Mr. Ejike Kenneth Agbiki Ogu -VS- First Bank of Nigeria Plc.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 6^TH DECEMBER, 2019 SUIT NO: NICN/YEN/55/2016

BETWEEN:

EJIKE KENNETH AGBIRIOGU —————— CLAIMANT

AND

FIRST BANK OF NIGERIA PLC ——– DEFENDANT

JUDGMENT

This suit was commenced by the Claimant vide Complaint and Statement of Facts dated and filed on 11^th day of March, 2016, wherein the Claimant claims the following reliefs against the Defendant:

A declaration that the purported summary dismissal of the claimant by the defendant vide the defendant’s letter dated 6^th December, 2012, is wrongful, unjustifiable, unlawful and as such, of no effect whatsoever.
An order commanding the defendant to pay the balance of salaries amounting to N12,829,227.83 (Twelve Million, Eight Hundred and Twenty Nine Thousand, Two Hundred and Twenty Seven Naira, Eighty Three Kobo), for the period the Claimant was placed on an illegal recovery suspension and the salaries, allowances, bonuses and entitlements of the Claimant from the 6^th day of December, 2012 up to the date of filing of this suit.
An order commanding the defendant to pay the claimant the sum of N2,165,487.38 (Two Million, One Hundred and Sixty Five Thousand, Four Hundred and Eighty Seven Naira, Thirty Eight Kobo), which is his one month’s salary in lieu of a termination notice.
The sum of N200,000,000.00 (Two Hundred Million Naira) only, being general damages for breach of contract for the wrongful summary dismissal of the claimant by the defendant.

On the 28^th day of November, 2017, I. S. Abigo Esq. appeared for the Claimant while G. I. N. Okwara Esq. announced appearance for the defendant. Learned counsel to the defendant moved the Defendant’s Application dated and filed on 25^th April, 2016 for regularization of the Memorandum of Appearance, Statement of Defence and other accompanying processes. With no objection from the claimant’s counsel the application was granted, and the said processes dated 25^th April, 2016 and filed on 26^th April, 2016 were deemed as having been properly filed and served.

It is pertinent to state that, the Claimant filed a Reply to the Defendant’s Statement of Defence together with a further deposition of the claimant on the 12^th day of December, 2017.

On the 22^nd day of January, 2018 when the matter came up for trial, C. P. Onuobia Esq appeared with P. C. Iwezor Esq. for the Claimant, while G. I. N. Okwara Esq. appeared for the defendant. The Claimant opened his case by testifying for himself as CW, adopted his witness deposition on oath made on 11^th March, 2016, as well as the additional deposition made on 12^th day of December, 2017, and tendered documents which were admitted and marked as exhibits CW1-3, CW2, CW3, CW4, CW5, CW6, CW7, CW8, CW9, CW10, CW11, CW12, CW13, CW14, CW15, CW16, CW17, CW18, CW19, CW20, CW21, CW22, CW23, CW24, CW25, CW26, CW27, CW28 and CW29; while CW30 was tendered through CW during cross-examination by the learned counsel to the defendant. The witness was then cross-examined and re-examined after which the claimant closed his case on the 14^th day of February, 2018, and the case was thereafter adjourned to 19^th March, 2018 for defence.

On the 19^th day of March, 2018, C. P. Onuobia Esq. appeared for the Claimant while G. I. N. Okwara Esq. announced her appearance for the defendant. Learned counsel to the defendant informed the court that even though the matter was slated for defence they were not ready to proceed because they intended to amend the Statement of Defence and sought for another date. The case was adjourned to 25^th April, 2018.

When the matter came up on the 25^th of April, 2018, C. P. Onuobia Esq. appeared for the Claimant while Samuel Anwe Esq. announced appearance for the defendant. Mr. Anwe informed the court of the pendency of the defendant’s motion for amendment and since the application was only served on the claimant’s counsel on the morning of 25^th April, 2018, the case was further adjourned to 17^th May, 2018. On the 17^th of May, 2018, R. A. Uwakwe Esq. with I. S. Abigo Esq. held brief for C. P. Onuobia Esq. for the Claimant, while Samuel Anwe appeared for the defendant. Mr. Anwe moved the defendant’s application for amendment of the Statement of Defence dated 24^th April, 2018 and filed on 25^th April, 2018. With no opposition from the claimant same was granted as prayed. The Defendant’s Amended Statement of Defence was however filed on 24^th May, 2018.

The defendant opened its defence on 16^th July, 2018 wherein one Mr. Onyibor Uchay testified as the defendant’s sole witness. DW adopted his Witness Statement on Oath made on 24^th May, 2018, and the following exhibits were tendered through DW: DW1, DW2, DW3 and DW4. The witness was then cross-examined by the learned Claimant’s counsel without any re-examination. The Defendant then closed its case on 10^th day of October, 2018, and the matter was adjourned for adoption of final written addresses.

On the 15^th of October, 2019, when this case came up for adoption of final written addresses, C. P. Onuobia Esq. appeared for the Claimant while G. I. N. Okwara Esq. appeared for the Defendant. Parties thereafter adopted their Final Written Addresses respectively. The Defendant’s Final Written Address was dated 5^th December, 2018 and filed on 6^th December 2018. The defendant also filed a Reply on Point of Law dated and filed on 6^th February, 2019 but deemed to have been properly filed and served on the 7^th February, 2019. The Claimant’s Final Written Address was dated and filed on 17^th January, 2019. With the adoption of the parties’ Final Written Addresses, the suit was then adjourned for judgment.

THE CASE OF THE CLAIMANT:

The Claimant was employed by the defendant in 2005 as a Manager, and the appointment was confirmed in 2006. He was subsequently promoted to the posts of Senior Manager vide letter of 30^th July, 2007 and Principal Manager during the 2008/2009 promotion exercise of the defendant.

According to the claimant, upon his posting or transfer to the defendant’s Rumuomasi Branch sometime in April, 2009 as the Branch Manager, one of the accounts he met belonged to C&M Limited which had already been enjoying an invoice discounting facility and managed by the Relationship Manager, one Mrs. Doris Onyema. That it was the said Mrs. Doris Onyeama who initiated, created, booked and got approval for the account in 2008, and that the said officer at no time informed the claimant of any challenge with the account; and no audit query was raised by the audit unit of the defendant concerning the account in question.

It was further pleaded by the Claimant that, prior to the coming into effect of the Defendant’s policy of 28^th August, 2012 when the defendant categorized confirmation limits for its managers, confirmation of contract/payment of domiciliation credit facilities was done exclusively by the Relationship Manager. That after his transfer to Yenagoa, Bayelsa State as Group Head, Public Sector South in 2010, sometime in April of 2011 he received a Memo from the defendant’s Internal Audit Department requesting for information on the officers responsible for some non-performing facilities to which he responded to.

That the defendant’s Internal Audit Department issued queries to Mrs. Doris Onyema and Mr. Ikechukwu Nworah concerning the account of C&M Limited because the company had a non-performing facility and diverted proceeds from a contract which was domiciled with the Defendant upon which the company’s invoices were discounted, and the defendant was investigating the circumstances surrounding the diversion. To the Claimant, the memo was merely copied to him for his attention as a potential witness as no query was directed at him because he had been transferred to Bayelsa State when the diversion of the contract proceeds took place. That he had nothing to do with the said account as the Relationship Manager was fully in charge of the account, more so that, Mrs. Doris Onyema took full responsibility for the management of the said account and did not implicate either the claimant or any other person.

That at the Disciplinary Committee where he merely appeared as a witness, all questions and requests for explanation by the Committee were directed at Mrs. Doris Onyema and Mr. Ikechukwu Nworah since there was no allegation against him.

According to the claimant, he was shocked to receive a letter dated 2^nd November, 2011 placing him on “90 days recovery suspension” which is not known to the Defendant’s Employee Handbook. That he protested as he was innocent of the allegation and sequel to his pleas he received a letter dated 20^th December, 2011 from the defendant recalling him from the 90 days recovery suspension and he resumed his duties until sometime in June, 2012 when he was again suspended and subsequently dismissed on the 6^th of December, 2012.

That despite his appeals against the said dismissal, the defendant refused and or neglected to consider is pleas.

It is the contention of the claimant that, by the defendant’s Employee Handbook, an employee can only be summarily dismissed for gross misconduct/negligence and in his case there was no such allegation of gross misconduct/negligence against him, and he was neither informed nor tried of any act of gross misconduct for which he was summarily dismissed. That contrary to the defendant’s Employee Handbook which stipulates that an employee shall not be suspended from duty for a period exceeding six months, he was suspended for more than six months and denied his right to fair hearing because no clear cut case was presented against him to afford him the ample opportunity to defend himself.

That since he rendered services to the defendant by attending to some customers, guiding and directing his subordinates as well as assisting Mrs. Doris Onyema and Ikechukwu N. Nworah in their recovery efforts of the C&M Limited facility which led to the restructuring of the facility to the defendant’s benefit, he should be remunerated in full for the period of the suspension. The Claimant therefore urged the court to grant the claims in this suit which are particularized at paragraphs 39 – 40 of the Statement of Facts.

DEFENDANT’S CASE:

According the Defendant who admitted paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 and denied the remaining paragraphs of the Statement of Facts, pleads that the Claimant’s transfer to the Rumuomasi Branch was a routine exercise to fill up the vacant position of the Branch Manager, and that transfer of its personnel from one branch to another is generally a routine exercise conducted at its discretion.

That a Branch Manager whose duty it is to supervise all the other officers in a branch and see to the smooth running of all accounts in the branch will be seen to have breached such duty where he abdicates same to a subordinate under the pretext that he did not introduce the customer and create the accounts. That in the instant case, the claimant failed to monitor the C&M Limited account in his branch by properly supervising his subordinate thereby leading to a loss of N1billion to the defendant. That at no time did the defendant’s Relationship Managers had unlimited confirmation capacity over payment domiciliation without the concurrence of the Branch Manager who is the immediate supervisor of the Relationship Manager.

According to the Defendant, the Claimant was queried vide Memo of April, 2011 and faced the Disciplinary Committee twice on 28^th October, 2011 and 9^th May, 2012 not as a witness but due to his role in the management of the C&M Limited account, before being suspended on 2^nd November, 2011. That the Claimant who appeared before the Disciplinary Committee to defend himself was not dismissed for the creation and recommendation of C&M Limited or granting of loan facility to the said company but for his failure to supervise the Relationship Manager whose activities were directly under the supervision of the Claimant. That due to the Claimant’s dereliction of duties which enabled C&M Limited to divert depositors’ funds of over N1 Billion, he was put on 90 days recovery suspension vide letter of 2^nd November, 2011, but subsequently recalled vide letter of 20^th December, 2011, pending the completion of investigation by the Chief Internal Auditor.

That upon the completion of the Internal Auditor’s Investigation and reference to the Disciplinary Committee, the said Disciplinary Committee recommended suspension of the Claimant and other officers to the defendant’s Management Committee who overruled the recommendation of the Disciplinary Committee and decided on termination or dismissal depending on what was recovered by the Claimant and others. That the Claimant was aware of the reasons for his dismissal as being gross negligence of duty and the defendant refused to respond to the letters from the Claimant’s solicitors because the letters demanded for a reversal of actions that had been concluded by the defendant. The defendant pleaded such particulars of negligence by the claimant in paragraphs 29(i)(a) – (f) as follows:

The Claimant was the Manager of the Defendant’s Rumuomasi Branch where C&M Limited account was domiciled.
C&M Limited was granted invoice discounting facilities which entails that C&M must have valid invoices in SPDC and Global Gas.
C&M Limited by the transaction dynamics was to present the invoices to the Defendant’s Rumuomasi branch and the Rumuomasi branch would investigate the authenticity of the invoice before disbursing about 70% monetary value of the face value of the invoice.
C&M Limited submitted fake invoices to the Defendant’s Rumuomasi branch, and the branch under the direct management of the Claimant failed to investigate the authenticity of the invoice, but went ahead to disburse huge sums of money which put the defendant in the loss of about N1billion.
The Claimant whose duties included supervising monetary and authorizing transaction that have been certified authentic failed to ensure that the fake invoice were investigated rather he authorized the disbursement which has put the defendant in jeopardy.
The Claimant’s defence had been he did not create the account or approved the facility, and the relationship manager has taken full responsibility which all sum up to playing the biblical Pontius Pilate who sees all, does nothing but merely washes off his hand.

The defendant also contends that, the suspension and subsequent dismissal of the Claimant for gross misconduct was in line with its Employee’s Handbook and what he was paid represents his entitlement at the point in time.

DEFENDANT’S SUBMISSIONS.

The Defendant distilled four (4) issues for determination, to wit:

Whether the Claimant was given fair hearing before dismissal?

Whether the conduct of the Claimant amounted to misconduct leading to dismissal and whether Defendant complied with the terms and conditions of Claimant’s employment in dismissing the Claimant?

Whether the Claimant is entitled to the reliefs sought?

Whether any probative value can be attached to the Claimant’s documents in the circumstances of this case?

On issue one (1), it is the submission of learned counsel that, the Claimant was afforded fair hearing before his dismissal from the defendant’s service because he was given an opportunity to defend himself in line with section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and the defendant’s Handbook. That the Defendant queried the Claimant and other indicted staff in April, 2011 and August, 2011 (exhibit DW1) and he responded to the queries vide exhibits CW9 and CW13 after which he appeared before the Defendant’s Disciplinary Committee twice on 28^th October, 2011 and 9^th May, 2012. The court was referred to University of Calabar V. Essien (1996) 10 NWLR (Pt.447) 225 at 262 wherein it was held that, “Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer needs establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say, that the rules of natural justice were not breached.”See also Yusuf V. Union Bank of Nigeria (1996) 39 LRCN 1139 AT 1154, Akumechiel V. Benue Cement Co. Ltd (1997) 1 NWLR (Pt. 454) 695 at 703, Imonikhe V. Unity Bank Plc (2013) 34 N.L.L.R. Pt. 101 p. 574 para B and Mohammed V. Aso Savings and Loans Limited (2016) 66 NLLR (Pt. 234) 173 paras. F-G.

Learned counsel drew the court’s attention to paragraphs 15, 16, 17, 18 and 19 of the Statement of Facts wherein the Claimant pleaded the queries issued to Ikechukwu Nworah and Mrs. Doris Onyema but failed to tender the memo directed at him in April, 2011 to which he wrote a response vide letter of 8^th April, 2011 (exhibit CW9); and also failed to tender the memo of 11^th August, 2011 (exhibit DW1) to which he wrote a reply vide his letter of 12^th August, 2011 (exhibit CW13). The court is urged to invoke the provisions of section 167(d) of the Evidence Act 2011 against the Claimant and hold that if the withheld evidence had been produced, they would be unfavourable to the Claimant’s case.

It was further posited by learned counsel that, the Claimant who alleges that he was merely invited to appear before the Disciplinary Committee as a witness and not as an indicted person has the burden to prove such allegation and there is no evidence before the court to show that he appeared before the Disciplinary Committee as a witness. The court is therefore urged to resolve issue one (1) in favour of the Defendant.

With regard to issue two (2), learned counsel argued that where the conduct of a party constitutes gross misconduct which has been held to be such conduct that is of a grave and weighty character as to undermine the confidence which ought to exist between an employer and employee attracts summary dismissal. See U.B.N. Plc V. Soares (2012) 29 N.L.L.R. Pt. 84 p. 361 paras. E-F.

That in the instant case, the Claimant was queried for failure to do due diligence in respect of an account under his control as the manager of the defendant’s Rumuomasi branch which failure led to diversion of the sum of one billion naira of depositors’ fund and a great loss to the defendant.

The court was referred to exhibits CW9, CW13, DW1, CW18, CW20 as well as the answers elicited from the Claimant during his cross-examination, and submitted that by paragraph 11.5 of the defendant’s employee handbook, failure on the part of an employee to report promptly any act or irregularity by another employee or non-employee after being aware of same attracts summary dismissal. That there is no evidence before the court indicating that the claimant who was aware of the irregularities and challenges in the running of the C&M Facility under his branch reported same as required.

That while the claimant alleged in paragraph 12 of the Statement of Facts that prior to 2012 contract/payment of domiciliation credit facilities was done by the Relationship Manager without any limitations, he failed to present the said policy before the court to assist the court in determining same. That pleadings without evidence to support same is taken as having not been established, referring to the case of SPDC V. Oruwari (2016) All FWLR (Pt. 848) 766 paras. D-F, and Ikechukwu V. UBN (2016) 66 NLLR Pt. 234. See also section 131(1) of the Evidence Act.

According to learned counsel, the Claimant’s allegation of being suspended twice and in excess of the period of six months is baseless because by the provisions of paragraph 11(4), a period of suspension can extend beyond six months until investigation is concluded, in cases involving serious misconduct such as the case under consideration. And that, his claim of being only aware of the reasons for his dismissal when exhibit CW19 (Statement of Defence in Suit No. NICN/PHC/08/2012) was brought to his attention can also not hold water because while exhibit CW19 was dated 2^nd July, 2013 and filed on 12^th July, 2013, exhibits CW20 and CW21 were written on 20^th June, 2013 and 2^nd July, 2013 respectively.

That an employee who was investigated and found guilty of acts of gross misconduct can be summarily dismissed without notice and wages, referring to Eze V. Spring Bank Plc (2012) All FWLR (Pt. 601) 1090 paras. F-G and Osisanya V. Afribank Nig Plc (2007) All FWLR (Pt. 360) 1500 paras. F-G.

With regard to issue three (3), learned counsel argued that, the claimant’s claim of expending money reporting to the office while on suspension is equally baseless in view of the provisions of paragraph 11.4 of the defendant’s employee handbook which requires that an employee placed on suspension will receive ½ basic salary and full housing, utility and transport allowance and to report each working day for two hours to an official designated by the bank and sign to indicate compliance. That since the claimant was not exonerated of the allegation against him and was consequently dismissed from service, he is not entitled to the half of his basic salary not paid during the suspension; and that by paragraph 11.5 of the Handbook, the Claimant forfeits all his terminal benefits to the defendant and is therefore not entitled to the claims before the court. That it is contrary to public policy for a litigant to pass his legal fees to a defendant.

With regard to issue four (4), it is posited that a document wrongly admitted in evidence can be expunged by the court if it fails the tests of admissibility, referring to the case of Olowoyo V. Ojo (2012) All FWLR (Pt. 628) 885 at paras. F-H. That exhibit CW19 being a court process ought to have been certified, and that since the said exhibit is not a certified true copy as required by law, same should be expunged from the court’s records. See Mannir Abdullahi V. Federal Republic of Nigeria SC.288/2012 and Okobi V. Sterling Bank Plc (2013) 30 NLLR at 273 paras. A-B. Sections 102 and 104 of the Evidence Act, 2011.

With respect to exhibit CW23, it is submitted that being a statement of account it ought to contain the name of the issuing officer, his signature and the stamp of the bank for the purpose of authentication. That since the said exhibit contains none of these and it is not signed, same should be discountenanced by the court, referring to Brewtech Nigeria Limited V. Folageshin Akinnawo (2016) LPELR-40094(CA)

For exhibit CW24, it is argued that the said exhibit is not signed and there is nothing to link the exhibit to the defendant and same should equally be jettisoned. For exhibit CW26 it is also the argument of counsel that it was neither signed nor does it indicate the identity of the sender. That there is no nexus between the document and the defendant. The court is therefore urged to expunge these exhibits from its records.

With respect to exhibit CW30 which was tendered during the cross-examination by the defence and objected to by the Claimant’s counsel on the ground of it being a photocopy, it is contended that, since the witness identified the document and same points to the renewal of the facility, it is admissible and same was properly admitted.

The court was finally urged to dismiss the suit because the claimant is not entitled to any of the claims.

CLAIMANT’S SUBMISSIONS

The Claimant nominated three (3) issues for the determination of this court, to wit:

Whether the claimant was guilty of gross misconduct/negligence as alleged by the defendant in the handling of the C&M Limited’s account, to warrant his summary dismissal.
Whether the Claimant was granted any fair hearing by the Defendant’s Disciplinary Committee and Management Committee before he was summarily dismissed.
If the Claimant’s summary dismissal was wrongful, whether he is not entitled to compensatory damages.

While arguing issue one (1) learned claimant’s counsel referred the court to exhibit CW6 as well as the evidence of DW1 and submitted that the claimant was not in any way guilty of gross misconduct/negligence in the handling of the C&M Limited’s account to warrant summary dismissal from the service of the defendant. That the defendant who alleged that fake invoices were submitted by C&M Limited which the Claimant failed to investigate did not plead and tender the alleged fake invoices in evidence. The court is urged to invoke the provisions of section 167(d) of the Evidence Act 2011, and hold that if the said fake invoices had been produced they would have been unfavourable to the case of the defendant.

According to learned counsel, the Claimant gave evidence that when he noticed there was no tripartite domiciliation agreement amongst Shell, C&M Limited and the defendant, he flagged the issue and sent an electronic memo to the defendant’s head office and the response he got was that the arrangement was in order. That from exhibit CW14, Mrs. Doris Onyema who was the Relationship Manager did not mention the Claimant’s name as having played any compromising role, and that by exhibit CW8, there was no categorization of the limits for the approval/discounting of invoices by the various levels of managers prior to 2012; while exhibit CW27 allowed the Relationship Manager to handle certain transactions without reference to the Branch Manager. That for the Claimant to therefore be accused of being guilty of gross misconduct or negligent in handling the C&M Limited’s account, the defendant must clearly point out the specific act which falls within the work schedule of the claimant that he failed to perform. That the claimant has given evidence to the effect that it was not part of his work schedule to supervise Mrs. Doris Onyema the Relationship Manager but rather it was the responsibility of the Operations Manager.

Learned counsel further referred the court to the case of New Nigeria Bank Plc V. G. C. Osunde (1998) 9 NWLR (Pt. 566) 511 at 514 ratio 7, on the definition of gross-misconduct and submitted that for the defendant to have allowed the claimant to work even after he had been placed on a 90 days recovery suspension means that the relationship between the parties had not been soured as to have such grave and weighty character that affected the confidence and trust existing between them. That in any case, the defendant failed to plead or tender any evidence of gross misconduct before the court, and the court is therefore urged to hold on this issue that the Claimant is not guilty of any gross misconduct or negligence in the handling of the C&M Limited’s account.

With respect to issue two (2), it is posited that the Claimant was denied his right to fair hearing by the Disciplinary Committee and the Management Committee because administrative bodies while acting judicially must comply with the principles of fair hearing referring to the cases of Judicial Service Commission of Cross-River State V. Dr. (Mrs.) Asari Young (2013) 11 NWLR (Pt. 1364) 1 at 6 – 7 ratios 2 and 5, and Dr. Charles Ezenwa V. Katsina State Health Services Management Board (2011) 9 NWLR (Pt. 1251) 89 at 100-101 ratio 5. That no query was directed at the Claimant and he was merely invited to the Disciplinary Committee hearing as a witness in the proceedings against Mrs. Doris Onyema. That the Claimant was not given the opportunity to cross-examine or confront his accuser, the Internal Auditor. That contrary to defendant’s position that exhibit DW1 is the query issued to the Claimant, the said exhibit DW1 which merely asked the Claimant for his comments on the subject matter of the diversion of contract proceeds falls short of what is expected of a query that should clearly state what the claimant did or failed to do that amounted to an act of gross misconduct. See Nyong Emmanuel Obot V. Central Bank of Nigeria (1993) 8 NWLR (Pt. 310) 140, 145 ratios 1, 2 and 3.

That since exhibit DW1 gave the claimant less than 24 hours within which to make his comments contrary to the provisions of paragraph 11 of the Handbook, and since he was referred to the Management Committee which neither heard the Claimant nor considered his appeal before dismissing him, the claimant’s right to fair hearing was breached by the defendant. See Olabode Adewunmi V. Nigeria Eagle Flour Mills (2014) 14 NWLR (Pt. 1428) 443, 445 ratios 1 and 2; Mr. Yesufu Amuda Garba & Ors. V. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, 553 and 558 ratios 10, 11 and 51;University College Hospital Board of Management V. Mr. Isiaka Akinbola Morakinyo (2014) 16 NWLR (Pt. 1434) 589, 594, 595, 596-597 ratios 4,7,8&9; University of Nigeria Teaching Hospital Management Board V. Hope Nnoli (1994) 8 NWLR (Pt. 363) 376, 382 ratio 1; Kamba V. Bawa (2005) 4 NWLR (Pt. 914) 43, 50 ratio 5, and Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227 ratios 29 and 30.

The court was finally urged to hold that the defendant willfully violated its Employee Handbook which infringed on the claimant’s right to fair hearing thereby making the decision to dismiss him null and void.

With regard to issue three (3), it was submitted that since every dismissal has attached to it stigma that the affected person has done something grievous, and it therefore becomes difficult to secure an alternative job, it is only fair and just that where the dismissal turns out to be wrongful, the affected employee should be compensated by way of his earned but withheld entitlements and damages for the injuries he had suffered.

That since the employment of the claimant is not one with statutory flavor, the court should compensate him by way of damages, and he is also entitled to his earned salaries and other entitlements, referring to the cases of Savannah Bank of Nigeria Plc V. Blessing Fakokun (2002) 1 NWLR (Pt. 749) 544, 550 ratios 5 and 6; Shell Petroleum Development Company Ltd V. Chief Victor Sunday Olarewaju (2008) 18 NWLR (Pt. 1118) 1 5-7 ratios 2 and 4 and A.C.B. Ltd V. Sabastine E. Ufondu (1997) 10 NWLR (Pt. 523) 169, 170 ratio 2.

It is pertinent to note that the learned claimant’s counsel in paragraphs 3.41 of the Final Written Address argued what he termed ‘miscellaneous’ relating to the probative values of some of the exhibits before the court.

That exhibit CW30 tendered by the defendant through the claimant during cross-examination was neither pleaded by the defendant nor did the defendant plead any fact relating to the renewal of any facility. That if the defendant had pleaded and front-loaded the document, the claimant would have responded to it in his reply. The court is urged to expunge exhibit CW30 from its records.

With respect to exhibit CW25, it is argued that, contrary to the defendant’s submission that a litigant cannot pass his legal fees to a defendant, the claimant’s position of asking for solicitor’s fees finds support in the case of International Offshore Construction Ltd V. Shoreline Liftboats Nigeria Ltd (2003) 16 NWLR (Pt. 845) 157, 179 paras A-D. The court is there urged to hold that exhibit CW25 was rightly admitted and grant the claimant’s claim of solicitor’s fees.

On exhibit CW19 it is contended that contrary to the defendant’s argument that it was not certified, the said exhibit is a certified true copy of the court process and not a photocopy. That for exhibits CW23, CW24 and CW26, the Claimant pleaded their contents in paragraphs 39 and 40 of the Statement of Facts and the defendant did not deny them. The court is therefore urged to countenance the exhibits.

It was further submitted by way of adumbration that, the case of Nwaji V. Coastal Serv. (Nig) Ltd (2004) NSCQR 895 cited and relied upon by the defendant in the Reply on Point of Law is no longer the correct legal position with respect to payment of solicitor’s fees by the adverse party relying on the apex court case of Union Bank Plc V. N.M. Okpara (2014) 9 NWLR (Pt. 1411) 116, and also the decision of my brother Essien J. in the case of Olisa Gerald Chidi V. Fidelity Bank Suit No. NICN/EN/41/2017 delivered on 28^th May, 2019.

The court was finally urged to grant the claimant’s claims in this suit.

DEFENDANT’S REPLY ON POINT OF LAW.

With respect to the Claimant’s issue one, learned counsel to the defendant countered that counsel’s address no matter how well couched cannot take the place of evidence, and that the court is bound by the pleadings before it, referring to the cases of Sanyaolu V. INEC (1999) 7 NWLR (Pt. 6121) 600 and Kyari V. Alkali (2001) 11 NWLR (Pt. 724) 412 at 433-434 paras H-A. That from the pleadings and evidence before the court, the issue of diversion of contract proceeds and fake invoices are not in contention. See also Aghanelo V. UBN Ltd (2002) 7 NWLR (Pt. 666) 534 at 549 para F, Adeleke V. Adesina (2011) All FWLR (Pt. 571) 1509 at 1529 paras B-D, Yahaya V. Dankwambo (2016) 7 NWLR (Pt. 1511) 334 paras B-C, Awara V. Alalibo (2003) FWLR (Pt. 144) 469 paras H-C and Barewa Pharmaceuticals Ltd V. FRN (2016) 7 NWLR (Pt. 1540) 63.

That the claimant who is seeking declaratory reliefs has the burden of establishing his case and not to rely on any weakness in the case of the defendant, referring to Buhari V. Obasanjo (2003) All FWLR (Pt. 273) 1 at 76 para C, and section 131 of the Evidence Act, 2011.

With respect to paragraphs 3.18 and 3.19 of the Claimant’s Final Written Address, the defendant replied that, the case of New Nigeria Bank Plc. V. G.C. Osunde (supra) cited and relied upon by the claimant is at variance with the instant case where the defendant gave evidence relating to the misconduct of the claimant which led to his dismissal. That the non-production of the report of the Disciplinary Committee does not in any way lift the burden of proof placed on the claimant by law. See UBN V. Ogboh (1995) 2 NWLR (Pt. 380) at 669, Billie V. Multilinks (2012) 29 NLLR (Pt. 84) 476 paras A-B, UTB V. Ozoemena (2007) All FWLR (Pt. 358) 1014 at 1025 paras C-D, Dumez Nig Ltd V. Nwakhoba & 3 Ors (2009) FWLR (Pt. 461) 842 at 850 paras F-H.

On the Claimant’s issue two, it is argued that employments not covered by statutes are governed by the terms of the agreement between the parties, referring to Federal Medical Centre, Ido Ekiti V. Olajide (2013) 30 NLLR (Pt. 86) 172 at 207 paras C-D. That the cases cited and relied upon by the claimant in paragraphs 3.20 and 3.22 of the claimant’s written address are not applicable to this case because they relate to public bodies and public servants whose employment were governed by statutes. That what guides the procedure of the defendant is the Employee Handbook and since the claimant was issued queries which he answered, an opportunity had been given to him to present his case at the Disciplinary Committee which fulfilled the principle of natural justice.

That the claimant who responded to the query issued to him without raising any issue cannot now complain that the said query was not in line with the defendant’s Employee Handbook as he would be seen to have waived any right he allegedly had. See Sylva V. INEC (2017) ALL FWLR (Pt. 875) 2047 paras F-G. That the use of the word ‘within’ in the Handbook denotes the maximum time an employee can get to answer a petition which means it could be answered within a lesser time and the time given to the Claimant was within 48 hours stipulated in the Employee Handbook. See Ayantola V. Action Congress and Ors. (2009) All FWLR (Pt. 475) 1823 para E.

That the defendant gave the claimant fair hearing in line with the Employee Handbook before his summary dismissal because he had knowledge of the allegation against him and defended himself severally.

With respect to the claimant’s issue three, it is submitted that the burden is on a party seeking declaratory reliefs to prove same positively and not to rely on any weakness on the case of his adversary. That such declaratory reliefs are not granted even on mere admissions or in default of pleadings, referring to Okedara V. Adebara (1994) 6 NWLR (Pt. 349) 186 paras G-H.

That the claimant who has failed to prove his case is not entitled to general damages.

COURT’S DECISION

Having carefully considered the pleadings, evidence and submissions of counsel for the parties, I am of the view that in order to avoid proliferation of issues as the parties would seem to have done in their written submissions, the lone issue that arises for the consideration of the court in this suit is whether from the totality of the evidence placed before this Court, the Claimant has proved his case to be entitled to the reliefs being sought in this suit?

Before I consider this lone issue, it may be crucial to first resolve some preliminary issues that arose in the course of the trial of this suit particularly relating to the admissibility of some of the exhibits admitted by the court. While the Defendant is urging the court to expunge exhibits CW19, CW23, CW24 and CW26 from the records of the court on the ground that they did not meet the legal requirements of admissibility and ought not to have been admitted by the court, the Claimant is urging the court to expunge from its records exhibit CW30 which was tendered through the claimant during cross-examination by the defendant’s counsel on the ground that, the defendant did not plead the document or even facts relating to the document. That exhibit CW30 was not frontloaded by the defendant.

I have looked at the arguments of counsel with respect to the admissibility of these exhibits, and for exhibit CW19, the contention of the defendant is that being a court process it ought to have been certified, and that since the exhibit is allegedly not certified, it should be expunged from the court’s records. Exhibit CW19 is a copy of Statement of Defence filed in Suit No. NIC/PHC/08/2012 between Analiefo Nzegwu V. First Bank Plc. Contrary to the contention of the defendant, it is evident on the face of the exhibit that same was duly certified as it carries the certification stamp of this court bearing the name of Peter Ortese Esq. and duly signed and dated 29^th April, 2015. I therefore find no merit in the objection and hold that exhibit CW19 was properly admitted and same shall be countenanced in the determination of this suit.

With regard to exhibit CW23, the contention of the defendant is that, the exhibit being a bank statement does not contain the name, signature and stamp of the issuing officer of the bank for the purpose of its authentication. Having looked at the said exhibit CW23, I am satisfied that same being original bank statement issued on the letterhead of the Defendant was properly admitted and I find no merit in the objection of the defendant. The objection with regard to the admissibility of exhibit CW24 is to the effect that, it was neither signed nor does it indicate the name of the sender and where it emanated from. I have carefully and painstakingly looked at the said exhibit CW24, and I must state that, apart from the date and name of the claimant that appeared on the exhibit, there is nothing to link the defendant to the exhibit. It is neither issued in the defendant’s letterhead nor signed by any named official of the defendant. If it were an email then it should have disclosed the sending email address and the receiving email address. The law is as rightly argued by the learned counsel to the defendant that, an unsigned document is not worth any scintilla of weight and this court shall not ascribe any weight to exhibit CW24. See Alhaji Amadu Kankia Bello & Ors. V. Alh. Ma’aruf Umar Sanda & Ors. (2011) LPELR-3705(CA). Even though the said exhibit CW24 was admitted without objection, same is hereby expunged from the records of the court as it ought not to have been admitted ab initio. See the apex court decision in the case of Dr. Imoro Kubor & Anor. V. Hon. Serieke Henry Dickson & Ors. (2012) LPELR-9817(SC), where it was held thus: “On the sub issue as to whether the court has the power to expunge from its record evidence or documents earlier admitted without objection by counsel, it is settled law that the courts can do that and has been doing that over the years. See NIPC Ltd. V. Thompson Organization Ltd. (1966) 1 NMLR 99 at 104 where LEWIS, JSC stated the law as follows: “It is of course the duty of counsel to object to admissible evidence and the duty of trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court to when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”

On exhibit CW26, the contention of the learned counsel to the defendant is that, it is not signed and does not also bear the identity of the sender of the memo. I have examined the said exhibit CW26 and contrary to the argument of the defendant, the memo originated from Branch Manager Rumuomasi Branch to Executive Director, South Directorate through BDM PH and carries the name of one Samuel Egube as the initiator of the memo. I therefore hold that exhibit CW26 was properly admitted and the objection of the defendant is hereby discountenanced.

Exhibit CW30 which was admitted through CW during cross-examination by the defendant’s counsel was objected to by the learned counsel to the claimant on the ground that, the document being a photocopy no explanation was made as to the whereabouts of the original. That the said exhibit CW30 was neither pleaded nor did the defendant plead facts relating to the exhibit. Having examined exhibit CW30, it is observed that same is a letter written by the Rumuola Branch of the defendant for the renewal of loan facility and addressed to the Managing Director C & M Limited. It is pertinent to state that at the hearing of this matter on 14^th of February, 2018 when the CW was shown the document he identified same before it was tendered. The document is relevant to the facts in issue in this suit. I therefore hold the view that same was properly admitted by the court and shall be relied upon in this judgment.

Having dealt with the preliminary points, I shall now consider the lone issue identified for determination in this suit.

In the bid to prove his claims before the court, the Claimant who testified for himself as CW informed the court vide his witness statement on oath which was made on the 11^th day of March, 2016 and the further deposition made on the 12^th day of December, 2017 that, he was employed by the defendant in 2005 as a Manager and the appointment was confirmed in 2006. That he was subsequently promoted to the posts of Senior Manager vide letter of 30^th July, 2007 and Principal Manager during the 2008/2009 promotion exercise of the defendant. That due to his dedication and diligence at work, he was issued a commendation letter on the 19^th of April, 2010.

According to the witness, upon his posting or transfer to the defendant’s Rumuomasi Branch sometime in April, 2009 as the Branch Manager, one of the accounts he met belonged to C&M Limited which had already been enjoying an invoice discounting facility and managed by the Relationship Manager, one Mrs. Doris Onyema. That it was the said Mrs. Doris Onyeama who initiated, created, booked and got approval for the account in 2008, and that the said officer at no time informed him of any challenge with the account; and no audit query was raised by the audit unit of the defendant concerning the account in question. That prior to the coming into effect of the Defendant’s policy of 28^th August, 2012 when the defendant categorized confirmation limits for its managers, confirmation of contract/payment of domiciliation credit facilities was done exclusively by the Relationship Manager. That after his transfer to Yenagoa, Bayelsa State as Group Head, Public Sector South in 2010, sometime in April of 2011 he received a Memo from the defendant’s Internal Audit Department requesting for information on the officers responsible for some non-performing facilities to which he responded to. That the defendant’s Internal Audit Department issued queries to Mrs. Doris Onyema and Mr. Ikechukwu Nworah concerning the account of C&M Limited because the company had a non-performing facility and diverted proceeds from a contract which was domiciled with the Defendant upon which the company’s invoices were discounted, and the defendant was investigating the circumstances surrounding the diversion. To the witness, he was merely copied for his attention as a potential witness as no query was directed at him because he had been transferred to Bayelsa State when the diversion of the contract proceeds took place. That he had nothing to do with the said account as the Relationship Manager was fully in charge of the account, more so that, Mrs. Doris Onyema took full responsibility for the management of the said account and did not implicate either the claimant or any other person. That at the Disciplinary Committee where he merely appeared as a witness, all questions and requests for explanation by the Committee were directed at Mrs. Doris Onyema and Mr. Ikechukwu Nworah since there was no allegation against him.

The witness further informed the court that he was shocked to receive a letter dated 2^nd November, 2011 placing him on “90 days recovery suspension” which is not known to the Defendant’s Employee Handbook. That he protested as he was innocent of the allegation and sequel to his pleas he received a letter dated 20^th December, 2011 from the defendant recalling him from the 90 days recovery suspension and he resumed his duties until sometime in June, 2012 when he was again suspended and subsequently dismissed on the 6^th of December, 2012. That despite his appeals against the said dismissal, the defendant refused and or neglected to consider is pleas

According to the witness, by the defendant’s Employee Handbook, an employee can only be summarily dismissed for gross misconduct/negligence and in his case there was no such allegation of gross misconduct/negligence against him. That he was neither informed nor tried of any act of gross misconduct for which he was summarily dismissed. That contrary to the defendant’s Employee Handbook which stipulates that an employee shall not be suspended from duty for a period exceeding six months, he was suspended for more than six months and denied his right to fair hearing because no clear cut case was presented against him to afford him the ample opportunity to defend himself. That since he rendered services to the defendant by attending to some customers, guiding and directing his subordinates as well as assisting Mrs. Doris Onyema and Ikechukwu N. Nworah in their recovery efforts of the C&M Limited facility which led to the restructuring of the facility to the defendant’s benefit, he should be remunerated in full for the period of the suspension. The witness then informed the court that before his dismissal, his last compensation package was as particularized at paragraphs 39 – 40 of his statement on oath.

The Defendant on its part called one Mr. Onyibor Uchay, the Business Support Consultant in Human Resource Department of the Defendant who testified as DW. The witness informed the court vide his statement on oath which was made on the 24^th day of May, 2018, that the Claimant’s transfer to the Rumuomasi Branch was a routine exercise to fill up the vacant position of the Branch Manager, and that transfer of personnel from one branch to another is generally a routine exercise conducted at the discretion of the defendant. That a Branch Manager whose duty it is to supervise all the other officers in a branch and see to the smooth running of all accounts in the branch will be seen to have breached such duty where he abdicates same to a subordinate under the pretext that he did not introduce the customer and create the accounts. That the claimant failed to monitor the C&M Limited account in his branch by properly supervising his subordinate thereby leading to a loss of N1billion to the defendant. That at no time did the defendant’s Relationship Manager had unlimited confirmation capacity over payment domiciliation without the concurrence of the Branch Manager who is the immediate supervisor of the Relationship Manager.

According to DW, the Claimant was queried vide Memo of April, 2011 and faced the Disciplinary Committee twice on 28^th October, 2011 and 9^th May, 2012 before he was suspended on 2^nd November, 2011. That the claimant’s transfer to Yenagoa Branch was to expose him to public sector banking and to also afford the internal audit the opportunity to unearth some unwholesome transactions which had been suppressed by the Claimant. That the claimant did not appear before the disciplinary committee as a witness but as someone who had questions to answer concerning his role in the management of the C & M Limited account.

DW further informed the court that the Claimant who appeared before the Disciplinary Committee to defend himself was not dismissed for the creation and recommendation of C&M Limited or granting of loan facility to the said company but for his failure to supervise the Relationship Manager whose activities were directly under the supervision of the Claimant.

That due to the Claimant’s dereliction of duties, C&M Limited diverted depositors’ funds of over N1 Billion and the Claimant was put on 90 days recovery suspension vide letter of 2^nd November, 2011. That the Claimant was subsequently recalled vide letter of 20^th December, 2011 pending the completion of investigation by the Chief Internal Auditor.

That upon the completion of the Internal Auditor’s Investigation and reference to the Disciplinary Committee, the said Disciplinary Committee recommended suspension of the Claimant and other officers to the defendant’s Management Committee who overruled the recommendation of the Disciplinary Committee and decided on termination or dismissal depending on what was recovered by the Claimant and others from the C&M Limited. That the Claimant was aware of the reasons for his dismissal as being gross negligence of duty and the defendant refused to respond to the letters from the Claimant’s solicitors because the letters demanded for a reversal of actions that had been concluded by the defendant.

From the evidence adduced in this case, particularly exhibits CW1-3, CW2, CW3, CW4, CW5, CW7 and CW17, it is manifest that the facts of the claimant’s employment and subsequent dismissal by the defendant are not in dispute as even the defendant has neither denied that the claimant was its employee nor that it dismissed the claimant from service. These facts therefore need no further proof in the circumstance of this case.

See Aisha Jummai Alhassan & Anor V. Mr. Darius Dickson Ishaku & Ors (2016) LPELR-40083(SC).

It will therefore seem that the only bone of contention in this suit is whether the dismissal of the claimant by the defendant was properly carried out as argued by the defendant or it fell short of the required procedure and the law as argued by the claimant.

It will therefore be apposite to reproduce exhibit CW17 which is the dismissal letter for better appreciation of its contents.

December 6, 2012

HCM/CI&ER/HODC 2011/75

Ejike K. Agbiriogu (PM) (SN19347)

C/O Public Sector Yenegoa

Dear Ejike,

SUMMARY DISMISSAL

This letter serves to advise you that you are summarily dismissed from this organization with immediate effect.

Please take note and be informed accordingly.

Yours Sincerely,

For: FIRST BANK OF NIGERIA PLC

Ayodele O. Jaiyesimi

HEAD, HUMAN CAPITAL MGT. & DEVELOPMENT

The crux of the claimant’s case before the court and as strenuously argued by his counsel is that he was not afforded the opportunity to exculpate himself of the allegations against him; that he was not invited to appear before any disciplinary committee of the defendant as someone who had a case to answer but was rather invited to appear as a potential witness since no allegation was directed at him. According to him, the allegations were against his subordinates so he only appeared before the Disciplinary Committee as a witness.

Paragraph 11 of the Defendant’s Employee Handbook (exhibits CW22 and DW4) which provides for the disciplinary procedure states as follows:

“Management reserves the prerogative to discipline erring staff in accordance with the Bank’s laid down rules and regulations. The following procedure applies:

(a) When an employee fails to perform his/her work satisfactorily or commits an act of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours.

(b) Further investigations may be carried out on receipt of the reply to the query.

(c) Depending on the gravity of the offence, the case could be referred to the Head Office Disciplinary Committee (HODC) or Human Capital Management Disciplinary Committee (HCMDC) or any of the Regional Disciplinary Committees depending on the location/grade of the affected employee. Subsequently, the employee may be left-off, cautioned verbally, issued caution letter, warned in writing or have his/her employment terminated/summarily dismissed depending on the decisions of the Disciplinary Committee(s).

(d) DEFENCE AT THE DISCIPLINARY COMMITTEE: Any employee whose case is being tried for the first time at Regional or Head Office levels should be given an opportunity to appear before the Disciplinary Committee. If the Committee is sitting outside the employee’s location, the Bank will bear the employee’s cost of transportation, accommodation and feeding during the visit but subject to approval.

(e) APPEAL AGAINST SANCTIONS: A staff who is sanctioned and not satisfied with the Disciplinary Committee’s decision has the right to appeal to Head Office Disciplinary Committee within 3 months of receipt of the letter of sanction and thereafter such appeal will be time barred. Except there is a clear evidence of the introduction of new facts, after an appeal case has been treated, repeated appeals will not be tolerated. Appeals should not go beyond two hearings.”

The law is as rightly argued by the learned counsel to the Claimant that, all judicial and quasi-judicial or administrative bodies when acting judicially must at all times comply with the principles of fair hearing whenever the rights of citizens will be affected by their actions. The Defendant’s disciplinary committee saddled with quasi-judicial functions was obligated to afford the claimant the opportunity to defend himself of the allegations raised against him. See National Judicial Council & Ors V. Hon. Mrs. Justice C. P. N. Senlong & Ors. (2010) LPELR-4582(CA) where the Court of Appeal held thus on the need for employers to give employees fair hearing before disciplinary actions are taken against them: “All that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. Stated differently, to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. See Arinze v. First Bank of Nigeria Ltd. (2004) 12 NWLR (Pt.888) 663 at 675-676, 679; Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (Pt. 457) 632; Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt. 404) 658; Olatubosun v. NISER (1988) 3 NWLR (Pt.80) 25.”

The claimant tendered exhibit CW12 which is a copy of a memo dated 11^th August, 2011 and addressed to one Doris Onyema (Relationship Manager) ostensibly as proof of the fact that while his colleagues were queried, no such letter was directed at him. I have observed however that, contrary to the evidence of the claimant, exhibit DW1 is also a memo dated 11^th August, 2011 and addressed to the claimant requesting for his comments on the allegation of diversion of contract proceeds from the C & M Limited – N1billion invoice discounting facility.

It is however startling that the claimant who for whatever reasons said he was not issued any query tendered exhibit CW13 which is a memo written by him dated 12^th August, 2011 as his own response to exhibit DW1. I am therefore of the considered view that, the Claimant was duly queried on the allegation of diversion of contract proceeds from the C & M Ltd (N1Billion Naira Invoice Discounting Facility), while exhibit CW13 was his response to the said query. In any case, the claimant admitted during cross-examination that he was queried and that he appeared before the defendant’s disciplinary committee once or twice. I therefore believe the evidence of DW when he informed the court during cross-examination that the claimant was queried and that he appeared before the disciplinary committee and answered questions. The law is now trite that, where a person has been given reasonable opportunity to be heard and has been either heard or willingly forfeited the opportunity, he cannot turn around and complain of being denied fair hearing. The Claimant in the instant case who was afforded the opportunity of being heard and he utilized the opportunity by responding to the query and appearing before the defendant’s disciplinary committee cannot now complain that he was denied his right to fair hearing. See Onowu Anthony Obiagbaso Enukeme V. Didacus Onu Mazi (2014) LPELR-23540(CA), Sir Jude Agbaso V. Hon. Simeon Iwunze & Ors. (2014) LPELR-24108(CA).

The learned counsel to the claimant had argued robustly at paragraph 3.23 of his final written address that, exhibit DW1 cannot qualify as a query because asking the claimant for his comments on the subject matter of the diversion of contract proceeds falls short of what a query should contain. With respect to learned counsel, this argument is misconceived. To ask someone for his comments on an issue under investigation is nothing more than asking the person to give his own account of the story, and in this case, the subject of investigation and the account being investigated are clearly stated on exhibit DW1.

It is therefore evident from the evidence before the court that it was when the defendant was not satisfied with the response of the claimant and believed that he had failed to exculpate himself of the allegations against him that the defendant suspended and subsequently dismissed the claimant from service. I therefore hold that, the issuance of query to the Claimant and his response thereto as well as invitations to the disciplinary committee have complied with the principle of natural justice/fair hearing.

The claimant was summarily dismissed from the office, and by the provisions of paragraphs 11.5 of exhibits CW22 and DW4, an employee may be summarily dismissed for certain acts of gross misconduct/negligence. The acts that may lead to summary dismissal were then listed at sub-paragraphs a – k of the said paragraph, and that no notice shall be given and all terminal benefits shall be forfeited to the bank in the case of summary dismissal.

The law has equally been settled that any conduct of an employee that is of grave and weighty character as to undermine the trust between the employee and the master will warrant summary dismissal from service. See the apex court decision in Teliat A. O. Sule V. Nigerian Cotton Board (1985) LPELR-3124(SC).

The allegation against the Claimant relates to the diversion of contract proceeds which led to the loss of about one billion naira by the defendant. This fact was stated by DW in paragraph 11 of his deposition on oath when he informed the court that, the claimant failed to properly monitor and supervise his subordinates which led to the reckless management of the C & M Limited account thereby occasioning loss of about N1billion to the Defendant. This act clearly weakened the confidence and trust that existed between the claimant and the defendant and also affected the business interests of the Defendant.

In the case of P. C. Mike Eze V. Spring Bank Plc (2014) 3 ACELR 39 at 52 – 53, the Supreme Court stated thus on what will warrant a summary dismissal:

“In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See Boston Deep Sea Fishing Co.v. Ansel (1888) 39 Ch. D339; Babatunde Ajayi v. Texaco Nigeria Ltd & Ors. (1987) 3 N.W.L.R. (Pt. 62) 577. And gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss the employee. See Ridge v. Baldwin (1953) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599. To warrant a summary dismissal, it suffices that the conduct of the employee, as in the present case, is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee as found by the trial court and affirmed by the court below.”

I am therefore of the considered opinion that, going by the evidence on record, the claimant has failed to prove his case as required by law. His main grouse in this suit is that he was not given fair hearing before being summarily dismissed, but there is ample evidence that he was not only queried to which he made representation in writing, but also appeared before the Disciplinary Committee with a view to exculpating himself of the allegations against him. The lone issue identified for determination in this suit is therefore resolved against the Claimant.

In the final result, this suit fails for lacking in merit, and is hereby dismissed.

I make no order as to cost.

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge

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