IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MARCH 12, 2018
SUIT NO. NICN/LA/13/2013
BETWEEN
Mr Asuquo Archibong
Claimant
AND
Wema Bank Plc
Defendant
REPRESENTATION
Damola Sodeinde, for the claimant.
Lanre Omisore, with Matthew Mordi, for the defendant.
JUDGMENT
1. The claimant commenced this action vide a complaint dated and filed on 11th January 2013 together with the statement of claim, list of witness(es), deposition on oath of the claimant, list of documents and copies of the documents; marked at the trial as Exhibits C1 to C10. By the statement of facts, the claimant is claiming against the defendant the following reliefs:
(1) A declaration that the purported dismissal of the claimant vide a letter dated 21st of March 2011 from the services of the defendant is irregular, wrongful, null and void.
(2) An order reinstating the claimant.
(3) An order directing the defendant to pay all arrears of salaries, emoluments and entitlements due to him as a result of the purported dismissal.
(4) The payment of the sum of N10,000,000.00 (Ten Million Naira) only as general damages to the claimant for wrongful termination of his employment with the defendant via dismissal letter of 21st March 2011 with the attendant emotional and mental torture which said dismissal cause the claimant.
(5) An order of perpetual injunction restraining the defendant and/or its agents or by whatever name called from harassing intimidation and violating the claimant’s rights.
(6) The sum of N500,000.00 (Five Hundred Thousand Naira) as cost of the action.
2. In response the defendant filed several processes including an amended statement of defence dated 9th February 2016, a witness statement on oath, list of documents to be relied upon, as well as several exhibits; marked at the trial as Exhibits D1 to D15. In reaction, the claimant filed a reply to the amended statement of defence and an accompanying deposition on oath. The defendant also filed a further and better affidavit, dated the 2nd July 2016 and attached to same the full Extract Report of the Disciplinary Committee dated the 24th February 2011 i.e. Exhibit D12(a).
3. At the trial, the claimant testified on his own behalf as CW, while the defendant called one witness, Mr. Kehinde Buari, who testified as DW. At the close of trial parties filed and served their respective written addresses. The defendant’s final written address was filed on 7th March 2017, while the claimant’s was filed on 14th June 2017. The defendant’s reply on points of law was filed on 21st June 2017.
THE CASE OF THE CLAIMANT
4. From the pleadings, the case of the claimant is that he was employed on 15th February 2007 on probation by the defendant and confirmed on 24th December 2008 as a Senior Banking Officer, but did not enjoy any salary increase upon the confirmation. That he was the Resident Auditor of the defendant in its Makurdi Branch from 2007 to 2010 with one of his functions being to distribute MENU for the defendant’s operators. That he had on 2nd November 2007 opened a teller menu for Eneoche Udele with a user’s ID-ENEOCHE.MAK, and she signed the access from in acceptance. On 30th November 2009, the claimant again created another menu for Eneoche Udele with user’s ID-ENE.MAK, which she also signed the access form in acceptance and same can be accessed on the Globus in the data base of the defendant. That fraud was detected in the Makurdi branch of the defendant in May 2010 and three persons i.e. Akinola Adeniyi (Akinola.Mak), Amity Agi Ijuwo and Anima Lawrence upon investigation were discovered to be involved in the fraud which makes it self evident that the claimant was innocent of all the spurious allegations leveled against him by the defendant.
5. To the claimant, when the defendant’s investigating officer for the fraud came to Makurdi, he asked the claimant about the staff using user’s ID-ENE.MAK and he told him it was Eneoche Udele and her name was also confirmed on the Globus and that except she reveal her password to someone, no one can know her password; and if any allegation should spring up on the usage of the user menu only the user can be held accountable. That the investigating officer called Eneoche Udele and she was confronted with the fraud, but she denied it and said the claimant must have colluded with one NYSC member called Godswill Enehikhare in order for to put her in trouble. That the investigating officer requested from the claimant the form Eneoche Udele filled, but that at the time the form was not available. That the investigating officer did not give him time to look for the form; instead the investigating officer told him he will accept the version of Eneoche Udele, and even threatened him with arrest, which is the practice of the investigating officer. That he gave a temporary adjusted form that he could lay hands onto the investigating officer pending when the original can be found. That he was called to report at head office in Lagos where he was queried on the adjusted form. That he told the defendant’s officer in Lagos to allow him go to Osogbo and come back with the missing form that he had found in order to clear his name but the defendant’s officer refused and shut him out and reached a conclusion without giving him fair hearing. That he was then take to Alagbon Police Station where he was detained for 3 days before he was released on bail. That at Alagbon, he met Godswill Enehikhare, the NYSC member, and he told him how he used the menu ENE.MAK occasionally and the password which was given to him by Eneoche Udele. That after his release from detention, he told the defendant what the NYSC member told him and asked the defendant to crosscheck from the story from the NYSC member himself, but they never did.
6. The claimant went on that the Makurdi branch of the defendant has never had a functional printer since 2007 to print call over reports, which would have aided the detection of fraudulent acts on time; and had shortage of staff thus necessitating the use of NYSC members. That he drew the attention of the defendant to this state of affairs at the branch during two of the BCO Exception Reports he sent to the defendant covering the periods of 1st to 31st December 2008 and 1st to 31st March 2009. That since joining the defendant, he had been diligent, hardworking and pro-active in his duties, a major reason the defendant even transferred him to Osogbo branch where the responsibilities are even higher. That the defendant set up a disciplinary committee to look into the said fraud and practically charged him for forgery of menu creation form and gross addiction of his responsibilities leading to fraud committed against the Benue State Account. That the disciplinary committee abandoned the latter allegation, but came to the rather curious conclusion on the former that same was committed to implicate Eneoche Udele. That he appeared at the disciplinary committee where he was questioned as to his involvement in the fraud, and he established his innocence. However, that he was amazed on 21st March 2011 when his services with the defendant was terminated vide a dismissal letter; and that the defendant did not pay him his salaries from January to March 2011. That, through his lawyer, he wrote to the defendant asking it to reverse its decision and pay him his salaries but to no avail; hence this suit.
THE CASE OF THE DEFENDANT
7. The defendant on its part denied breaching the terms and conditions relating to increase in salary as stated by the claimant especially as the offer letter did not state that salary will be increased upon confirmation of appointment; and that the claimant was dutifully paid all his salaries and emoluments as he is entitled to. The defendant maintained that the claimant fraudulently created the teller menu dated 30th November 2009 on behalf of Eneoche Udele without her knowledge by altering the signature of the access form to suit that of Eneoche Udele. To the defendant, the fraud carried out against Benue State Government Expenditure Account totaled N7,685,767.03. That at the time the investigative officer came to Makurdi, the claimant has already altered the users ID-ENE.MAK and it was subsequently confirmed on the globus because the signature had been manipulated and fraudulently altered by the claimant. That the defendant;s investigation showed that Eneoche Udele was not aware of the fraud due to the reason that the users ID-ENE.MAK dated 30th November 2009 was fraudulently created by the claimant without her consent. That the claimant negligently created sensitive user menu that could facilitate the fraud such as giving the inputter menu of the branch in Makurdi to an NYSC corper named Godswill Enehikhare knowing fully well that such is not the policy of the defendant giving vital sensitive position to corp members. Also that the fact that the claimant was not able to produce the original form he said was filled by Eneoche Udele in respect of users ID-ENE.MAK simply means that same was fraudulently manipulated by him; or that there was never any original form as same was a fraudulent act orchestrated by the claimant. In any event, that there is nothing in the banking world known as an adjusted form; for which the defendant queried the claimant. The defendant wondered how come a form that should have been found in Makurdi was not so found but surfaced in Osogbo. The defendant continued that its investigation revealed that the claimant has previously assaulted Eneoche Udele on several occasions by harassing her sexually with series of text messages but was unsuccessful. To the defendant, the claimant in the course of the investigation and in his statement to the Police confessed that he forged the extract using Mrs Eneoche Udele’s signature.
8. The defendant went on that as Branch Control Officer (BCO), the claimant had the duty to make every complaint to the defendant;s head office, which he did not, whether orally or in writing. The defendant denied receiving any BCO Exception Reports covering the periods 1st to 31st December 2008 and 1st to 31st March 2009 from the claimant. The defendant further denied that the claimant was diligent or dutiful in his job; rather, that the claimant, because he was running a full time programme in one of the institutions in Makurdi, was most of the time not available in the office thus compromising his job to suit his personal endeavours. The defendant acknowledged that in order to give the claimant fair hearing, it set up an independent disciplinary committee to look into the fraud that took place in the Makurdi branch office, which committee found the claimant liable for an act of gross misconduct relating to the fraudulent transfer of funds totaling N7,685,767.03 from Benue State Government expenditure account in Makurdi branch office of the defendant. That it was because of the outcome of the report of the disciplinary committee dated 24th February 2011 that the claimant was dismissed. On the failure to pay the claimant salaries for January, February and part of March, the defendant stated that this was because the claimant was suspended without pay during the period of investigation; and that because of the dismissal, the claimant is not entitled to salary for the said period. Accordingly, that the claimant’s case should be dismissed.
THE SUBMISSIONS OF THE DEFENDANT
9. The defendant submitted four issues for determination:
(1) Whether or not the claimant on the facts and evidence before this Court has established that his dismissal from the defendant’s employment is irregular, wrongful, null and void.
(2) Whether or not the claimant can be reinstated back to the employment of the defendant.
(3) Whether or not the claimant is entitled to the sum of N10,000,000.00 (Ten Million Naira) as damages.
(4) Whether or not the claimant has established his case before this Honourable Court.
10. In arguing issue (1), the defendant submitted that under cross-examination, the claimant as CW conceded the following points:
• That it was part of his duties as the Resident Control Officer (RCO) of the defendant bank to prevent, detect, and report any fraud in the Bank.
• That there was a fraud on the Benue State Government expenditure account to the tune of N7,700,000.00.
• That he did not detect the fraud. The fraud was detected by the auditors of the Benue State Government.
• The detection of fraud was one of his major duties and he failed is that duty thereof.
11. To the defendant, whilst it was the claimant’s duty as the RCO to prevent any fraud in the defendant bank he failed in that duty. Thus he did not prevent or detect the fraud that happened under his watch. That under cross-examination, the claimant conceded and denied that he could not prevent the fraud because the defendant bank was short staffed; the inescapable conclusion being that the claimant was woefully negligent. Furthermore, that upon the discovery of the fraud, the defendant set up an Internal Committee to conduct a thorough investigation of the fraud. The claimant under cross-examination gave evidence that he appeared before the Committee, and gave both oral and written testimony. The Committee consequent upon the internal investigation recommended that the claimant be dismissed, referring to Exhibit D12(a). That the claimant has not in his pleadings or evidence in this entire case challenged the recommendation of this Committee; and there is no claim or relief before this Court asking this Court to set aside the findings of the said Committee, nor is the present suit an action in judicial review. The defendant then submitted that in the absence of any claim before this Court to set aside the findings of the Committee, the said findings stand unchallenged. Consequently, the claimant’s claim for wrongful termination cannot succeed, and so must fail.
12. The defendant went on that for a claim and or relief for wrongful dismissal to succeed in this case, a claim setting aside the findings and recommendation of the Disciplinary Administrative Panel set up by the defendant must be before this Court. That there is no such claim before this Court. There are no facts before this Court to challenge the findings of the Panel, and certainly no evidence whatsoever was called on this point, referring to UBN Ltd v. Ogboh [1995] 2 NWLR (Pt. 380) 647 SC at 669, UBN Plc v. Emmanuel A. Soares [2012] 29 NCLR 329 at 343 and Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9), as well as the claimant’s letter of “Offer of Probationary Employment” (Exhibit D1) and clauses therein with regard to misconduct and termination. That the defendant clearly had the power to summarily dismiss the claimant for misconduct. That in the absence of a complaint or challenge of the recommendations of the Disciplinary Committee as contained in Exhibit D12(a) in this case, the said recommendations should be accepted as unchallenged and same be fully accepted by this Court. Lastly, that where an employee complains that his employment has been wrongfully terminated, that employee has the onus to prove the wrong by placing before the Court the terms and conditions of the contract of employment and prove in what manner the said terms were breached by the employer. That the claimant has woefully failed to plead and proving how the terms of his employment were breached; as such, the claimant’s claim for a declaration that his dismissal was irregular, wrongful, null and void has not been established in this case and same must fail.
13. Issue (2) deals with reinstatement. Here, the defendant submitted that a Court of law cannot impose an employee on an unwilling employer; as such, the claim for reinstatement must fail, referring to NITER Plc v. Akwa [2006] NWLR (Pt. 964) at 397, Godfrey Isievwere v. NEPA [2002] 13 NWLR (Pt. 784) at 423 SC.
14. Issue (3) deals with arrears of salaries and the payment of damages. Relying on the claimant’s offer of probationary employment (Exhibit D4), the defendant submitted that the claimant is not entitled to any arrear of salaries. That the claimant was summarily dismissal for gross misconduct, under which circumstances the claimant is clearly not entitled to any arrears of salaries, emoluments and or entitlements. Furthermore, that the defendant established by direct and credible evidence the fraud on the Benue State Government Account to the tune of N7,700,000.00. That the claimant is certainly not entitled to any outstanding salaries and his negligence was established at the administrative panel.
15. On the issue of damages, the defendant submitted that the claimant did not establish before this Court any damage that he suffered; and that apart from a claim for alleged general damages in the sum of N10,000,000.00 (Ten Million Naira), the claimant did not establish by evidence proof of the said claim. That under cross-examination, the claimant could not establish what damages he suffered. That a claimant must establish by credible evidence any claim for general damages before a Court. That in civil cases, the burden of proof is on the party who asserts a fact to prove same, referring to Mr Andy Onwunalu v. Dr Emmanuel Ude [2010] 2 NWLR at 585, Balogun v. Labiran [1988] 2 NWLR (Pt. 80) and Olusesi v. Oyelusi [1986] 3 NWLR (Pt. 31). That the claimant has pleaded no particulars of the damages he suffered nor did he present any evidence to back up this claim, relying on NBC Plc v. Oresanya [2009] 16 NWLR (Pt. 1168) at 568. That the evidence before this Court shows clearly that a fraud was committed. The defendant set up an Administrative Panel to conduct a thorough investigation. The claimant appeared before the Panel and also submitted written memoranda. Furthermore, that the claimant has not challenged the decision of the said Committee nor has he proved before this Court what wrong he suffered. That in the absence of any proof, this Court cannot grant any sums as general/damages. That pleadings without evidential substantiation do not help a plaintiff’s case. This is because while pleadings are assertion of facts, evidence is very essential for the proof thereof. That the burden is, therefore, on him who asserts to prove; and the claimant has a duty to prove his claim for general damages in the sum of N10,000,000.00 (Ten Million Naira) before this Court.
16. The defendant continued that the apparent basis for the claim for damages is the attendant emotional and mental torture which the Claimant says he suffered by his dismissal. That the claimant in his pleadings and evidence laid before this Court did not given any details or particulars of this claim. No evidence was lead to support a claim of mental and emotional torture. No evidence was led and no documents in support of such a claim has been placed before this Court. That even in the case where an employee is able to establish that his appointment was wrongfully terminated, which the claimant has failed to do here, the only damages that such a claimant would be entitled to would be what was due to him for the period of notice, referring to Isievwere v. NEPA [2002] 13 NWLR (Pt. 784) 424 and Edet v. MTN Nig Ltd [2014] 49 NL.R (Pt. 161) 208.
17. Issue (4) deals with whether the claim for an order of perpetual injunction has also not been proved. To the defendant none of the elements for the grant of a perpetual injunction are present in this case, nor is the same frankly relevant, urging the Court to refuse the said claim. Also that the claimant did not put any evidence before this Court on his claim for N500,000.00 (Five Hundred Thousand Naira) as costs of this action. In conclusion, the defendant submitted that the claimant has not established by credible evidence his claim before this Court, urging the Court to dismiss this claim.
THE SUBMISSIONS OF THE CLAIMANT
18. The claimant on his part submitted five issues for determination:
(a) Whether the claimant has proved upon the facts before the Court that his dismissal from the defendant’s employment was irregular, wrongful, null and void.
(b) Whether or not the claimant is entitled to all salaries, emoluments and entitlements due to him as a result of the purported wrongful dismissal.
(c) Whether the claimant is not entitled to be reinstated to the services of the defendant.
(d) Whether an order of perpetual injunction restraining the defendant and or its agents from harassing, intimidating and violating the claimant’s rights is not proper in the circumstance.
(e) Wether the claimant is not entitled to damages in the sum of N10,000,000.00 (ten Million Naira).
(f) Cost of this action in the sum of N500,000.00 (Five Hundred Thousand Naira).
19. To the claimant, under cross-examination, he was able to assert that the fraud of N7,700,000.00 committed against the Benue State Government could not have been prevented owing to:
– The absence of a functional machine/printer within the bank which was needed to do call-over jobs that would have aided in detection of any fraud.
– The Bank was grossly understaffed and this resulted in one staff doing more than one job function which resulted in the breach of the call-over-rule, which was a form of check and balance for employees of the Bank.
– There was constant network failure at the Bank which caused a lot of backlog of transactions; these issues were duly communicated to the head office on a monthly basis to Mr. Abiodun Farombi the former boss of the claimant.
– Mr. Esan Ojo, the investigating officer who covered the fraud from its inception to the police station and back at the head office, cleared the claimant and went further to recommend that he be transferred to a bigger branch in Oshogbo where he would be able to function optimally.
– Subsequently in December 2010 the claimant was not only transferred to Wema Bank Oshogbo Main branch, he was given greater responsibility by clearing cheques for 14 branches of the defendant and personally supervising an excess of 4 Billion Naira Worth of assets.
– The Teller Menu the claimant is being accused of using to commit fraud on the Benue State Government was created on 30th November 2009 while the fraud against the Benue State Government occurred on 19th November 2009. That the claimant could not, however, locate the form due to his constant visits at the police station concerning the fraud suspect he arrested.
– Asserted that the need for multiple menus which served different purposes was to meet up with the understaffing at the defendant’s Makurdi Bank.
20. The claimant went on that the defendant amended its list of witnesses from that of the investigation officer, Mr. Esan Ojo, to one Mr. Kehinde Buari who, as DW under cross-examination, conceded to the following:
• When it was put to him why the claimant was not immediately dismissed from the service of the defendant DW claimed that he was transferred to Oshogbo Branch for his safety; when in fact the claimant was a suspect of fraud, the logical thing to do would have been to suspend or dismiss such a staff yet he was transferred and given greater responsibilities to handle.
• When put to DW what role he played in the instant case he claimed to be the head of the investigation and also claimed all reports on the investigation were reported to him to evaluate the situation. He admitted he never once appeared at the police station nor was he ever present at the claimant’s Bank in Makurdi, he never interviewed the claimant at any stage of the investigation and he was not even present at the sitting of the defendant’s disciplinary committee, nor was his opinion sought in any capacity by the defendant before the claimant was found guilty. He was also unable to state the names of the perpetrators of the crime against the Benue State Government.
• When DW was asked why the claimant was dismissed from the services of the Bank, DW claimed that the claimant created a second teller Menu for fraudulent purposes, when it was further put to him he claimed the menu was used to commit fraud against the Benue State Government. This is obviously inaccurate since the menu the claimant was accused of perpetrating fraud with, Ene.Mak Menu, was created on 30th November 2009 while the fraud occurred on 19th November 2009.
• DW said the claimant never sent exception reports to the head office and was always absent from the bank because he was running a master’s program at one university. Sending of reports was the primary duty of the claimant; and if he never sent any reports why was he not sanctioned. The claimant had long finished with his masters program before joining the services of the defendant.
• DW admitted that the perpetrators of the Benue fraud were arraigned in Court and were presently facing prosecution. DW further admitted that the perpetrators worked alongside the claimant as at the time the fraud occurred. And when asked why the claimant was not arraigned alongside the perpetrators he could not give an answer nor could he give an answer as to why he was not implicated by the perpetrators.
21. The claimant then submitted that the evidence given by DW is nothing more that hearsay, referring to section 37 of the Evidence Act, Okereke v. Umahi [2016] LPELR-40035(SC) and Buhari v. Obasanjo [2005] 13 NWLR (Pt. 941) 1 at 317, where it was held that hearsay evidence either oral or documentary is inadmissible and lacks probative value. That DW obviously was spoon fed all he came to testify about and DW is not even the head of the investigative unit as he claimed.
22. The claimant proceeded to address the issues he submitted for determination. Regarding issue (a), it is the claimant’s contention that his dismissal was marred with so many irregularities and thereby should be deemed irregular, wrongful null and void. That the defendant set up a shady body (defendant’s disciplinary committee) that was bent on finding the claimant guilty and the defendant never afforded the claimant the opportunity to be heard fairly, and that for a dismissal of an employee based on allegation of crime to stand the allegation must first be proved. The claimant then referred the Court to UBA Plc v. Oranumba [2014] 2 NWLR (Pt. 1390) CA, Olatubosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR (Pt. 80) 25, Savannah bank Nig Plc v. Fakokum [2002] l NWLR (Pt. 749) 544 and Yussuf v. Union Bank [1996] 6 NWLR (Pt. 457) 632. To the claimant, the defendant summarily dismissed him from its services for gross misconduct vide its letter of summary dismissal dated 21st March 2011 and the findings of the disciplinary committee found the claimant guilty of act of fraud and forgery. That the defendant has clearly stated the reason why the claimant was dismissed and the onus is on the defendant to prove that the claimant is actually guilty of the accusations leveled against him, referring to UBA Plc v. Orumba [2013] 37 WRN 90 CA.
23. The claimant then asked two questions, namely: Was the claimant guilty of fraud or any misconduct as stated by the defendant’s disciplinary committee and can this Court accept the outcome of the committee decision? Was the defendant (sic) given fair hearing as enshrined in section 36 of the 1999 Constitution? On whether the claimant was guilty of fraud or any misconduct as stated by the defendant, the claimant answered in the negative, and gave the following grounds:
(1) The claimant created three teller menus for Eneoche Udele at different times to serve different job functions; ENEOCHE.MAK in 2007 (Paying Cashier Menu), ENE.MAK created in 2009 (Account Menu) and ENE2.HAA (Administration Menu) in line with the directions of the Branch Manager, Akinola Adeniyi.
(2) The Teller Menu created on 30th November 2009 (Account Menu), ENE.MAK, has nothing to do with the fraud committed against the Benue State Government which took place on 19th November 2009 as opposed to the assertions of the defendant that a fraud was committed with ENE.MAK and those involved in the Benue State Government fraud case have been charged to court.
(3) Once a user ID is saved on the Glo Bus system it cannot be altered. The investigating officer, Mr Esan Ojo, confirmed on the Computer system that Eneoche Udele is the bearer and user of teller Menu ID ENE.MAK and same was adjusted at the instance of the investigative officer. The claimant was not called or questioned on the adjusted form until close to three months after the adjustment.
(4) By virtue of the claimant’s position as an auditor the claimant does not have access to input or authorize transactions and he does not have access to staff passwords.
(5) The claimant sent exception reports monthly stating the challenges facing the bank.
(6) The defendant’s head office employed corpers. The claimant never assigned any sensitive duties to any corp member nor did he create any menu for corpers. The defendant failed to investigate the fact that it was Eneoche Udele that gave the corper access to her password on the menu so he could help her clear backlogs.
(7) The disciplinary report of the defendant’s body of inquiry said the claimant was not guilty of sexually harassment yet the defendant in its pleadings maintained that the claimant is guilty of sexual harassment.
(8) The defendant claimed the reason the fraud was committed was because the claimant was never around and running a full time programme at a University in Makurdi, whereas the disciplinary report of the defendant never mentioned the existence of any University programme and this is clearly an afterthought on the part of the defendant.
24. The claimant went on to refer to Samson Babatunde Olanrewaju v. Afribank Nigeria Plc [2001] NWLR SC 109/96, which held that where the dismissal of a servant is based on criminal charge or allegation such allegation must be proved before the dismissal can stand; and then submitted that the defendant’s act of summary dismissal was irregular in the sense that the defendant after the conclusion of the investigation did not suspend, terminate, sanction or summarily dismiss the claimant but rather transferred him to a different branch in his capacity as an employee carrying out activities/services on behalf of the defendant and in line with his job description. Also referred to is Garuba v. University of Maiduguri [1986] 1 NWLR (Pt. 18) 550. To the claimant, judicial powers are not vested in investigative panel set up or established by employers; therefore, any purported exercise of judicial powers by such panel is a denial of the right to fair hearing under section 36(1) and (4) of the 1999 Constitution. That the defendant has failed to show how the claimant has been guilty of any act of misconduct, forgery and fraud nor has it shown how the acts of the claimant caused the fraud against the Benue State Government. That the steps taken after the investigations had been carried out clearly imply he was still considered competent to work as an employee of the defendant. That the claimant vide his exception reports complained and made recommendations that would have helped prevent the fraud.
25. On whether the defendant gave fair hearing as enshrined in section 36 of the 1999 Constitution, the claimant submitted that the mere fact that the defendant claimed to give the claimant a chance to defend his case is not necessarily enough to engulf the principles of fair hearing. That the question this Court is expected to ask is what degree of fair hearing was accorded to the claimant in this instant case. To the claimant, the right of fair hearing means being tried by an unbiased tribunal, which is the conner-stone of justice and should be applied in any situation, whether judicial or quasi-judicial. That fair hearing implies the right of a party to know what is being urged against him, what evidence or statements have been made concerning him and is entitled to the opportunity to correct or challenge them. That fair hearing is not only a common law right but also a contractual right, citing Abereola v. Toye [2013] WRN l14, Salami v. UBN Plc [2011] 8 WRN 130 CA, University of Calabar v. Essien [1996] 10 NWLR (Pt. 447) 255 at 262, Dingyardi v. INEC [2010] MJSC 1 Vol 6 – 7. That the defendant is relying on the extracts of its disciplinary committee and the response filed by the claimant as its basis for giving the defendant fair hearing.
26. On what the principles of fair hearing ascribe and how was this constitutional right was breached by the defendant, the claimant submitted that in his pleadings he stated that the findings of the disciplinary committee be set aside for the irregularities that flowed from its decision. That the claimant was not allowed to tender the evidence that would have cleared him of the trumped up charges at the hearing of the disciplinary committee. That the defendant disciplinary committee never made reference to the claimant’s reply to the query issued against him. That if the defendant committee had judiciously considered the response, the claimant would never have been dismissed. That the defendant clearly had no intention of affording the claimant the chance to defend the allegations against him and is obviously being a judge in its own case. The claimant then submitted that the defendant has failed to adhere to the principles of fair hearing and its disciplinary body’s decision marred with irregularities; restating that the claimant’s dismissal was wrongful, irregular, null and void, and such should be set aside by this Court. The claimant the referred to Victino Fixed Odds Ltd v. Ojo [2010] MJSC (ratio 4), Abereola v. Toye [2013] 4 WRN 14 and Olafimihan v. Nova Lay Tech Limited [1998] 4 NWLR (Pt. 547) 608 to 611.
27. Issue (b) deals with the entitlement of the claimant to be paid all his salaries and emoluments as a result of the purported dismissal. Having stated that his dismissal was irregular, wrongful, null and void, the claimant submitted that the remedy available to him is award of salary for the period of notice, and other legitimate entitlements due to him at the time his employment was brought, citing Shena Security Co Ltd v. Afropak (Nig.) Ltd & ors [2005) 4 – 5 SC (Pt. II) 117, Osisanya v. Afribank (Nig) Plc [2007] 6 NWLR (Pt. 103) 565 and Ifeta v. SPDC of (Nig) Ltd [2006] 32 WRN 1; [2006] 5 NWLR (Pt. 985) 585; [2006] All FWLR (Pt. 314) 305. It is the claimant’s contention that since his was wrongful, he is entitled to payment for all the months of the purported dismissal as well as all salaries since his dismissal. That he was fully active as an employee during his stay at Oshogbo for the month of January, February and March and as such should be remunerated in full accordingly. That the claim of the defendant that he was under suspension should be totally disregarded as such amounts to a ploy to withhold sums lawfully due to the claimant. That the defendant in its amended statement of defence dated 9th February 2016 in paragraph 22 asserted to the transfer of the claimant. That he was transferred to Oshogbo branch but the defendant said that he was suspended, That there was no clause to this effect in the transfer letter and the letter of employment transferring a staff still indicates that he was still under the service of the defendant. The claimant then referred to Longe v. First Bank of Nigeria Plc [2010] MJSC Vol 2 – 3 on the meaning and nature of suspension as well as Abalone v. Shell [2003] Vol 10 MJSC. That the defendant did not give any notice nor was the claimant paid any salary and as such he is, therefore, entitled to his salaries and other entitlements. That the question before this Court is whether the dismissal can be deemed valid even though the defendant did not in any way state that the claimant was on probation when or after transferring him. That accordingly at the time of the transfer the claimant was still a staff of the defendant.
28. Issues (c) and (d) i.e. the claims for respectively reinstatement and perpetual injunction were abandoned by the claimant.
29. Issue (e) is whether the claimant is entitled to damages. To the claimant, his claim for the sum of 10 million Naira as damages is for the emotional and mental torture caused by his wrongful dismissal. That he was subjected to series of humiliation after he was wrongfully dismissed; he has since lost his marriage, he had to change his residence due to his inability to pay his rent and he had to relocate his children from private to public schools. That he was deceived by the defendant who transferred him after concluding investigations, only to summarily dismiss him without just cause. That he was offered a job within the time frame when he was allegedly on probation and could have easily accepted the job offer but he was under the impression that his employment was secure under the defendant. That the defendant was obviously playing with his livelihood by not notifying him of the situation while he was working at the Oshogbo branch of the defendant. Thus, that his claim for damages is not only proper but justifiable since he was not guilty of the allegations against him nor was he even properly dismissed as guided by the principle of contract of employment without statutory flavour, referring to UBN v. Astra Builders [2010] Vol 2 – 3 MJSC Ratio (4). The claimant then urged the Court to use its discretion to see that the claimant does not unduly suffer for errors of the defendant given that the facts of the case clearly show that the acts of the defendant were calculated at making the claimant suffer unjustly.
30. Issues (f) relates to the claim for cost. All the claimant submitted here is that having proved his dismissal was wrongful, he is thereby entitled to the cost of this action. That this case was instituted in 2013 and up till date the claimant has been diligent in his prosecution of this case and certainly is entitled to cost of this case. The claimant then concluded by submitting that not only has he successfully shown how his dismissal was wrongful, he has also proved that the acts of the defendant were maliciously carried out and that he was not in any way negligent in carrying out his duties towards the defendant while he was in the employment of the defendant Bank. He accordingly asked that all payments/entitlements due to him should be paid to him as a result of the wrongful dismissal and cost awarded.
THE DEFENDANT’S REPLY ON POINTS OF LAW
31. In reacting on points of law, the defendant submitted in response to issue (i) of the claimant that the competence of the decision of the Disciplinary Committee set up by the defendant to investigate the allegation leveled against the claimant was not raised by the claimant vide his pleadings and, therefore, the issue cannot be raised at the stage of address. That the reason why the courts do not pay heed to attempts to give evidence at the stage of address is not far-fetched. This is because the evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial court. That the veracity of the claim made by the claimant as regards the decision of the Disciplinary Committee in his final written address was not raised in the course of trial or pleaded; as such, it was not subjected to cross-examination thereby robbing the Court of the opportunity to determine whether the testimony has any probative value, citing Dim v. Enemuo [2009] 10 NWLR (Pt. 1149) at 364. The defendant, therefore, urged the Court to discountenance the argument of the claimant in this regard.
32. The claimant had argued that upon the suspicion of him for fraud, the only logical thing to do would have been to suspend him. To the defendant, this line of thought is speculative at best. That it is trite that the Court can make inferences or analytic deductions from certain given facts and situation. However, the position of the claimant as per this line of argument is speculative and is mere variant of imaginative guess, referring to Savannah Bank Nig Plc v. CBN [2009] 6 NWLR (Pt. 1137) 237 at 255. That the claimant under cross-examination admitted to being suspended and one wonders why so much emphasis is being laid by the claimant that he was transferred when he had clearly admitted to being suspended. That in Dim v. Enemuo (supra) at page 359, the Court held that the rules of Court and evidence relieve a partner the need to prove what is admitted, citing Aromolaran v. Oladele [1990] 7 NWLR (Pt. 162) 359 at 368 and Effanga Effiom Henshaw v. Effanga Essien Effanga [2009] 11 NWLR (Pt. 1151) 65 at 72.
33. On the issue of not being afforded fair hearing, the defendant restated that the claimant had ample opportunity to make a representation at the Panel and did indeed put up a defence before the Disciplinary Committee proper. In any event, that the claimant never pleaded infraction regarding fair hearing in his pleadings and never led evidence in support of same in his case, urging the Court to disregard that line of argument put forward by the claimant under his issue (i).
34. The defendant went on that it is a gross misnomer to assert as the claimants did that his dismissal by the defendant was irregular because after the conclusion of investigation the defendant did not suspend, terminate or summarily dismiss him. To the defendant, no rule of law, statute or practice supports the claimant’s contention and indeed none was referred to by claimant in his argument. That the report of the Disciplinary Committee is before the Court as an exhibit and the statement contained therein speak for itself without the defendant attempting to twist the report.
35. Furthermore, that the assertion by the claimant that DW upon being asked why the claimant was not arraigned alongside the perpetrators could not give an answer is an attempt to mislead the Court as DW clearly stated that he was negligent in his handling of his duties.
36. On the issue raised by the claimant that the evidence of DW amounts to hearsay, it is the defendant’s submission that when the question was put to him by the claimant’s counsel as to what was discovered during the opening of the Menu, DW stated thus: “we discovered it as created in another name”. That this statement is in addition to the fact that it was the team that investigated the anomaly in the opening of the Menu.
37. That it is untrue the claim that DW was unable to state the names of the perpetrators of the crime against Benue State Government. That DW mentioned to the hearing of the Court. The following names: Amiti Ijuwo, Akinola Adeniyi and Lawrence Ajima. That the claimant’s claim is an attempt to mislead the Court.
38. The defendant went on that the body of the argument of the claimant in his final written address is merely an attempt to have a second bite at the cherry; and an attempt to give evidence at the stage of address, which is unknown to law, as it has been held in plethora of cases that address of counsel is not a substitute for evidence however convincing or persuasive it may be, referring to INEC v. Action Congress [2009] 2 NWLR (Pt. 1126) 524 at 575 and Chime v. Ezea [2009] 2 NWLR (Pt. 1125) 263 at 294 – 295. In conclusion, the defendant urged the Court to dismiss the case of the claimant.
COURT’S DECISION
39. After a careful consideration of the processes filed and the submissions of counsel, I note that the claimant abandoned his issues (c) and (d). This is tantamount to abandoning reliefs (2) and (5). I so hold. Accordingly, reliefs (2) and (5), having been abandoned, are hereby dismissed. This leaves out reliefs (1), (3), (4) and (6), which respectively are for a declaration that the claimant’s dismissal is irregular, wrongful, null and void; the claim for salaries, emoluments and entitlements due to the claimant as a result of the dismissal; the claim for general damages; and the claim for cost. Before addressing these reliefs (the issues the claimant framed simply followed the reliefs he claims), it is necessary to resolve a thing or two.
40. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). In this wise, the argument of the defendant in its reply on points of law that to the effect that the testimony of CW cannot be relied upon on ground of inconsistency as in one breath when the question was put to him if it was his duty to detect fraud in the Branch he worked as Resident Control Officer (RCO) he admitted that it was his duty to detect it but not to prevent it, yet when he was asked if it was his duty to prevent fraud he said it was not his duty to detect fraud, cannot stand in a reply on points of law as the defendant is attempting to reargue its case and bring in what it forgot to advance in its final written address. I so hold.
41. There is the issue of the admissibility of Exhibits C6 and C7, which are BCO Exception Reports. Exhibit C6 is the BCO Exception Report of 1st to 31st December 2008, while Exhibit C7 is the BCO Exception Report of 1st to 31st March 2009. Both documents are not signed. As Reports they ought to be signed. The law is that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 and Sarai v. Haruna [2008] 23 WRN 130. And by Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA), an unsigned and undated document has no evidential value. Since Exhibits C6 and C7 ought to be signed but are not signed, their authorship and authenticity are doubtful; as such, they have no evidential value and so would be discountenanced for purposes of this judgment. I so hold. What this, therefore, means is that, relying on Exhibits C6 and C7, the assertion by the claimant that he drew the defendant’s attention to the absence of a functional printer since 2007 to print call over reports, which would have aided the detection of fraudulent acts on time, and the shortage of staff thus necessitating the use of NYSC members, all in the Makurdi branch of the defendant, goes to no issue as it is unsubstantiated. I so find and hold. It also means that the denial by the defendant of receiving any BCO Exception Reports covering the periods 1st to 31st December 2008 and 1st to 31st March 2009 from the claimant stands and is sustained. I so find and hold.
42. Relief (1) is for a declaration that the purported dismissal of the claimant vide a letter dated 21st March 2011 from the services of the defendant is irregular, wrongful, null and void. Because relief (1) seeks for a declaration, the burden is on the claimant to prove his entitlement to it. However, the dismissal letter (Exhibit C8) is titled, “Summary Dismissal”; and in the first paragraph states thus: “In line with the terms of your Contract Agreement with this Bank, Management has decided to summarily dismiss you from the services of the Bank with immediate effect for an act of gross misconduct”. The nature of the act of gross misconduct was not disclosed in the said Exhibit C8. The law is that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 551 CA, Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC), George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (W.A.) Co. Ltd [1961] 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317. This means that it is for the defendant to justify the said act of gross misconduct said to have been committed by the claimant to warrant his summary dismissal; and gross misconduct is that which is of grave and weighty character as to undermine the confidence which exists between the employee and the employer or conduct which works against the deep interest of the employer. See Ante v. University of Calabar [2001] 3 NWLR (Pt. 700) 239 CA.
43. Exhibit D10 dated 1st February 2011 is a query served on the claimant by the defendant regarding the subject matter, “Fraudulent Transfer of Funds Totalling N7,685,767.03 from Benue State Government Expenditure Account (114410915635130) in Makurdi Branch on November 19, 2009”. In this query, the defendant posed 12 questions (a to l) for the claimant to respond to, which response is to be immediately forwarded to Adekunle Onitiri, Head, Special Review & Investigation. Exhibit D11 also dated 1st February 2011 is the claimant’s response to the query. The questions posed to the claimant related to the creation of menus and the authorization for such creations. Question (f), for instance, is: “What can you say about the menu Ene.Mak and for who was it created for?” The claimant answered thus: “Ene.Mak was created for Eneoche Udele to use as Account officer’s menu since Branch had no Account officer. There was Head office instructions that all Branches should have account officer then”. Question (g) then followed: “was the owner aware of its creation?” To this, the claimant had no answer and he gave none; jumping instead to answering question (h). What the claimant answered as (g) relates, not to question (g), but to question (l), which asked for any other comments on the issue. Not satisfied with the claimant’s answers, the defendant set up a disciplinary committee. Its report dated 24th February 2011 is Exhibit D12(a). The disciplinary committee had as observers representatives of the trade unions, ASSBIFI and NUBIFIE. The claimant acknowledged appearing before the disciplinary committee, but that he established his innocence at the disciplinary hearing. At page 4 of Exhibit D12(a), the charges against the claimant are forgery of menu creation form; and gross abdication of his control responsibilities leading to the fraudulent withdrawal of N7.7m from a customer’s account. The elements of the charges were creation of multiple profiles in the name of key officers of the branch with intention of giving access to bank’s application to unauthorized persons; failure to closely monitor the activities of the branch operators which led to fraudulent withdrawal of N7.7m from Benue State Account; and failure to report the compromise of profiles at the Branch by operators and excesses of the BSM and TTL as regards the frivolous specie expenses. The disciplinary committee rejected the responses of the claimant, which responses are in terms of the facts already pleaded and deposed to by the claimant and found that the claimant was highly incompetent as a Resident Control Officer (RCO) for saying that he was not sure whether the Branch Operators were using police escort for cash movement; he defeated the essence of his existence in the branch as a RCO as he ought to have made exception reports to Head, ICU on a weekly basis in respect of faulty police escort vehicle which hindered the branch in using police escort for almost a year; the RCO was guilty of forgery in a bid to implicate Eneoche Udele; and the RCO abdicated his control duty by failing to promptly report the case of frivolous specie expenses against Eneoche. The disciplinary committee accordingly recommended that the claimant be summarily dismissed. The defendant accepted this recommendation, hence the dismissal of the claimant vide Exhibit C8.
44. To the extent that the claimant was queried, he answered the query, a disciplinary committee was set up and he appeared before the disciplinary committee, the question of not being afforded fair hearing does not arise. This is because fair haring is about opportunity being given to be heard. So once a Court makes a finding that the employee was given ample opportunity to defend himself/herself on the allegations in issue, then such an employee cannot complain of not being given fair hearing. See Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt. 928) 650, Ziideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1, A. R. Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 508 CA at 527, Benedict Hirki Joseph v. First Inland Bank Nig Plc [2009] LPELR-8854(CA), Gukas v. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614, Imonikhe v. Unity Bank Plc [2011] LPELR-1503(SC); [2011] 12 NWLR (Pt. 1262) 624 SC and Avre v. NIPOST [2014] LPELR-22629(CA). I am satisfied that in the instant case, the claimant was given ample opportunity to defend himself. I so find and hold. The claimant accordingly cannot complain on not being given fair hearing. I so hold. I must add, however, that the argument of the defendant that the claimant never pleaded infraction regarding fair hearing in his pleadings is false. In paragraph 15 of the statement of claim, the claimant pleaded that the defendant shut him out and reached a conclusion without giving him fair hearing.
45. On the issue of creation of menus, the defendant’s investigating officer had asked the claimant to produce the form Eneoche Udele filled. The response of the claimant was that he could not at that material time he was asked lay his hands on it; instead he produced a temporary adjusted form that he could lay his hands on. I agree with the defendant that it is curious what a temporary adjusted form is for purposes of s sensitive issue as that under consideration. The story of the claimant that he could not lay his hands on the form is just not believable. More curious is that the menus were created in Makurdi but it was in Osogbo that the claimant found the form through which the menus were created. The defendant quite rightly wondered (and this Court joins in also wondering) how come a form that should have been found in Makurdi was not so found but surfaced in Osogbo. Exhibit C5 dated 4th February 2011 is an email from the claimant to respectively three people, and copied to a fourth: Adekunle Onitiri, Esan Ojo, Kehinde Buari, and Jude Eigbiremhon. In the email, the claimant attached the “missing original access form of ENE.MAK now found”. The claimant went on to explain that “the access form was missing during the time the fraud took place in Makurdi Branch”; and that within two weeks of his “arresting fraud suspects in Makurdi amidst threat to [his] life [he] misplasced (sic) the form”. To the claimant, anybody could have misplaced anything during such periods. The claimant then apologized for what happened saying “it was a mix-up”. He concluded by “asking management to forgive [his] mistake in view of [his] great sacrifice for the Bank”. Two things stand out here: the claimant apologized for all that happened; and he asked for the forgiveness of management. This is an acknowledgment by the claimant himself that he did some wrong, for which he is apologizing and asking for forgiveness. I so find and hold. The assertion of the claimant that it is the practice of the investigating officer to threaten people with arrest is one that is not substantiated. I so find and hold.
46. The claimant also argued that at Alagbon, he met Godswill Enehikhare, the NYSC member, who told him how he used the menu ENE.MAK occasionally and the password which was given to him by Eneoche Udele; and that the defendant failed to investigate the fact that it was Eneoche Udele that gave the corper access to her password on the menu so he could help her clear backlogs. These assertions are not substantiated. The evidence of the claimant as to what the NYSC told him at Alagbon is hearsay, which is not admissible. See Obinna Osuoha v. The State [2010] LPELR-4669(CA). And the assertion that the defendant did not investigate the fact that it was Eneoche Udele that gave the corper access to her password on the menu so he could help her clear backlogs is the claimant trying to shift onto the defendant his burden of proving what he asserts. They accordingly all go to no issues; and I so hold. Also unsubstantiated is the evidence of the claimant elicited during cross-examination that in banking practice, it is possible to have two banking menus for the same person working concurrently because of gross understaffing as it is an abnormal situation; and that there exist in banking practice a temporary adjusted form. In James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016, this Court stated the law in this words:
The rule is that evidence of customary practice (and customary procedure) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in Queen v. Chief Ozogula [1962] WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors [1968] 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt.388) 142 at 165 and Orlu v. Gogo-Abite [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify.
The evidence of banking practice as to menus and temporary adjusted forms given by only the claimant cannot accordingly stand; and I so find and hold.
47. The claimant had submitted that the defendant’s act of summary dismissal was irregular in the sense that the defendant after the conclusion of the investigation did not suspend, terminate, sanction or summarily dismiss him; rather, the defendant transferred him to a different branch in his capacity as an employee carrying out activities/services on behalf of the defendant and in line with his job description. The claimant is not being truthful here. Under cross-examination, the claimant testified that for the months of January – March 2011 when his salary was not paid to him, he was on suspension. It is thus worrying that the claimant would submit that the defendant did not suspend him. In Mr Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency unreported Suit No. NICN/LA/303/2014, the judgment of which was delivered on 10th July 2017, the claimant in that case had urged this Court to note that the recommendation of the Senior Staff Establishment Committee for the dismissal of the claimant was given in September 2013, but he was not dismissed until April 2014. Meanwhile, that Article 4.4.3 of the Conditions of Service states that disciplinary proceedings for any misconduct shall be dealt with as soon as possible. The claimant then asked why the defendant did not take immediate action after the so called findings of the Committee; and submitted that in electing to retain him even after the verdict of guilty of the serious offences against him, the defendant must be read to have waived the right of dismissal and any dismissal afterwards can only be construed as a case of victimization. This Court agreed with the statement of principle that where an employer is lax in disciplining an employee, that may count against the employer, but the Court, however, did not agree that in that instant case the period between the query and the dismissal (a period of roughly 7 months) was long enough a period to come to that conclusion. The Court noted that the cases in which this statement of principle was approved and applied by this Court were cases the period of which went beyond a year. See, for instance, Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC, Mr. Lawrence Idemudia Oborkhale v. The Lagos State University unreported Suit No. NIC/LA/08/2009 the judgment of which was delivered on January 31, 2013, Lasisi Gbadegesin v. Wema Bank Plc unreported Suit No. NIC/57/2008 the judgment of which was delivered on February 23, 2012 and Mrs. Dayo Buloro v. Nigerian Institute of Public Relations unreported Suit No. NIC/LA/23/2009 the judgment of which was delivered on April 14, 2011. This Court accordingly rejected the idea that there was a condonation of the act of the claimant by the defendant as the claimant had argued.
48. Additionally, in Honourable Justice Bassey Tambu Ebuta v. NJC & 3 ors unreported Suit No. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017, this Court had cited FJSC v. Bode Thomas [2013] 17 NWLR (Pt. 1384) 503 and stated that one of the issues that arose from it relates to paragraph 030307 of the Public Service Rules, which stipulates a period of 60 days limitation within which disciplinary proceedings against any officer in the public service must be concluded. The trial court in the case had found this rule to be a mandatory provision, but which did not indicate any sanction for its breach. A subsequent finding and holding by the trial court that failure to keep to this rule infringes the right to fair hearing was upturned by the Court of Appeal as not being in consonance with the earlier finding of the trial court that no sanction was provided by the rule itself for its breach; as such, failure to observe the 60 days limitation rule did not vitiate the disciplinary proceedings. On an appeal to the Supreme Court (Bode Thomas v. FJSC unreported Appeal No. SC.228/2013, the judgment of which was delivered on 16th February 2018), although the Court of Appeal decision (in FJSC v. Bode Thomas) was upturned, the Supreme Court upheld the Court of Appeal decision as to Rule 030307. Hear the Supreme Court per Akaahs, JSC:
When the learned trial Judge x-rayed Rule 030307(xiii) of the Public Service Rules, there was nowhere it was provided that failure to observe the 60 days period would vitiate the proceedings. The logical conclusion which the court ought to have arrived at is that since the Rules did not provide any sanction for non-compliance, the period stated is directory and not mandatory. The lower court was right to intervene and set aside the finding that it was a breach of the plaintiff’s right to fair hearing because of the failure of the defendant to commence and complete the disciplinary procedure against the plaintiff within 60 days as stipulated in Chapter 3 paragraph 030307(xiii) of the Public Service Rules.
49. In line with the reasoning in these case law authorities (Bode Thomas v. FJSC, Mr Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency and Honourable Justice Bassey Tambu Ebuta v. NJC & 3 ors), I do not agree with the claimant’s intuition in the instant case that the time lapse between his investigation and summary dismissal, in between which he was not suspended, terminated, sanctioned or summarily dismissed, rather he was transferred to a different branch (Osogbo), is sufficient to brand the defendant’s act of summary dismissal as irregular.
50. The defendant had contended that for a claim and or relief for wrongful dismissal to succeed, a claim setting aside the findings and recommendation of the Disciplinary Administrative Panel set up by the defendant must be before this Court. That there is no such claim before this Court; there are no facts before this Court to challenge the findings of the Panel; and certainly that no evidence whatsoever was called on this point. Once again, in Mr Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency (supra), this Court rejected the idea that a specific relief seeking to set aside the findings and recommendations of a disciplinary committee is necessary before a dismissal can be branded wrongful. This Court reasoned that since the claimant’s case was not that the disciplinary committee report be nullified, it was not obligatory on the claimant’s part to seek the specific relief of setting aside the said report in the manner argued by the defendant. In like manner, the claimant’s case in the instant case is not that the report of the disciplinary committee be set aside but that his dismissal be declared irregular, wrongful, null and void. I do not accordingly agree with the defendant’s argument here.
51. The claimant had argued that the defendant set up a shady body (defendant’s disciplinary committee) that was bent on finding him guilty and that the defendant never afforded the claimant the opportunity to be heard fairly; and that for a dismissal of an employee based on allegation of crime to stand the allegation must first be proved. Three issues are evident are: that the disciplinary committee was shady; that the claimant was not afforded fair hearing; and the claimant cannot be dismissed because the allegation against him is a crime which must first be proved before he can be dismissed. As to the disciplinary committee being shady, the assertion of the defendant is that the competence of the decision of the Disciplinary Committee it set up to investigate the allegation leveled against the claimant was not raised by the claimant vide his pleadings and, therefore, the issue cannot be raised at the stage of address. Paragraphs 25 and 26 of the statement of claim are the two paragraphs wherein the claimant pleaded facts as to the disciplinary committee; and what the claimant pleaded was that the defendant set up a disciplinary committee to look into the said fraud and gross abdication of duty. Secondly, the claimant pleaded that he appeared before the disciplinary committee and he established his innocence. There is no where that the claimant pleaded that the disciplinary committee was shady or incompetent. I accordingly agree with the defendant that the claimant cannot raise the issue of the disciplinary committee being shady or incompetent at the address stage. The law is that a counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence. Alternatively put, no matter how brilliant a written or oral address by counsel may be attractive, that cannot take the place of solid evidence before the Court. See Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC) and Adam v. Shaibu & ors [2016] LPELR-40179(CA).
52. On the question of fair hearing, I already held that the claimant was given the opportunity to be heard; he cannot, therefore, complain about lack of fair hearing. Under cross-examination, the claimant acknowledged that the Bank set up a disciplinary committee to investigate the fraud; and that he appeared before the committee and answered all the charges placed before him at the committee. Accordingly, the fact that the claimant “appeared at the disciplinary committee he was questioned as to his own involvement in the fraud, and he established his innocence…” (paragraph 26 of the statement of claim) means that he was given fair hearing. I so find and hold. See Tunde Ajani v. Zone 4 Energy Limited & 2 ors unreported Suit No. NICN/LA/216/2016, the judgment of which was delivered on 24th May 2017.
53. The argument of the claimant that he cannot be dismissed because the allegation against him is a crime which must first be proved before he can be dismissed intuits that a conviction in a court of law is thereby required before the claimant can be dismissed. The claimant said this much when he cited cases like Garba v. University of Maiduguri [1986] 1 NWLR (Pt. 18) 550. This stance, however, represents the old dispensation. The Supreme Court in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In fact, AG, Kwara State v. Ojulari [2007] 1 NWLR (Pt. 1016) 551 CA held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case. And by Jubril v. Mil. Admin., Kwara State [2007] 3 NWLR (Pt. 1021) 357 CA, where there has been admission on commission of misconduct or crime by an employee, the need for proof before a regular criminal court no longer arises. I do not accordingly agree with the submission of the claimant in this regard.
54. On the whole, I am satisfied that the defendant has justified the summary dismissal of the claimant. This means that relief (1) is not grantable. It fails and so is accordingly dismissed. I so hold.
55. Relief (3) is for “an order directing the defendant to pay all arrears of salaries, emoluments and entitlements due to him as a result of the purported dismissal”. There is no pleading whatsoever as to what i.e. the quantum of the salary, emolument and entitlement of the claimant is in order for this Court to grant this relief. I must point out, even if as an aside, that in evidence (see paragraph 4 of the statement of claim and the corresponding paragraph 4 of the deposition on oath of the claimant), the claimant had asserted that upon the confirmation of his appointment the defendant breached the terms and conditions relating to increase in his salary as stated in his letter of employment. And under cross-examination, the claimant reiterated that he is asking for N10 million as general damages because he was unjustly sacked; and that after confirmation he was not paid his due. This assertion is of course not tenable. Exhibit C1 (also D1) dated 15th February 2007 is the offer of probationary employment. In providing for confirmation at the third to fourth pages, there is no provision that upon confirmation salary would be increased. In any event, at the fourth page under “Other Terms and conditions”, it is made pretty clear that the claimant is not entitled to annual leave, annual increment and promotion while on probation. What this means is that the claimant will only be entitled to these, that is, he will start to enjoy them, after confirmation, not immediately on confirmation.
56. The manner in which the claimant couched relief (3) is such that he hinged it on the fact of his dismissal. In other words, if this Court finds that his dismissal is wrongful, then the order for payment of all arrears of salaries, emoluments and entitlements due to him can then be made. This being so, since I made the finding and so held that relief (1) is not grantable, for which it is dismissed, there is no basis for the grant of relief (3). Here I am not unmindful of the current disposition of the law that an employee is entitled to all earnings as at the time of dismissal or termination. Alternatively put, the new dispensation is that whether termination or dismissal is wrong or not, all earnings of an employee prior to the termination or dismissal must be paid by the employer to such an employee. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC, Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & anor unreported Suit No. NICN/LA/40/2012 the judgment of which was delivered on 7th April 2016 and Adebayo Boye v. FBN Mortgages Limited unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7th April 2016. This is, however, not the case given the manner the claimant couched his relief (3). In law context is everything as Lord Steyn said in R v. Secretary of State For The Home Department, Ex Parte Daly [2001] 3 All ER 433; [2001] 1 AC 532; [2001] 2 WLR 1622; [2001] UKHL 26. And as the Supreme Court additionally puts it in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, “a claim is circumscribed by the reliefs claimed”. Relief (3) accordingly fails and so is dismissed.
57. Relief (4) is for “the payment of the sum of N10,000,000.00 (Ten Million Naira) only as general damages to the claimant for wrongful termination of his employment with the defendant via dismissal letter of 21st March 2011 with the attendant emotional and mental torture which said dismissal cause the claimant”. Once gain, this relief is hinged on the fact of the claimant’s termination/dismissal being wrongful. Since I held that the claimant’s dismissal is not wrongful, relief (4) accordingly fails and so is dismissed.
58. Relief (6) is for “the sum of N500,000.00 (Five Hundred Thousand Naira) as cost of the action”. As it is, the claimant’s case fails in its totality. The claim for cost must accordingly fail. It is, therefore, dismissed.
59. On the whole, the claimant’s case fails and so it hereby dismissed.
60. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
