Mr. Banikole Jeremiah Lekan -VS- Union Bank of Nigeria Plc.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE K. I. AMADI

DATED : OCTOBER 25, 2018 SUIT NO: NICN/LA/158/2016

BETWEEN:

BAMIKOLE JEREMIAH LEKAN – CLAIMANT

AND

UNION BANK OF NIGERIA PLC – DEFENDANT

REPRESENTATIONS:

BabatundeAdeyanjuEsq.for the Claimant

EnobongEttehEsq.for the Defendant

JUDGMENT

The Claimant brought this action by a general form of complaint and statement of facts dated and filed on the 3^rd day of March, 2016 claiming for the following:

(i) A Declaration that the purported dismissal of the Claimant from the service of the Defendant by a letter dated 12^th March, 2010 is in Breach of Rule of Natural Justice, Illegal Unconstitutional, Wrongful and Irregular.

(ii) An Order directing the Defendant to pay the Claimant the sum of N64, 800,000.00 (Sixty Four Million, Eight Hundred Thousand Naira) only as the salary of the Claimant from the 12^th March, 2010 till 23^rd January, 2018.

(iii) An Order directing the Defendant to pay to the Claimant a sum of N50, 000,000.00 being an aggravated and general damages for the unlawful termination of the Claimant’s Employment.

(iv) An Order directing the Defendant to pay interest on all the various sums above at the rate of 15% from 12^th March, 2010 until judgment, thereafter 10% of the total sums until final liquidation.

(v) N5, 000,000.00 only as cost of this action.

(vi) An order for such alternative relief or further order that this Honourable Court may make in the determination of his suit.

The Defendant in response filed its statement of Defence on the 13^th June, 2016.

TRIAL

Trial commenced on the 7^th March, 2017. The Claimant opened his case and testified by himself as CW1. Claimant tendered about eleven documents and they were admitted and marked accordingly. The Defendant opened its defence on 13^th June, 2017 and called a lone witness Mr. Lucky Umokoro. At the end parties closed their cases and filed their written addresses. The parties adopted their final written addresses on the 17^th day of May 2018, this judgment could not be delivered within the 90days window allowed for delivery of judgments for reasons which I have stated in my letter to the Chief Justice of Nigeria in that regard.

FACTS OF THE CASE

The Claimant stated that he was employed by the Defendant on the 20^th January, 1983 as a Clerical staff and rose to a position of a branch Manager by dint of hard work. That during his employment with the defendant he was never issued any query nor penalized for a wrongful conduct rather the Defendant gave him awards for outstanding performances. That through his hard work and ingenuity he turned the fortune of his branch from loss to over N50, 000,000.00(Fifty Million Naira) gain.

That sometime in 2010 he was invited by the Inspection Department of the Defendant without prior knowledge of the reason for the invitation, which turned out to be a panel. That he never knew that the questions he was asked was an investigation of a purported fraudulent or criminal act he was suspected of, the outcome which turned out to be a dismissal letter from the services of the Defendant, which letter was dated the 12^th March, 2010.

The Defendant on the other hand, contended that the Claimant while at Dopemu Branch of the Defendant got involved in series of unethical cum fraudulent acts .That is to say invoice splitting, exorbitant expenditures, illegally enriching himself by inflation of values of expenses and price of maintenance works carried out on his branch at Dopemu.

That the Claimant was issued first and final warning letter and thereafter was dismissed from the employ of the Defendant when the Claimant was again involved in further acts of gross misconduct.

ADDRESSES OF THE PARTIES

In his final written address the learned counsel for the Defendant raised two issues for determination thus:

(i) Whether the dismissal of the Claimant from the services of the Defendant is lawful, valid and in accordance with his contract of employment.

(ii) Whether the Claimant is not entitled to damages from the Defendant as per his claims before this Honourable Court.

On issue one the Learned Counsel argued that terms and conditions of contract governed the parties. That since the parties in the instant suit duly executed a contract of employment (Exhibit D8), the provisions is binding on them hence this Honorable Court should not deviate therefrom. That the dismissal of the Claimant, can only be wrongful if the dismissal was not done in compliance with the governing conditions of service and or term of employment of the Claimant. Counsel cited the case of UBN v Chinyere (2014) 40 NLLR (Pt 123) 315 CA @ 526-527.

Continuing, counsel submitted that from the foregoing the defendant has power to dismiss the Claimant on being found to have breached the provisions of his contract of services or any kind of misconduct. Counsel referred to the case of Borishade v NBN ltd (2014) 43 NLLR (Pt137) 489 CA @ 520, para G-E, 530.

Counsel further argued that the Claimant having been found guilty of gross misconduct after having first been issued with first and final warning letter was not wrongfully dismissed of his employment. Counsel referred to UBN v Soares (2012) 29 NLLR, (Pt. 84,) 343where the Court held that the conduct of an employee which constitutes gross misconduct, without much ado, attracts summarily dismissal.

Counsel further argued also that the averment of Claimant that he was not given the opportunity to defend himself of the allegation against him as he was never arrested nor prosecuted by the police was not true. Counsel referred to the Audit questions and answer sheets (Exhibit DE –DE13) wherein the investigative panel by handwritten questions and answers investigated the Claimant.

Counsel submitted that the case of CBN v Dinneh (2011) 23 NLLR (pt64)1 CA @ 50-51 is germane where it was held that “an employer in adhering to the dictate of fair hearing which is all required of it / him must still follow the procedure set down in its regulations or conditions of service in order to properly dismiss an employee against whom misconduct bordering on criminality is alleged.

And that by common law it is not a requirement to prosecute an employee in Court on accusation of gross misconduct, that the Defendant has lost confidence in the Claimant. Counsel urged this Honorable Court to find in favour of the Defendant on issue one.

On issue two, Counsel argued that since the first issue is in the affirmative the Claimant is not entitled to any money claimed nor any compensation. Counsel cited the case of NNB v. Imonikhe (2004) 1 NLLR (pt1) 149 CA @ 170.

That by virtue of the case of Okobi v Sterling Bank Plc (2013) 30 NLLR (pt86) 241 NIC @ 27damages cannot be awarded unless there is a wrong committed and to compensate the aggrieved party for the loss suffered.

Counsel argued further that termination gives the parties right to determine the contract any time when the prescribed period of notice is given. Whereas dismissal is a disciplinary measure which carries no benefit.

Furthermore, counsel submitted that throughout the service years of the Claimant with the Defendant till he was dismissed, the Defendant never owed him, his salary. Hence Courts cannot order salaries for work not done. Counsel referred to the case of Dawodu v Stanbic IBTC Bank Plc (suit No. NIC/LA/123/2014), where the court held that: An employee is not entitled to salary for work not done.

Counsel submitted that law of contract does not admit of special damages that special damages relate to tortuous liability. That no law in Nigeria recognize injured feelings, psychological trauma in awarding damages for breach of contract of employment.

Counsel submitted also that the law does not allow recovery of legal fees by the successful party, counsel referred to the case of Guinness Nig. Plc v Emmanuel Nwoke (2000) CA where the Court held that “Public policy forbids amongst others, the recovery of counsel fees by a successful party from the party that lost in a case”. Counsel urged the Court to resolve issue two in favour of the Defendant and to dismiss this case.

On the other hand, the Learned Counsel for the claimant in his own final written address submitted five issues for determination thus:

Whether the parties are bound by the terms of contract of employment and the effect thereof,
Whether the requirements to satisfy the Doctrine of Fair hearing in the determination of Claimant’s employment have been fully complied with.
Whether this Honourable Court can rely on the Defendant’s testimony in this case.
Whether the Claimant has furnished enough proof to maintain his action of wrongful termination.
In absence of any established offence against the Claimant by the Defendant whether the Claimant is entitled to the reliefs sought including damages for the breach of his terms of employment.

On issue one; Counsel argued that the contract of service (Exhibit DD-DD3) is binding on the parties, that where the contract of employment is written, the parties are bound by the express terms and conditions so stipulated. Counsel urged this Honourable Court to restrict itself to the wordings of the contract of the parties in determination of this suit. Counsel cited the cases of British Airways v. Makanjuola (1993) 8 NWLR (pt 311)276 @289 and Olaniyan v. UNILAG (1985), 2 NWLR (Pt. 9) 599@669.

That where the power to suspend or terminate an employment was by terms thereof exercise of the said power must comply with the terms of employment.

Counsel submitted that a careful perusal of Exhibit CA (letter of appointment) and DA( offer of employment) will find that they contain modus operandi for Claimant’s resignation of his employment. That nowhere therein contained any indication of dismissal or termination by the Defendant’s letter of purported first and final warning Exhibit CJ as basis for his dismissal.

On issue two, Counsel argued that where an employer dismisses an employee on allegation of misconduct the onus lies on the employer to show that it disclosed the allegation to the employee, that the employee was given fair hearing and finally, that the investigative panel adhered strictly to the laid down procedure. Counsel referred to the cases of Adebayo v. OAUTH CMB (2000)9NWLR (Pt673) 585@605, and NEPA v. Elfadi (1986)3NWLR 884,898

Counsel argued further that since the Claimant was invited to the panel without informing him the basis and or the accusation against him, and he was not allowed to bring any documents in prove of his case, his investigation was clearly in breach of the principle of fair hearing.

Counsel submitted that the import of gross misconduct as encapsulated in the case of Azenabor v. BUK (2009)17NWLR (Pt 1169) 96 C A did not apply to the case of the Claimant since the Claimant notified the Defendant of everything incidental to the alleged overshooting of the Defendant’s budget which he got approval from the Defendant. That the Defendant failed did not give the Claimant ample opportunity to rebut the accusations against him.

Counsel submitted that the dismissal of the Claimant by the Defendant without regard to the number of years and loyalty the Claimant has exhibited in Defendant’s service is wicked, especially not given Claimant fair hearing. Counsel cited Arinze v FBN (2000) 1 NWLR (pt 639) 78 CA.

Continuing further counsel argued that at the end of the investigative panel, the Claimant was not found guilty of the allegation. That what was written at the last paragraph of the report was Adv16 NOT REQUIRED which interpretation thereof counsel stated was that “there was no loss of any nature incurred” by the Defendant in this matter. Counsel urged this Court to dismiss the dismissal letter.

Counsel went further to argue that since the Defendant never informed the Claimant of the finding of the panel but went straight to dismiss him, which is an infraction of the principles laid down, in the case of Baba v NCATC (1991) 5 NWLR (pt 192) 388 SC to the effect that where an allegation amounting to crime was made by an employer against an employee the case must be reported to the police before such employer can take any disciplinary action, also that where an employer does not complain about an employee’s conduct the employer has condoned the act of the employee.

On issue three, Counsel submitted that the testimony of DW1 is hearsay evidence which run fowl against Sections 37, 38 of the evidence Act, 2011since he was not in the employment of the Defendant when the cause of action arose and was not privileged to be seized of the facts of this case.

On issue four, counsel submitted that the Claimant is free of the allegations levied against him in view of the fact that the alleged overspending of the budget was with the consent of the Defendant. Moreover, the allegation of splitting of invoice was not corroborated with any Exhibit, nor any member of the panel invited to adduce evidence in Court, Counsel submitted that in the absence of the fore- going the Claimant showed justification to institute the action in order to protect his integrity and urged the Court to so hold.

One issue five, counsel submitted that the Claimant is entitled to the reliefs sought. That an employer is duty bound to provide work for his employees failure of which the employer must pay the employee for the days he did not provide work for the employee at the same rate payable to the employee had he worked. Counsel referred this court to Section 17 (i) Labour Act; 2004.

That proper perusal of the letter of dismissal (Exhibit CB) and first and last warning letter (Exhibit CJ) will unveil that the dismissal of Claimant was not hinged on the panel’s report. Therefore the dismissal is retrospective of the allegation and panel of investigation. That by the established principle in the case of New Nig. Bank Ltd v Obevudiri (1986) 3 NWLR (pt. 29) 387 CA “ the effective date of the dismissal of an employee must be reckoned with as the date when the dismissal letter was written he is therefore entitled to all his accrued rights up to that date. His summary dismissal cannot be made retrospective.

That in event of wrongful dismissal them easure of damages is the amount the affected employer would have earned had his appointment continued according to the contract. Counsel urged this Honourable Court to apply the principle in the case of British Airways v Makomjuola to the present case.

That since the Defendant failed to justify the suspension and dismissal of the Claimant; the Claimant is entitled to his reliefs. Counsel urged this Court to find in favour of the Claimant.

COURT’S DECISION

I have read all the processes filed by the parties in this suit. The final written addresses of the parties including the Defendant’s Reply to the Claimant’s Final Written Address are hereby incorporated into this judgment and specific reference shall further be made to them where necessary. In my view, all the issues raised by the parties can be summarized into two issues for the proper determination of this case, that is; whether the dismissal of the claimant is justifiable and whether the claimant is entitled to the reliefs sought in this case. I shall therefore treat this case based on those issues as follows:

In respect of the first issue, it is settled that dismissal carries infamy and deprives the dismissed employee of benefits. Therefore in matters affecting the dismissal of an employee for whatever reason, the employer is expected to show a reason for the dismissal, a reason which the law would accept as sufficient to warrant the dismissal of the employee see Abomeli v NRC(1995)1NW LR(Pt.372)451.

In this case, the Claimant was dismissed for gross misconduct. To the Defendant, the Claimant had been issued a first and final warning and thereafter was found guilty of “other fraudulent and illegal acts which includes: splitting of invoices to circumvent control approval, vetting of invoices were not often carried out properly, payment of cash to some contractors instead of certified cheque even where they maintained account with the bank, no log book was maintained to monitor/ ascertain the service/ repair on the Defendants equipment etc” in support of the foregoing, counsel relied on Exhibits DB1-DB6(Investigative Report) and Exhibit DE-DE13(Handwritten audit question and answer sheets).

However, the Claimant claimed that he was not given fair hearing in the investigation that led to his dismissal. He pleaded in paragraphs 13 and 14 of his statement of facts as follows:

“On the 25^thof January 2010 the claimant was invited by inspection department (Head Office) and examined on Dopemu-Budget expenses
That the claimant had no knowledge that the insinuation and target of the cross-examination was to access him of fraudulent act/ criminality which by virtue of such, resulted into dismissal from the Bank services”

In response to the foregoing pleadings the defendant in paragraph 11 of its statement of defence pleaded thus:

The Defendant in answer to paragraphs 13,14,15 and 16 of the statement of facts, states that the claimant was invited and accorded fair hearing and thereafter sanctioned in line with the bank’s policy after a review of his role in the said case of ‘Report of exorbitant expenses incurred by the erstwhile Chief Marketing Officer, Mr Bamikole Jeremiah Lekan and Head Branch Operations, Mr Olasoji Gbadegesin, both of Dopemu branch between June 6, 2006 and February 2008, the said Report of 27^thJanuary 2010, is hereby pleaded and will be relied on during trial.

The case of the Claimant is that he was not given fair hearing and therefore his dismissal is wrongful .From the foregoing the following facts emerged:

The Claimant was the Chief Marketing Officer in charge of Dopemu branch of defendant from March, 2004 to January, 2008
He left Dopemu branch on January 25, 2008.
The Defendant commenced investigation on the expenditures of the said Depomu branch for the period covering 2006-2008 from November 2009.
That on January 25, 2010 the investigation committee of Defendant invited the Claimant to the head office of the Defendant.
That on arrival he was interrogated by being given an already prepared set questions to answer, which he did as in the hand written question and answer sheets Exhibit DE-DE13.

The Learned counsel for the Defendant argued that the said Exhibit DE-DE13 met the requirement of fair hearing in that the Claimant was confronted with the questions therein which he answered albeit unsatisfactorily.

However, it is the case of the Claimant that he was not accused of any wrong doing before he was given the questions and that as at the time of answering those questions was not aware of any accusations against him.

From the foregoing:

(i) I find and hold that the Claimant was not given query which would have informed him of the accusations against him.

(ii) That the Claimant was not formally informed of any accusations or allegations against him before being given the set questions to answer.

(iii) That as at the time of answering the said questions he was not aware of the purpose of the investigation and the allegations against him.

Fair hearing does not consist of hearing an accused person on the accusations against him only, rather there is a fundamental and or primary requirement that an accused person must be told of the accusation against him first and then given adequate opportunity to be heard or defend himself on the accusations, see Arinze v FBN (20104)5 SC (PT1) 170. It is obvious that at no time was the Claimant informed of the allegations against him, even when he was answering the questions he was not told of any allegations against him, his answers to the questions led to the investigative report Exhibit DB1-DB6 dated January27, 2010.

From January 2006 the period under investigation to January 2010 the date of the report is 4 years. From January 2008 (when the Claimant left that branch) to January 2010 the date of report is 2 years. How on earth can the Claimant answer the questions accurately, when confronted impromptu as in this case and without preparing for his defence over known accusations? From the foregoing, I find and hold that the Claimant was not given fair hearing in this case. I find that the pleading of the Claimant in paragraph 24 of his statement of facts that he was not “given the opportunity to defend himself” against any allegations as being true. Therefore, the Defendant has failed to justify the dismissal of the Claimant which dismissal is unwarranted and wrongful, I hereby convert the said dismissal of Claimant to early retirement; claim one has succeeded to that extent.

I shall now deal with issue two, claims II and III shall be treated together; the Claimant herein in asking for his salary from the date of dismissal to 23^rd January, 2018 being the date he ought to retire by effluxion of time and damages for wrongful dismissal. He did not work from that date of dismissal that is March 15, 2010 up to this day with the Defendant. It is trite that an employee is not entitled to salary for work not done. The Claimant is rather entitled to damages for wrongful dismissal and having converted his dismissal into early retirement he is entitled to terminal benefits. But the Claimant did not plead what he will be entitled to on retirement neither did he plead the amount he was receiving as a manager.

However, section 14 of the National Industrial Court Act 2006 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

Also Section 19(d) of the National Industrial Court Act 2006 provides that the Court may in all cases and where necessary make any appropriate order, including- an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.

In view of the foregoing, I hold that a lump sum in damages in favour of the Claimant, will meet the justice of this case, consequently, I award the sum of N3, 000, 000:00 as damages for wrongful dismissal and N4, 000, 000:00 as terminal benefits.

The Claim for prejudgment interest is refused as prejudgment interest is not contemplated by the Rules of this Honourable Court.

In sum I make the following orders:

The dismissal of the Claimant is unwarranted, wrongful and is hereby commuted to early retirement.
The Defendant shall pay the Claimant the sum ofN3, 000,000:00 (Three Million Naira) for wrongful dismissal.
The Defendant shall pay the Claimant the sum of N4, 000, 000 as retirement benefits.
The Defendant shall pay the Claimant the sum of N100, 000.00 being the cost of this case.
The Defendant shall pay all monetary awards in this judgment on or before 30days from the date of this judgment failing which they shall attract 20 % interest per annum until fully liquidated.

Judgment is entered accordingly.

…………………………………

Hon. Justice K. I. Amadi, Ph.D

(Judge)