MR. CYRIL IDAKWOJI -VS- ACCESS BANK PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 17^th day of July, 2019

SUIT NO: NICN/PHC/93/2018

BETWEEN

CYRIL IDAKWOJI CLAIMANT

AND

ACCESS BANK PLC DEFENDANT

Representations:

Tochukwu Anaba with W. Idakwoji and K.C. Kanu for the Claimant.

Etukomeni with M.E. Jonas for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 7^th of August, 2018 along with an affidavit of verification, statement of claim, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

i) A Declaration that the defendant’s seizure of the claimant’s funds, and refusal to grant the claimant access, and release to the claimant the fund being total the sum of N3.268.140.29 (sic) (three million, two hundred and sixty eight thousand, one hundred and forty naira: twenty nine kobo), held in the claimant’s Account number 0038793483 is unlawful and unjustifiable, illegal and an arbitrary conversion of the claimant’s fund placed under the defendant’s care.
ii) A Declaration that the defendant’s seizure of the said claimant’s fund, being the total sum of 3.268.140.29 (sic) (three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo), held in the said claimant’s account number 0038793483 amounts to double jeopardy, the claimant having served appropriate punishment for the crime he was accused to have committed; and accordingly the seizure is unlawful, illegal and unconstitutional.

iii) An Oder for the release by the defendant, of the sum of N3.268.140.29 (sic) (three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo) to the claimant, being the funds lawfully earned by the claimant while in the service of the defendant and being held in the said claimant’s Account Number 0038793483.

iv) An order for the computation and payment of all other emoluments including gratuitous payments cumulating from the claimant’s period of employment with the Intercontinental Bank PLC till the 22^ndof December ,2017 when the claimant’s service with the defendant was terminated.

v) An Order for the payment of the N750, 500.00 (seven hundred and fifty thousand naira) being the fees paid in lieu of legal representation in this suit.

vi) The sum of 10,000,000 (ten million naira) being exemplary damages for the defendant’s contumelious seizure of the claimant’s funds being the total of 3.268.140.29 (sic) (three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo) held in the claimant’s said account Number 0038793483.

Reacting to the claims, the defendant entered appearance on the 3^rd of October, 2018 and on the 5^th of October, 2018 filed a statement of defence that was accompanied with a counter-claim, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial. The Defendants amended the said statement of defence and counter Claim on the 7^th of February, 2019.

In opening his case, the Claimant himself, Cyril Idakwoji, was the sole witness as CW1 and he adopted his witness statements on oath marked as C1 (a) and C1 (b). Through him, 8 documents were tendered in evidence and admitted as Exhibits C2 – C9.

Arising from the statement of claim and witness statement on oath of the Claimant, the case of the Claimant is that he joined the employment of the Defendant by virtue of a successful take over and acquisition of the defunct Intercontinental Bank Plc. which was the Claimant’s primary Employer. He was issued a letter of employment on the 1^st of February, 2012 and served diligently till the 7^th of September, 2017 when he was arrested by the Agents of the Economic and Financial Crimes Commission (The EFCC) on allegations of cash suppression, diversion and manipulation of Customers’ account. He was arraigned at the Federal High Court upon which he pleaded guilty. On the 7^th day of March, 2018, the Court sentenced him to one year imprisonment with an order for the forfeiture of his properties to the Prosecution which has been used to settle the Defendant herein and the victims of the said crime. He posited that his employment with the Defendant was also terminated on the 22^nd of December, 2017 at a time he had legitimately earned the sum of the total sum of N3,268,140.29 (Three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo) which was in his salary account with the Defendant and not in the purview of the assets, properties and monies forfeited in respect of the sentence. He averred that he tried to access his account but could not do so as he was told that the “No debit order” initially placed on the Account Number 0038793483 by the EFCC was still subsisting. Upon that he directed his lawyers to write to EFCC to lift the “No debit order” on the account which EFCC did but the Defendant still refused to comply with the EFCC directive. He posited that the Defendant transferred the monies in the said account and left the account empty. Claimant added that he is also entitled to the sum of N2,500,000.00 being gratuity already accruing to the Claimant and inherited by the Defendant from the former employer on the 1^st of February, 2012. He added that the fund is invested with NLPC funds administrator at 18% per annum and it can only be accessed on the request of the Defendant. He added that the law firm litigating on his behalf is doing so on an agreement to be paid the sum of N750,000.00.

Upon cross examination of CW1, he posited that none of the documents he tendered showed how he refunded the customers that were duped. He stated that no physical cash was involved in the refund of the customers but his properties were assessed by EFCC. He posited that a staff of a bank is still entitled to his emoluments if he is dismissed on ground of theft. He admitted he is not in court to challenge his dismissal. He admitted also that from exhibit C4, which is his dismissal letter, it was clear that he cannot access his account. He also admitted that exhibit C6 came after he received exhibit C4.

Upon discharge of CW1, Claimant closed his case while the Defendant opened theirs by calling two witnesses in persons of Alexander Nwankwo as DW1 and Olusola Ijaola as DW2. Both witnesses adopted their witness statements on oath respectively marked as D1 and D2. Through DW1, 4 documents were tendered and admitted in evidence as Exhibits DW (a) – (d), while the two documents tendered through DW2 were admitted in evidence as Exhibits DW2(a) and (b).

Arising from the amended statement of defence and witness statements on oath, the case for the Defendant is that the Claimant never served the Defendant diligently as he converted a total sum of N48,173,856.00 belonging to two customers of the Defendant leading to his prosecution by EFCC and eventual sentence at the Federal High Court following which the Claimant was dismissed and no longer entitled to any benefit as claimed. The Defendant in addition posited that the Defendant is entitled to the total sum of N3,268,140.29 in the Claimant’s account which has been recovered by the Defendant as part repayment of the total sum of N48,173,856.00 which the Defendant repaid on behalf of the Claimant to the two customers of the Defendant defrauded by the Claimant and that the said N48,173,856.00 was refunded by the Defendant and not the Claimant. The Defendant posited that there is no debit order on the account of the Claimant as same is available for access. They added that they were not part of the plea bargain entered into by the EFCC and the Claimant and that the Claimant is not entitled to the claims before the court.

By way of counter Claim, the Defendant restated that the Claimant defrauded two of their customers in the sum of N48,173,856.00 which they had to refund the said customers on the understanding that the said sum will be recovered from the Claimant. However the Claimant upon his conviction merely deposited some landed properties estimated at N5,000,000.00 which in addition the recovered sum of N3,268,140.29 from the Claimant’s account leaves the Defendants to be entitled to be paid the balance of N39,905,71 5.71.

Upon cross examination of DW1, he posited that he was not a witness for EFCC nor volunteered statement for EFCC but it is part of his duty to investigate what happened as he is in charge of remedial asset but he had no discussion with the Claimant in the course of his duties. He posited that he read the judgment of the court and that he got no order to recover money.

On the part of DW2 during cross examination, he posited that he knows the claimant and that the monies misappropriated were refunded by the Bank. He admitted that the Bank reported the case to EFCC but he is not aware if EFCC handed over the proceeds upon conclusion of the matter. He posited that he became Compliance Officer in 2014 but he is well aware of the matter. He posited that Exhibit C7 is the Bank statement of the Claimant but he is not aware there was deductions from the account. He added that N48.1milion was refunded to the customers and that he is aware that judgment has been delivered in the matter but the legal department are in the best position to know the content of the judgment.

Upon the discharge of DW2, the Defendant closed their case and matter was adjourned for adoption of final addresses.

The Defendant filed their final written address on the 17^th of June, 2019 and adopted same on the 25^th of June 2019.

Arising from the said final address, counsel to the Defendant, E. Etukomeni Esq. formulated four issues for determination to wit:

(1) Whether from the totality of the evidence adduced by the Claimant, the Claimant is entitled to the reliefs sought in the Suit?

(2) Whether the Defendant has proved its Counter Claim before the Court?

(3) Whether the Claimant having been dismissed on grounds of criminal diversion, cash suppression and manipulation of customers’ account is entitled to gratuity and other emoluments as claimed by the Claimant?

(4) Whether the Claimant is entitled to the legal fees he allegedly paid to his Solicitors in conducting this Suit and exemplary damages?

In arguing issue one, counsel submitted that the Claimant in this suit has failed woefully to prove the bogus allegations contained in his Statement of Claim before the Court.

Counsel posited that it is a trite principle of law that he who asserts must prove and cited the case of OMODELE AKANJI SOMORI & 5 ORS VS. OBA N. ADEKANBI (2012) ALL FWLR (PART 622) 1776@17778 RATIO 3. Counsel then contended that the burden of proving that the Claimant’s property was forfeited to the Prosecution and the proceeds used in settling the defrauded customers is on the Claimant and to succeed in his claim before the Court, the Claimant must prove same by giving evidence to that effect.

Counsel added that the prosecution in the criminal suit against the Claimant was EFCC and there is no evidence by the EFCC before the court to prove that forfeited properties were received from the Claimant. Counsel cited section 167(1) (d) of the Evidence Act.

Counsel referred to the testimony of CW1 to posit that Claimant has not shown evidence of the total sum refunded to the defrauded customers by evidence and he did not also show the value of his alleged forfeited properties. He added that there is no evidence to show that the value of the Claimant’s property forfeited is up to the amount defrauded and there is also no evidence that the purported prosecution in Suit No. FHC/PH/160C/2017 handed over the proceeds in the alleged forfeited properties to the Defendant.

With regards to issue two, counsel submitted that the Claimant’s denial in his reply to the counter claim amounts to admission as the Defendant in paragraphs 21, 22, 23, 24, 25, 26 and 27 of the Amended Statement of Defence made positive and distinct allegations which must be specifically denied or controverted. He cited the case of A. 0. ADIBA & ANOR VS MUE MUE (1999) 10 NWLR (PART 622) 1 74@1 83 — 184.

Counsel added that in proof of the counter claim as the Defendant tendered exhibit DW2 A and B which are statements of account of RCCG Province 4 and Jephthah School, the two customers that the Claimant defrauded. Counsel posited that the law is trite that documentary evidence is the best evidence and it serves as a hanger on which oral evidence is based. He cited the case of BENDEL STATE VS. UBA LTD (1 986) 2NSCC 954@965.

With regards to issue three, counsel submitted that the Claimant having been dismissed from the Defendant, loses all his benefits be it gratuitous payments or emoluments. He added that this is so because, dismissal of an employee is a disciplinary measure which carries no benefit. He cited the case of UBN VS. SCARES (2012) 11 NWLR (PART 550) and ADEKO VS. IJFBODE DISTRICT COUNCIL (1 992) 1 SCNLR 349.

Counsel posited that the Claimant has accepted his dismissal and he is not challenging same. He added that the act for which the Claimant was convicted amounted to gross misconduct for which he can be dismissed. He cited the case of AJAH VS. TEXACO NIGERIA LIMITED (1987) 3 NWLR (PART 62) 577

With regards to issue four, Counsel contended that that the purported legal fees (Exhibit C8) does not meet the requirement of the law because having attained the standard of a receipt; it will now be governed by the Stamp Duties Act which requires such receipt to be stamped and/or liable to duty being paid on same. Counsel added that the consequence is captured in Section 89, 91 and 92 of the Stamp Duties Act Cap S8 Laws of the Federation of Nigeria, 2004.

Counsel added that it is unethical for the Claimant to pass the burden of the Solicitor’s fee on the Defendant and cited the case of SPDC VS OKONEDO (2001) ALL FWLR (PART 368) 11 04@1 1 37 — 11 38 and NWANJI VS. COASTAL SERVICES NIG. LTD (2004) 11 NWLR (PART 885).

With regards to claim for exemplary damages, counsel contended that it is trite law that damages of whatever kind are a function of liability and where the Claimant as in this case fails to establish the liability of the Defendant then such Claimant will not be entitled to the award of damages. He cited the case of MRS. ELIZABETH (NEXT OF KIN) OF CPL SYLVESTER DIKE (DECEASED) VS. SHELL PET. DEV. COY NIG. LTD (2011) 7 NWLR (PART 1246) 227 @ 224 and concluded that it is the Claimant who has done harm to the Defendant.

Counsel concluded by urging the court to dismiss the Claimant’s Claim in its entirety with substantial cost, as same is not only vexatious but scandalous and gold-digging.

Reacting to the foregoing, Claimant filed his final address on the 21^st of June, 2019 and adopted same on the 25^th of June, 2019. Arising from the said final address, counsel to the Claimant Tochukwu Anaba Esq., formulated two issues for determination to wit:

a) Whether the judgment of the Federal High Court in Suit Nos FHC/PH/16OC/2017 is not conclusive proof that the Claimant has suffered punishment for the offence and also made full repayment to the victims of the fraud committed by him in the course of his service with the Defendant?
b) Whether the Defendant can unilaterally transfer and seize funds from the Claimant’s account without his authorization or Order of Court to that effect?

In arguing issue one, counsel contended that all averments relating to whether or not the Claimant has suffered punishment and repaid the victims of the fraud he committed while in the service of the Defendant are very well established by the Judgment of Court in Suit No FHC/PH/16OC/2017—Federal Republic of Nigeria V Idakwoji Cyril Ameh & Anor being judgment delivered by His lordship A.T. Mohammed on the 7^th day of March, 2018. He added that the said judgment is relied upon by both parties and therefore need no further proof. He cited section 123 of the Evidence Act.

Counsel referred to paragraph 5 of the judgment and posited that the Claimant has by the said paragraph discharged the burden of proof placed on him under section 135 of the Evidence Act. Counsel added that the court will not admit any other or further oral evidence to contradict the content of this judgment which has been admitted by the Defendant.

Counsel also added that the Defendant cannot be heard to say that it was not part of the plea bargain that gave rise to the judgment having reported the case to the EFCC. Counsel referred to the testimony of DW1.

With regards to issue two, counsel contended that the Defendant’s act of unilaterally transferring and seizing funds from the Claimant’s account is arbitrary, illegal, unconstitutional and ultra vires the powers of the Defendant.

Counsel added that the Defendant after it engaged the EFCC to arrest, investigate and prosecute the Claimant on the allegations of fraud, it also resorted to self-help by unilaterally confiscating funds it found in the Claimant’s account outside the agreement reached between the EFCC and the Claimant which eventually was adopted as consent judgment of the Court. Counsel cited the meaning of self-help in Black’s Law Dictionary 5^th Edition at page 1220 and cited the case of MILITARY GOVERNOR OF LAGOS STATE & ORS V. OJUKWU & 4NOR (1986) LPELR3-186(SC) (P. 44, paras. A-B).

Counsel added that it is a trite principle of law that Banks cannot meddle with Customers account without express Order of Court. He added that it has been held that an Order of the EFCC upon which a Bank acted upon to freeze a customers’ account is invalid and arbitrary. He cited the case of Re: GTB V Adedamola (2019) NWLR PT 1664 PG 30 @ 43.

Counsel added that the act of the Defendant amounted to detinue and a breach of Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel also contended that the act amounted to double jeopardy citing the case of Nigerian Army V Aminun-Kano (2010) LPELR 2013 SC.

Counsel also contended that it is a flawed argument for the Defendant to insist that it is incumbent on the Claimant to call the EFCC as witness in view of the fact that the Defendant procured the services of EFCC in his prosecution and concluded by urging the court to hold that the Defendant cannot unilaterally transfer and seize funds from the Claimant’s account without his authorization or Order of Court to that effect.

He also urged the court to discountenance the arguments of the Defendant in defence and proof of counter claim while granting the reliefs sought by the Claimant.

By way of reply filed on the 24^th June, 2019, counsel to the Defendant contended that the cases of Re: GTB V Adedamola (2019) NWLR PT 1664 PG 30 @ 43 and Nigerian Army V Aminun-Kano (2010) LPELR 2013 SC. Were cited out of context and do not apply in the instant case. He added that in the instant case the Claimant is not a customer per se but a dismissed staff.

He added that section 167(1) (d) was also cited out of context because the statement of account was never in issue.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted in evidence.

I have also taken into account reliefs sought vis-à-vis the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

In consideration of the forgoing, I find it apposite to determine the substantive suit of the Claimant before addressing the counter-claim made by the Defendant and arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and the reply on point of law of the Defendant, the issues for the determination of the substantive suit are to wit:

Whether or not in view of the Judgment of the Federal High Court in Suit FHC/PH/160C/2017, the Defendant is entitled to the sum of N3,268,140.29 (three million , two hundred and sixty eight thousand, one hundred and forty naira: twenty nine kobo), held in the claimant’s Account number 0038793483 with the Defendant.
Whether or not the Claimant is entitled to emoluments and gratuitous payments upon his dismissal from the employment of the Defendant.

The foregoing issues are formulated in view of the fact that the parties are in accord in respect of the employment status of the Claimant and the fact that the Claimant upon being found to have committed certain acts of fraud which was reported to the Economic and Financial Crimes Commission (EFCC) who prosecuted same, led to the conviction and sentence of the Claimant. The parties are also in accord as to the fact that in the course of the aforementioned conviction and sentence, the sum of N3,268,140.29 (three million, two hundred and sixty eight thousand, one hundred and forty naira: twenty nine kobo), was standing in the Claimant’s Account number 0038793483 which was an account kept by the Defendant while the Claimant was in the Defendant’s employment.

The discord between the parties evolved after the eventual conviction and sentence of the Claimant which was particularly as the Claimant sought to recover the said monies in the account and his gratuity with the Defendant. The Defendant contends that they are entitled to the said monies as they have paid the customers whom were defrauded. And that the Claimant is not entitled to gratuity having been dismissed.

It is in the light of the foregoing that the formulated issues will be resolved.

In resolving issue one, I must foremost state that the issue takes into account the fact that the Claimant is seeking for two declaratory reliefs relating to the seizure of the said sum of N3,268,140.29. In this regard, it is trite law that the burden of proof is heavily on the Claimant to prove that he is entitled to the declaratory reliefs notwithstanding the weakness of the case of the Defendant. In that light, the court in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held that:

“It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See: AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).

In attempt to comply with the requirement of the law, the Claimant tendered Exhibit C3 which is the Judgment Order of the Federal High Court issued on the 7^th of March, 2018; Exhibit C5 which is a letter written by the Claimant’s lawyer to the Economic and Financial Crimes Commission on the 8^th of May, 2018 for the release of the Claimant’s fund in Banks which were frozen in the course of investigation and prosecution; ExhibitC6 which is a letter written by the Claimant’s lawyer to the Defendant to demand for the lifting of ‘no debit order’ placed on the Claimant’s account and Exhibit C7 which is the Claimant’s statement of account from first July 2017 to 31^st May 2018 to establish how the sum of N3,268,140.29. was withdrawn from his account by the Defendant.

Before I evaluate the foregoing evidence in relation to the Claim of the Claimant and the defence put up by the Defendant, I must state that issue one also places a particular focus on the judgment delivered by the Federal High Court on the 7^th of March, 2018 in suit FHC/PH/160C/2017 which was the suit wherein the Claimant in this case was prosecuted for defrauding two customers of his employer (the Defendant).

while I reckon that the judgment was in respect of a criminal case, of which the Defendant was apparently not a party but can be said to be the nominal complainant having reported the case to the Prosecution i.e. the EFCC, I find it apposite to consider the implication of the judgment delivered in the said criminal case on the instant civil suit. This is because the Claimant has posited that upon being sentenced through a plea bargain that had him forfeit his properties which were used to refund monies to the victims of his fraud and same has been captured in the said judgment, it is unjustifiable, illegal and an arbitrary conversion for the Defendant to further seize his money in an account kept with them for the purpose of the same refund to victims of the fraud.

The question which would naturally arise is whether the Judgment of the Federal High Court has laid the issue of paying monies to the victim to rest, not minding the fact that the Defendant was not directly a party to the criminal case. To make such finding, I proceed to evaluate the evidence before this court and I start with the content of the Judgment Order admitted as Exhibit C3.

In view of the evaluation, it must be said that the law is settled that generally, the content of a judgment of a court cannot be contradicted or varied by oral evidence before this court. In this regard, the Evidence Act via section 128 states that:

“When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”

It is upon the foregoing that the content of the said judgment is considered by this court to ascertain what was decided by the Federal High Court in relation to refund of monies to victims of Claimant’s fraud. While I find from the CTC of the Judgment Order tendered by the Claimant as Exhibit C3 and by the Defendant as DW1A, that the background to the judgment was that the prosecution and the Claimant settled for a plea bargain which was entered as judgment of the court, for sake of clarity, I find it apposite to reproduce paragraph 4 and 5 a, b and c of the Judgment Order issued by the court on the 7^th of March, 2018 which states thus:

I view of the plea bargain entered by the prosecution and the Defendant, the Defendant as contained in the agreement dated 5^thday of March,2018 as per Defendant plea of guilty to the Amended Charge dated 5^thday of March, 2018.(sic).
the terms of the Judgment are:

(a) the convict is hereby sentenced to one year imprisonment from August 2017.

(b) that the Defendant have agreed with the prosecution to forfeit two set of two bedroom and three bedroom apartment situate and being at Ali Akpu Ogologo, Rumuekine Town, Obio Okpor LGA, Rivers State, Hyundai Tucson Jeep with registration number NCH-307 KC Rivers State and five plots of land situate and being at umuakuneme Farm Land Umembe Irete, Oweri Imo State to Access Bank Plc.

(c)That in all, the Defendants has refunded the total sum of N47,386,012 (forty seven million, Three hundred and Eighty six thousand, twelve naira) and same has been given to the victims involved in this case. (emphasis mine).

The wordings of the foregoing are very clear and unambiguous and where such is the case, the duty of the court is merely to make a pronouncement. In this wise, the court in Amasike v. Registrar-Gen., C.A.C. (2006) 3 NWLR (Pt.968) Pg. 462 posited that:

“The duty of a court is to interpret the words the author of a document has used. Consequently, where in their ordinary meaning, the provision of a document are clear and unambiguous, effect should be given to such provisions. See Plateau Investment and Property Development Company Ltd. v. Philip Ebhota & Ors. (2001) 4 NWLR (Pt. 704) 495 at 518 para. C. City Engineering (Nig.) Ltd. v. Nigeria Airports Authority (1999) 11 NWLR (Pt.625) 76; A.-G., Bendel State v. A.-G., Fed. (1982) 3 NCLR 1 Per PETER-ODILI, J.C.A (as she then was) (Pp. 53-54, paras. E-C).

Before I give effect to or make pronouncement of the said judgment, I must state that I have taken a look at Exhibit C7 which is the statement of account of the Claimant with the Defendant and I find that as at 22^nd of December, 2017, the balance in the account was N3, 550, 514.65. Some deductions were made on the account by the Defendant on the 26^th and 28^th of February, 2018 and a lodgment on the 25^th of April, 2018 which eventually left the account with the sum of N3,268,140.29. However, by 24^th of May, 2018 the said sum was withdrawn from the account with the narrative that it is for “part recovery in respect of N48,173,856.11 fraudulent diversion of customer’s funds- Jephthah and RCCG accounts by Cyril Idakwoji” the said withdrawal left the account with 0.00 balance as at 31^st May, 2018. This piece of evidence clearly shows that the Defendant truly converted the said sum of monies in the Claimant’s account with the intent to use same to refund the victims of the Claimant’s fraud.

The question is whether in the face of the paragraph paragraph 5 (c) of the judgment which states that the sum of N47,386,012 has been refunded to the victims involved in the case, the Defendant can still convert the monies in the Claimant’s account for the same purpose. The answer to this is clearly in the negative.

I reckon the contention of the Defendant that it was not part of the case and the plea bargain and that it has made payment to the said victims by tendering exhibit DW2A. I have also considered exhibit DW2A and DW2B which is a statement of account which indicates payments made to RCCG and Jephthah School made between September and November 2017. In this regard, I must state that in the face of the judgment of the court delivered on the 7^th of March 2018, the Defendant made such payment on its own volition as it was made in the course of a pending suit.

The victims of the said fraud can validly lay claim for the refund pursuant to the said judgment which would raise the question of whether in the face of the judgment, the victims should be paid twice?

In addition, I find that the Defendant was the nominal complainant in the said suit having admitted to being the one who reported the case to the EFCC and admitted via DW2 that the Defendant was aware there was a suit in that regard as some of the representatives of the Defendant gave evidence.

I also find that the judgment also specifically states in paragraph 5(b) that the forfeited assets of the Defendant are to be given to Access Bank Plc. (the Defendant in the instant case) under the plea bargain. This is not a coincidence, rather it establishes the fact that the Defendant was well aware of the judgment and its implication.

In addition, the said sum of N3,268,140.29. which was in the Claimant’s account on the 25^th of April, 2018 was not part of the assets to be forfeited to the Defendant as specifically mentioned in the Judgment Order and it is trite law that in the interpretation of the content of a document, the express mention of one excludes all others. See Attorney General of Lagos State v. Attorney General of the Federation (2014) 9 NWLR (part 412) 217 at 337.

It is also clear to all and sundry that the Defendant has not presented any court order or judgment which enables it to recover monies from the Claimant’s account in dealing with the Claimant’s criminal activity of fraud other than the judgment of the Federal High Court of 7^th March, 2018 which the Claimant and the Defendant tendered in evidence.

In addition, I reckon that the Defendant tendered Exhibit DW1B which is the Dismissal letter issued to the Claimant on the 22^nd of December, 2018 where in paragraph 5 of the letter, the Claimant was informed that “the Bank is required to close your staff account in line with the Bank’s policy on disengagement of staff”. While there is no dispute as to whether the Defendant can close the Claimant’s account being a staff account, the paragraph did not state that the Defendant can pursuant to the Bank’s policy usurp or convert the monies in the said account. To have withdrawn the claimant’s monies without his prior agreement and without a court order to do same, in the face of the judgment of the court, without a doubt, amounts to double jeopardy and a violation of the Claimant’s right to his property as guaranteed under the Constitution of Federal Republic of Nigeria 1999 (as amended).

With regards to double jeopardy, section 36(9) provides that:”

“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.” See IGBINEDION v. FRN (2014) LPELR-22766(CA).

While with regards to right to property and freedom from compulsory acquisition of same except under legitimate means, section 44 provides thus:

No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –

requires the prompt payment of compensation therefor; and
gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.

In view of the foregoing, the Defendant has failed to present before this court the law that gives the Defendant the right to compulsorily acquire the asset of the Claimant in its care.

Consequent upon the foregoing, issue one is resolved in favour of the Claimant to the Effect that in view of the Judgment of the Federal High Court in Suit FHC/PH/160C/2017, the Defendant is not entitled to the sum of N3,268,140.29 (three million , two hundred and sixty eight thousand, one hundred and forty naira: twenty nine kobo), held in the claimant’s Account number 0038793483.

I then turn to issue two which is whether or not the Claimant is entitled to emoluments and gratuitous payments upon his dismissal from the employment of the Defendant. This issue calls into question the status of the claimant’s employment with the Defendant.

While the Claimant posited that he is entitled to other sums of money being gratuity already accruing from the N2,500,000.00 inherited by the Defendant from Claimant’s former employer on the 1^st of February 2012 and invested with NLPC Fund administrator at the rate of 18% per annum. The Defendant in reaction contended that upon the dismissal of the Claimant, he is no longer entitled to any gratuity.

By way of evidence, none of the Exhibits tendered before the court lend credence to the earning of the said gratuity and also to show that same was inherited by the Defendant which is invested with NPLC Fund Administrators at 18%.

That said, I have taken a look at Exhibit C4 which is the letter of dismissal of the Claimant wherein he was informed that upon his admission of being involved in an alleged cash diversion, suppression and manipulation, of customer’s account to the tune of over N48million, his action amounts to gross misconduct and that he is consequently dismissed. This clearly shows that the Claimant’s contract of employment was not ended by way of termination but by dismissal.

Consequent upon the foregoing, it simply remains a question of law whether the Claimant is generally entitled to gratuity upon his dismissal from employment. The court in the case of Olatunbosun v. NISER Council (1988) NWLR (Pt.80) 25 succinctly put the implication of termination and dismissal thus:

“Legally, both termination and dismissal all imply removal from a particular employment. The consequences may vary. Dismissal may entail loss of benefits while termination may not.” Per Oputa, J.S.C (P. 44, paras. C-G)

In more detailed terms, the court in 7UP BOTTLING COMPANY PLC V. AUGUSTUS (2012) LPELR-20873(CA) held that:

“It is trite that ‘dismissal’ of an employee by the employer translates into bringing the employment to an end while under ‘termination of appointment’, the employee is enabled to receive the terminal benefits under the contract of employment. The right to ‘terminate’ or bring an employment to an end is mutual in that either party may exercise it. ‘Dismissal’ on the other hand is punitive and depending on the contract of employment entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee. See Mr. A. S. Jambo vs. Petroleum Equalization Fund (Management Board) & 2 Ors (2005) 7 SC (PT 11) 30 at 43 – 44…” Per ABBA AJI, J.C.A (Pp. 26-28, paras. B-A)

In view of the foregoing, gratuity is regarded as bounty by Black’s Law Dictionary at page 817 and same is considered a gift which usually is given at the end of employment as terminal benefit. However, where the employment ends by way of dismissal, the employee will normally lose the right to demand for same. If the contrary is the case based on the agreement of the parties, then it is incumbent on the Claimant to present such agreement before the court and he has failed to present any modicum of evidence which entitles him to gratuity after dismissal based on agreement of parties or otherwise.

Consequent on the foregoing, issue two is resolved in favour of the Defendant and against the Claimant to the effect that the Claimant is not entitled to emoluments and gratuitous payments upon his dismissal from the employment of the Defendant.

Having resolved issues one and two, it is imperative to determine in the light of the foregoing resolutions whether or not the Claimant is entitled to the reliefs sought.

Reliefs (i) and (ii) are for:

i) A Declaration that the defendant’s seizure of the claimant’s funds, and refusal to grant the claimant access, and release to the claimant the fund being total the sum of N3,268,140.29 (three million , two hundred and sixty eight thousand , one hundred and forty naira: twenty nine kobo), held in the claimant’s Account number 0038793483 is unlawful and unjustifiable, illegal and an arbitrary conversion of the claimant’s fund placed under the defendant’s care.
ii) A Declaration that the defendant’s seizure of the said claimant’s fund, being the total sum of N3,268,140.29 ( three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo), held in the said claimant’s account number 0038793483 amounts to double jeopardy, the claimant having served appropriate punishment for the crime he was accused to have committed; and accordingly the seizure is unlawful, illegal and unconstitutional.

With regards to said reliefs (i) and (ii) which are declaratory reliefs touching on the facts that the Defendant withheld and converted the sum of N3, 268, 140.29 which was in the Claimant’s account, the resolution of issue one adequately addresses the reliefs as the Claimant presented cogent and convincing evidence to prove that in view of the judgment of the Federal High Court in Suit FHC/PH/160C/2017, it was unlawful, unjustifiable, illegal and arbitrary for the Defendant to have seized and refused to release the said sum.

Consequent upon the foregoing, reliefs (i) and (ii) are considered meritorious and this court accordingly grants same.

Relief (iii) is for “An Oder for the release by the defendant, of the sum of N3,268,140.29 ( three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo) to the claimant, being the funds lawfully earned by the claimant while in the service of the defendant and being held in the said claimant’s Account Number 0038793483”.

The said relief is dependent on the declaration sought in reliefs one and two which have been granted by this court. Consequent upon the finding that the seizure of the sum of N3, 268, 140.29 belonging to the Claimant is unlawful, it is axiomatic that the Defendant be asked to release same. Consequently, the Claimant is entitled to relief (iii) and same is accordingly granted.

Relief (iv) which is “An order for the computation and payment of all other emoluments including gratuitous payments cumulating from the claimant’s period of employment with the Intercontinental Bank PLC till the 22^nd of December, 2017 when the claimant’s service with the defendant was terminated”, is dependent on the resolution of issue two. The said issue is resolved against the Claimant to the effect that upon dismissal from employment, an employee would lose his right to terminal benefits including gratuitous payments. I am not unmindful of the fact that the Claimant contends that the said gratuity was earned starting from his employment from his former employer. However, in view of the fact that same has cumulated into what must be determined by the current employer, the effect would remain the same. Consequently, the Claimant is not entitled to relief (iv) and same is accordingly refused.

Relief (v) is akin to cost of action as it seeks for “An Order for the payment of the N750,500.00(seven hundred and fifty thousand naira) being the fess paid in lieu of legal representation in this suit”. In this regard, I find that Claimant tendered Exhibit C8 as the fee note issued by the Claimant’s lawyers for the said sum of N750,000.00. That notwithstanding, I must state that cost is granted at the discretion of the court. The court in Jaiyeola v. Abioye [2003] 4 NWLR (Pt.810)397 held that:

“The law is however also settled that costs are not meant to be a bonus to a successful party. It is also not meant to be as punitive measures. In making the award, the court must exercise the discretion conferred on it judiciously and judicially… the main aim of awarding cost is to relieve the successful party of his costs of the litigation he was unjustly put into by the unsuccessful party, the facts of each case must be taken into consideration in deciding whether the costs awarded is reasonable.” Per AKINTAN, J.C.A.(Pp. 28-29, Paras E-C)

In view of the forgoing, I have taken into account the entire circumstances of the case and find that though the Claimant is successful in the instant suit, he is undeserving of the discretion of the court in the award of cost.

Relief (vi) is for award of the sum of 10,000,000 (ten million naira) being exemplary damages for the defendant’s contumelious seizure of the claimant’s funds being the total of N3,268,140.29 (three million, two hundred and sixty eight thousand, one hundred and forty naira, twenty nine kobo) held in the claimant’s said account Number 0038793483.

The said relief being for exemplary damages requires the determination of circumstances under which exemplary damages can be granted and in that regard, the Supreme Court held in the case of Allied Bank Nig. Ltd v. Akubueze (1997) 6 NWLR (Pt.509) that:

“Perhaps it ought to be stressed that exemplary damages, properly so called, may only be awarded in actions in tort but only in three categories of cases, namely:

(i) “Oppressive, arbitrary or unconstitutional action by the servants of the Government.”

(ii) (ii) Where “the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff,”

(iii) (iii) Where exemplary damages are expressly authorised by statute.” Per Iguh, J.S.C.(Pp.48-49, paras. F-B)

Upon the foregoing categorization, I have taken a look at the circumstances of this case and do not find it falling in any of the three categories highlighted by the Supreme Court. The Defendant is not a servant of the government, neither is the conduct of the Defendant out-rightly to make a profit in view of the fact that the monies withheld was to offset monies paid to the defrauded customers although without legal backing or authorization. The Claimant has also not placed before this court any statute that authorizes the payment of exemplary damages in such circumstance.

Consequently, the Claimant has failed to prove that he is entitled to be awarded in exemplary damages and same is accordingly refused.

In the final analysis, the claims of the Claimant is meritorious in the extent to which reliefs (i), (ii) and (iii) have been granted while other claims lack merit and they are accordingly dismissed.

I must add that the Order made for the release of the sum of N3, 268,140.29 by the Defendant to the Claimant, pursuant to relief (iii), must be complied with within 10 days of the delivery of this judgment, failure of which same shall attract interest at 20% per annum.

Judgment is entered accordingly.

I then turn to the Counter-claim. In this regard, there is no gainsaying that Counter-Claim is an independent suit. The court in NWAENANG V. NDARAKE & ORS (2013) LPELR-20720(CA) posited that:

“…counter-claim is an independent action and not part of the original action, though for convenience the two are tried together. Thus, there is no separate hearing for a counter-claim. Usual practice is for the plaintiff to give evidence on his pleadings, which would include his reply to the counter-claim. Where a plaintiff fails to do so, he would be deemed to have abandoned his defence to the counterclaim.” Per OTISI, J.C.A. (P. 79, paras. A-C).

It is perhaps in the light of the foregoing that the Defendant/Counter-Claimant averred separate facts in relation to the counter claim while the Claimant Defendant made reply to the Counter claim in the course of responding to the Statement of Defence and counter claim filed by the Defendant in the substantive suit.

That notwithstanding, the facts relating to the counter claim is largely the entire facts in the substantive suit with some peculiarities in relation to what is counter-claimed. The Defendant/Counter-Claimant is claiming against the Claimant Defendant the following:

(a) AN ORDER of Court mandating the claimant to pay to the Defendant the sum of N39,905,715.71 being the outstanding amount payable to the Defendant from the sum of N48,173,856.00 the Defendant refunded to the two customers defrauded by the Claimant.

(b) Interest on the said sum till the payment is fully repaid to the Defendant

(d) Cost of this action.

In addition to the facts captured in the substantive suit, the peculiar facts in respect of the Counter claim is that the Defendant/Counter-Claimant averred that the Claimant/Defendant as an employee defrauded two customers to the tune of N36,186,012.00 and N11,987,844.11 amounting to a total sum of N48,173,856.00. The Defendant added that they refunded the monies to the two customers on the understanding that the sum will be recovered by the Defendant from the Claimant. They defendant added that the Claimant upon his conviction then deposited some landed properties estimated at N5 million as a part refund and the said N5million in addition to the sum of N3, 268,140.29 in the Claimants account leaves the Defendant entitled to the sum of N39,905,715.71.

The Defendant tendered Exhibit DW1A which is the judgment of the Court and DW2A and DW2B which are the statements account in proof of transfers made to the defrauded customers.

The Claimant simply denied all the Counter-claim and repeated all the facts in the substantive suit which is in respect of the judgment Order of the Federal High Court particularly as it relates to the refund made to the victims of the crime.

Upon taking into account all the arguments made by counsel to both parties in their respective addresses and reply as it relates to the counter claim, I find that the sole issue for the determination of the counter claim is to wit:

Whether in view of the evidence before the court, the Counter-Claimant is entitled to the reliefs sought.

In resolving the sole issue, there is no gainsaying that the Defendant/Counter-Claimant is burdened to proof that the Claimant/Defendant is obligated to pay the Defendant the sum of N39,905,715.71 and the determination of whether that burden has been discharged will equally result in resolving the sole issue so formulated. The court in AFOLAYAN v. ARIYO & ANOR (2014) LPELR-22775(CA) held in this regard that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence.” Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B)

In view of the forgoing, I have taken a look at Exhibit DW2A and DW2B which are the statements of account of the Defendant. There is no doubt that the Counter Claimant made payment to a certain Jephthah school and RCCG Province. But the Counter-Claimant posited that the monies were paid on the understanding that the said monies will be recovered from the Claimant/Defendant. The question that arises is where was such understanding documented and was it a solitary understanding on the part of the Defendant/Counter Claimant or in unison with the Claimant/Defendant?

The only document before the court in relation to refund of monies to the victims of the Claimant/Defendant fraud is the Judgment Order of the Court dated the 7^th of March, 2018 which states that:

“The Defendants has refunded the total sum of N47,386,012 (forty seven million, Three hundred and Eighty six thousand, twelve naira) and same has been given to the victims involved in this case.”

The “Defendants” in the said suit was clearly not the Defendant/Counter-Claimant in this suit, but the Claimant/Defendant along with one Obama Chisolm who was discharged. As earlier stated in the Substantive judgment, the Defendant/Counter-Claimant made payment to the said victims on their own volition while the prosecution of the Claimant was pending. In addition, in the said Judgment Order which the Defendant/Counter Claimant tendered as Exhibit DW1A, it was clearly stated that the Defendants agreed to forfeit two set of two bedroom and three bedroom apartment situate and being at Ali Akpu Ogologo, Rumuekine Town, Obio Okpor LGA, Rivers State, Hyundai Tucson Jeep with registration number NCH-307 KC Rivers State and five plots of land situate and being at umuakuneme Farm Land Umembe Irete, Oweri Imo State to Access Bank Plc.(the Defendant/Counter-Claimant).

This is contrary to what the Defendant/Counter-Claimant posited that the Claimant/Defendant deposited 5 plots of land estimated at N5,000,000.00. The evidence of the deposition and the estimation of the said 5 plots of land at N5,000,000.00 was not presented before this court. Where it is 5 plots of land that were deposited and the Claimant/Defendant failed to relinquish the remaining properties which the court ordered to be forfeited, this process of counter-claim is not the means to enforce the said judgment.

Consequent upon the forgoing, I find that the Defendant/Counter-Claimant has failed to prove that the Claimant/Defendant is obligated to pay the sum of N39,905,715.71 to the Defendant/Counter-Claimant in view of the evidence before the court particularly the judgment of the Federal High Court delivered on the 7^th of March, 2018 and tendered in evidence by the Defendant as Exhibit DW1A.

It is in view of the foregoing that I consider the reliefs sought by the Defendant/Counter-Claimant and I find it apposite to consider reliefs (a) and (b) together.

Relief (a) is for AN ORDER of Court mandating the claimant to pay to the Defendant the sum of N39,905,715.71 being the outstanding amount payable to the Defendant from the sum of N48,173,856.00 the Defendant refunded to the two customers defrauded by the Claimant;

While relief (b) is for interest on the said sum till the payment is fully repaid to the Defendant.

In view of the resolution made in the substantive suit and the evaluation made of the evidence before the court in respect of the Counter-claim, particularly the judgment of the Federal High Court dated the 7^th of March, 2018, the Defendant/Counter Claimant has failed to convince the court that they are entitled to the orders sought for the payment of the sum of N39,905,715.71 by the Claimant/Defendant. The failure to be entitled to the order for payment of the said sum will automatically affect the claim for interest on the said sum. Consequently, reliefs (a) and (b) fails and they are accordingly refused.

Relief (c) is for GENERAL DAMAGES of N20,000,000.00 (Twenty Million Naira) only against the Claimant.

With regards to the nature of general damages, the court in EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) held that:

“General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B).

In another breathe, the court in the case of UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) held that:

“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Per FABIYI, J.S.C (P. 32, paras. C-E).

While the Defendant/Counter-Claimant has not predicated their claim for general damages on any particular wrong, it is perhaps for the Claimant/Defendant’s failure to pay the outstanding balance to the Defendant/Counter-claimant. In this regard, I have found that the Defendant/Counter-Claimant has failed to state how the Claimant/Defendant is obligated to make the payment hence, there is no wrong to be complained of and consequently, there is no basis upon which general damages can be granted. The said relief (c) therefore lacks merit and is accordingly refused.

Relief (d) is for “Cost of action” and I had earlier maintained in the substantive suit that this court has discretion to grant or refuse the award of cost. A discretion which is to be exercised judicially and judiciously. That as it may be, cost is usually granted to the successful party as the court held in the case of NNPC v. CLIFCO NIG. LTD (2011) LPELR-2022(SC) that:

“The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.44 Obayagbona v. Obazee 1972 5 SC p.247” Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).

In view of the foregoing authority vis-à-vis the determination of reliefs (a) (b) and (c), it is without doubt that the Defendant/Counter-claimant is not the successful party in the determination of the Counter claim. Consequently, the Defendant/Counter-Claimant is not deserving of the exercise of discretion in the award of cost and same is accordingly refused.

In the final analysis, the sole issue formulated in the determination of the counter claim is resolved against the Defendant/Counter-Claimant and in favour of the Claimant/Defendant to the effect that the Defendant/Counter-Claimant is not entitled to the reliefs sought. Consequently, the counter claim lacks merit and is accordingly dismissed.

Judgment is accordingly entered in respect of the counter claim.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE