abdu) from Lagos who had opened an account in the branch the same date (6th May, 2009) with the sum of Ten Thousand Naira (N10,000.00) and with incomplete documentation and the claimant approved the transaction contrary to the Defendant’s banking policy. The witness listed the outstanding account opening documents as means of identification, references, utility bill and visitation. That on the same date (6th May, 2009), the claimant as the Business Service Manager processed 19 applications at Four Thousand U.S. Dollars ($4,000.00) each totaling Seventy Six Thousand US Dollars ($76,000.00) which were all submitted by Alhaji Armed Abdu who had single handedly completed the deposit slips for each of the applicants and collected the whole amount meant for the 19 applicants.
According to DW by the Foreign Exchange Operational Procedure Guideline/ Policy such transactions ought to be done personally by the applicant who is to submit valid passport with relevant visa and international return ticket before such application could be considered but the claimant who had just attended the Bureau De Change (BDC) transaction training at Central Liabilities Operations in Lagos before the incident refused to follow due process while carrying out the transaction.
The witness further informed the court that, when she discovered the anomaly she immediately raised an alarm and then issued to the claimant an exception dated 7th May, 2009, which the claimant responded to and admitted allowing an agent to conduct the transactions on behalf of the applicants contrary to the Central Bank of Nigeria Foreign Exchange Policy which the claimant was aware of. That contrary to the Claimant’s assertion, there was no allegation of jealousy and victimization either by her or any officer of the defendant against the Claimant.
DW further told the court that, the claimant was given adequate opportunity to defendant himself because both the Claimant and the Foreign Exchange Officer appeared before the defendant’s panel set up by the Management and asked questions in respect of the transaction. That the Claimant’s summary dismissal complied with the Employee’s Handbook and the Collective Agreement.
In order to decipher whether the Claimant’s dismissal followed due process in line with the terms of his employment, it will be apposite to reproduce exhibit CW2 which is the summary dismissal letter for better appreciation of its contents.
Ref: UB/HCMD/ERU/NBA/SDL/08.09.09
September, 8 2009.
Captain Mina Moses(01502)
Unity Bank Plc
Mission Road Branch
Benin.
Dear Sir,
SUMMARY DISMISSAL
We further write concerning our memo of June 12, 2009 in which we conveyed Management’s decision on your suspension from duty, pending investigation and determination of your case on fraudulent Foreign Exchange transaction at Mission Road Branch, Benin on May 6, 2009.
Following the investigation carried out on the case, it has been established that, while you were the Branch’s Service Manager, you fraudulently approved the disbursement of funds in total breach of policy and procedure in foreign exchange transaction.
Based on the above, Management has approved your Dismissal from the Bank’s services with immediate effect in line with Article 4 sub-section iv(a)(i) of the Collective Agreement.
You are therefore, requested to handover your ID Card and any other Bank’s properties in your possession to the Regional Manager, Yola Region upon receipt of this letter.
Sincerely,
AUTHORISED SIGNATURE
The core of the claimant’s case before the court and as energetically argued by his counsel is that the defendant did not comply with the provisions of the Employee Handbook (exhibit CW7) in dismissing him from service and that the provisions of the Collective Agreement (exhibit DW2) relied upon by the Defendant do not form part of the terms of his contract with the Defendant.
I have gone through the provisions of Chapter Twelve of exhibit CW7 and it is evident that the said Chapter titled “Code of Conduct and sanctions” provides for definition of offences, types of offences and the disciplinary procedures to be followed in sanctioning an employee. It is manifest from exhibit CW2 (the letter of summary dismissal) reproduced above that, the Claimant was dismissed pursuant to Article 4 sub-section iv(a) (i) of the Collective Agreement (exhibit DW2).
The pertinent question in the circumstances of this case is whether exhibit DW2 (the Collective Agreement) forms part of the terms and conditions of the Claimant’s contract with the defendant. The learned counsel to the Defendant reproduced the provisions of Article 4 sub-section iv(a)(i) of exhibit DW2 and submitted that, the summary dismissal of the Claimant was properly carried out.
The position of the law regarding the enforceability of collective agreements have been numerously stated in a legion of cases in this country, and it is the law that for such an agreement to bind an employee, it must be incorporated either expressly or impliedly into the employee’s contract of employment. See the case of The Rector, Kwara State Polytechnic & Ors. V. Mr. Ola Adefila & Ors (2006) LPELR-8248(CA) where the Court of Appeal put the legal principle aptly thus: “Where a collective agreement is embodied or incorporated in the conditions of a contract of service whether expressly or by implication, it will be binding on the parties. See Adekeye, JCA in Daodu v. U.B.A. Plc (2004) 9 NWLR (Pt. 878) Pg. 276 at 293. In that case her Lordship also held that the terms of contract of service whether statutory or under common law is the bedrock on which an aggrieved employee must found his case. In a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights or obligations of the parties. Amodu v. Amode (1990) 5 NWLR (Pt. 150) Pg. 356; WNDC v. Abimbola (1966) 2 SCNLR 21; (1966) 4 NSCC 172 were referred to. Also, in Texaco Plc v. Kehinde (2001) 6 NWLR (Pt. 708) Pg. 224 at 239-240 it was held that where a collective agreement is incorporated or embodied into the conditions or contract of service, it will be binding on the parties. If it is not incorporated, it is not binding. In that case, it was held that the collective agreement which is not incorporated into the contract of employment suffers the fate of all such collective agreements, to wit: it cannot ground a cause of action being a gentleman’s agreement.” See also Union Bank of Nigeria Plc V. Emmanuel Aderewaju Soares (2012) LPELR-8018(CA), and Friday U. Abalogu V. The Shell Petroleum Development Company of Nigeria Limited (2017) 10 ACELR 62 at 87.
I have gone through exhibit CW4A-C (the Letter of appointment issued to the claimant by Unity Bank Plc), exhibit CW5A-B (the offer of appointment issued to the claimant by Bank of the North Limited) and exhibit CW7 (the Employee Handbook), and found out that none of these exhibits made reference either expressly or impliedly to the provisions of any collective agreement as forming part of the terms of the claimant’s contract with the Defendant. In fact exhibit CW4A-C clearly stated in paragraph 2 that, where the claimant violates any of the Bank’s code of conduct outlined in the Employee Handbook the disciplinary procedure laid therein would apply accordingly; and paragraph 5 of the said exhibit CW4A-C states that, “other terms of this offer are as contained in the Bank’s Employee Handbook, which shall be made available to you.”
It is therefore clear that contrary to the position taken by the defendant, the collective agreement (exhibit DW2) was at no time made part of the terms of the contract entered into between the parties in this suit. I do not therefore think that the defendant was right in dismissing the claimant summarily from service pursuant to exhibit DW2 which was not part of the terms of the claimant’s contract of employment. Exhibit CW7 has adequate provisions for disciplining any erring staff, and I cannot fathom why the Defendant jettisoned the Employee Handbook for the Collective Agreement. I therefore hold that having not embedded the collective agreement (exhibit DW2) into the terms of the Claimant’s contract, same was not binding on the parties and the defendant was wrong to have relied on same to summarily dismiss the claimant from service. I so find and hold.
I have perused the alleged collective agreement (exhibit DW2) and discovered that, the said document started from page 11. What then happened to pages 1-10? No explanation was given as to the whereabouts and contents of the missing pages. Also, apart from the stamp of the defendant’s No. 10 Azikiwe Road Port Harcourt office (ostensibly for certification), there is nothing in the document to indicate that it is in respect of employment with the defendant. There is no indication as who the parties to the agreement are; the agreement is not dated; and throughout the agreement I cannot find a single place where the defendant’s name is mentioned. The Agreement only mentioned two groups (Banking Group and Insurance Group) without any indication that these groups belong to the Defendant.
I do not therefore think that exhibit DW2 is worthy of any credibility and none shall be ascribed to it in this suit. The law is now banal that, an undated and unsigned document is nothing but a worthless document and should not be given any credibility or probative value by a court of law. See George Ikeli & Anor V. Terungwa Agber (2014) LPELR-22653(CA) and Chief Sunday Effiong Udo & Ors. V. Chief Sunday Kofee Essien & Ors. (2014) LPELR-22684(CA).
The point must be made that, what is being considered in this judgment is not whether the claimant committed the act of fraudulent disbursement of funds in breach of policy and procedure in foreign exchange transaction as clearly stated in exhibit DW1 (the CBN Foreign Exchange Manual) or not. The Defendants tendered exhibits DW3 which is a bundle of documents comprising of Emirates Airline flight tickets, entry permits of United Arab Emirates, copies of international passports and other sundry documents belonging to different persons ostensibly to show that the claimant contravened the provisions of the Foreign Exchange Manual (exhibit DW1) hence his summary dismissal by the defendant. The point being considered is whether in dismissing the claimant from service the defendant complied with the terms of the employment entered into by the parties.
I say this because in law where a contract is not covered by any statutory provision, that is where the employment does not have statutory flavor, the employer can terminate the employment of an employee with or without any reason so long as the terms of the contract are strictly adhered to. See the case of Simeon O. Ihezukwu V. University of Jos & Ors. (1990) LPELR-1461(SC) where the apex court stated that, “where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis.” See also Samson Babatunde Olarewaju V. Afribank Nigeria Plc (2001) LPELR-2573(SC), and Gabriel Ativie V. Kabel Metal Nig. Limited (2008) LPELR-591(SC).
While I completely agree with the Defendant that the act of fraudulent dealing in foreign exchange just as the allegation against the claimant in this case is a conduct that can undermine the trust between the employee and the master, and such distasteful act attracts summary dismissal from service, the employer must ensure that the terms of employment regarding disciplinary procedures must be followed. Alas, in this case the defendant completely jettisoned the disciplinary procedures outlined in exhibit CW7 and relied on exhibit DW2 (collective agreement) which is not part of the terms of the claimant’s employment. In the case of P. C. Mike Eze V. Spring Bank Plc (2014) 3 ACELR 39 at 52 – 53, the Supreme Court stated thus on what will warrant a summary dismissal:
“In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See Boston Deep Sea Fishing Co.v. Ansel (1888) 39 Ch. D339; Babatunde Ajayi v. Texaco Nigeria Ltd & Ors. (1987) 3 N.W.L.R. (Pt. 62) 577. And gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss the employee. See Ridge v. Baldwin (1953) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599. To warrant a summary dismissal, it suffices that the conduct of the employee, as in the present case, is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee as found by the trial court and affirmed by the court below.”
I am therefore of the considered opinion that, going by the evidence on record, the claimant has proved that his summary dismissal from service was not in line with the terms of his employment. I so find and hold.
Having looked at the reliefs in the Claimant’s Final Written Address I must express my displeasure with the learned Claimant counsel’s attitude of urging the court to grant reliefs that were never pleaded by the Claimant. Relief Nos. 4, 5 and 6 of the Written Address were not part of the reliefs sought by the Claimant in his pleadings. Those reliefs only formed part of the Proposed Further Amended Statement of Facts annexed to the Claimant’s application for amendment filed on 23rd September, 2019 after the Defendant had filed its Final Written Address in the suit. The application was argued on the 2nd of December, 2019, and in a considered Ruling delivered on the 6th of December, 2019 the court refused the application and directed parties to proceed with the adoption of their respective Final Written Addresses.
To surreptitiously and without leave of court include such reliefs in the Final Written Address is nothing but setting a trap for this court, and this court is wise enough to avoid such ensnarement.
Having held that the Claimant’s dismissal was wrongful, the claimant’s reliefs ‘a’ and ‘b’ are hereby granted. The last relief which is relief ‘c’ is for an order of specific performance/reinstatement and the payment of the Claimant’s salaries in the sum of N4, 200, 000.00 (Four Million Two Hundred Thousand Naira) only per month from 8th September, 2009 until judgment is delivered. The Claimant did not show the court that he worked for the defendant from 8th September, 2009 as being claimed. This not being an employment with statutory flavor, the Claimant is not entitled to salaries for the period he did not work for the defendant. See Adekola Oluwakemi Funlola V. C & M Exchange (2016) 64 NLLR (PT. 228) 553 at 574 – 575.
With regard to the aspect of relief ‘c’ asking the court to hold that the Claimant’s employment is still subsisting, it is the law that unless in employment with statutory flavor, the court cannot order for specific performance. For employments without statutory coloration as the instant case, specific performance can only be ordered where that is clearly provided for in the terms of employment, and there is nothing of such in the Claimant’s terms of employment. The rationale for this is that the court cannot foist a willing worker on an unwilling employer. See Patrick Ziideeh V. Rivers State Civil Service Commission (2007) LPELR-3544(SC); Mr. Kunle Osisanya V. Afribank (Nigeria) Plc (2016) 7 ACELR 55 and Bernard Ojeifo Longe V. First Bank of Nigeria Plc (2015) 5 ACELR 37 at 61. Relief ‘c’ is therefore refused.
In the circumstances of this case, I am of the considered opinion that having declared his summary dismissal to be wrongful, the Claimant should have been entitled to the amount equivalent to the notice the defendant ought to have given him as stipulated in the agreement which by Chapter 14.1.1 of exhibit CW7 (the Employee Handbook), the period of notice for the position of the claimant as a Bank Officer is two (2) months notice in writing or payment in lieu. But alas, the claimant failed to plead his salary prior to the dismissal, and it was during cross-examination that he informed the court that his salary prior to his dismissal was reviewed to the sum of N4, 200, 000.00 (Four Million, Two Hundred Thousand Naira only) per annum, and N385, 000.00 per month. Neither the letter of salary review which he said was given to him nor any document was tendered by him to show the court his salary prior to his dismissal from service. This court can therefore not conjecture or speculate what the salary of the claimant was, the Claimant having failed to prove same.
The claimant has not claimed any relief either by way of damages or any other entitlement in this suit. It is the law that the court not being a Father Christmas cannot grant a relief that was not claimed. For a party to be awarded a relief he must not only plead the said relief but must adduce evidence showing his entitlement to the relief pleaded/claimed. See Nze Nathaniel Dike V. The Attorney-General and Commissioner for Justice, Imo State & Ors. (2012) LPELR-15383(CA), and Alims Nigeria Limited V. United Bank for Africa (2013) LPELR-19768(SC).
It is unfortunate that having declared the Claimant’s summary dismissal to be wrongful, this court’s hands are tied and cannot grant any monetary relief since none was pleaded and proved by the Claimant. The claimant is clearly the architect of his own misfortune going by the nature of his pleadings and the reliefs sought in this suit.
In the final result, this suit succeeds in part only to the extent that the Claimant’s summary dismissal was wrongful.
Since award of cost is at the discretion of the court, cost of N200,000.00 (Two Hundred Thousand Naira only) is awarded in favour of the Claimant.
Judgment is entered accordingly.
Hon. Justice P. I. Hamman
Judge
APPEARANCES:
- F. Olunwa Esq. for the Claimant
Juliana Amachree Esq. for the Defendant
