IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 16, 2018
SUIT NO. NICN/LA/326/2014
BETWEEN
Mr Emeka Onyema – Claimant
AND
Diamond Bank Plc – Defendant
REPRESENTATION
U. P. Emeka-Chiemenem, for the claimant.
Eyitayo Ogunnubi, with G. M. Adetona and Adebayo Bello, for the defendant.
JUDGMENT
1. The claimant filed this suit on 5th August 2014 vide a complaint and the accompanying originating processes. The complaint and statement of facts were subsequently amended vide an order of this Court granted on 19th October 2016. By the amended complaint and amended statement of facts, the claimant is claiming against the defendant the following reliefs:
(a) A declaration that the letter of dismissal issued by the defendant and dated the 27th of June, 2014 is in violation of the claimant’s right to fair hearing and/or his right against double jeopardy, and is accordingly, invalid, unconstitutional, null and void.
(b) A declaration that the defendant was estopped from issuing the letter of dismissal dated the 27th of June 2014 to the claimant, having obtained from the claimant the full performance of all his obligations to secure the forfeiture/withdrawal of the claims against the defendant by Sarner PFM Resorts Ltd, in consideration for the full resumption of employment by the claimant.
(c) An order of reinstatement of the claimant to his employment with the defendant.
(d) An order for the defendant to pay the sum of N6,285,111.00 (Six Million Two Hundred and Eighty-Five Thousand, One Hundred and Eleven Naira) being seven (7) months outstanding salaries due to the claimant (at N897,873.00 per month) from the 6th of December 2013 until the 6th of July 2014, and thereafter until final judgment.
(e) General, aggravated and exemplary damages in the sum of (N100,000,000.00) One Hundred Million Naira for breach of contract.
2. The defendant in response to the claimant’s original complaint filed a statement of defence and the accompanying defence processes, which it now maintains as its defence to the claimant’s amended complaint and statement of facts. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C14. The claimant in his written address puts the exhibits he tendered as Exhibits C1 to C15. This is not correct as only Exhibits C1 to C14 were admitted and marked as such. The defendant on its part called one witness, Mr Ugonna Onyema, Head of Performance and Employee Engagement in the Human Capital Management Division of the defendant, who testified as DW tendering Exhibits D1 to D7 in the process. At the close of trial parties filed and served their respective written addresses: the defendant’s final written address was filed on 29th August 2017, while the claimant’s was filed on 5th January 2018. The defendant’s reply on points of law was filed on 11th January 2018.
THE CASE OF THE CLAIMANT
3. The claimant was employed as a Banking officer by the defendant in 2007 and earned promotions over the years rising to the position of Assistant Manager in 2013. His salary was reviewed effective 1st January 2014 to N10,774,466.05 per annum. In October 2013, the claimant received an invitation to appear before a Personnel Management Committee on an investigation of petition made by one Sarner PFM Resorts Ltd, a customer of the bank concerning an alleged diversion of funds to an account other than the one instructed. To the claimant, despite the fact that the allegation was that the fraud and unauthorized transfer was perpetrated by one Osita Iroku (and not the claimant), he was at the Committee meeting accused and found guilty of initiating and directing the diversion of the funds thus exposing the bank to a possible liability of N70 Million. That on 6th November 2013, the defendant communicated to him by email his punishment, which was one month’s suspension without pay effective immediately. The claimant proceeded on the said suspension without pay and upon completion of the punishment duly resumed work on 6th December 2013 but was denied access onto the premises. On 17th December 2013, the claimant received another email requiring him to process on a further one month suspension on the ground that the earlier suspension was to enable the defendant resolve the case of the allegation made by the said customer. His salary was not paid since 6th December 2013 nor was he allowed to resume work. The claimant accordingly is claiming his salary from 6th December 2013 till date at the sum of N897,873 per month.
4. On 27th June 2014, without being accused of any other offence, the claimant’s employment was terminated by dismissal through a letter dated 27th June 2014 headed “Cessation of Employment”. To the claimant, he was not given any fair hearing by the Personnel Management Committee of the defendant before he was punished by means of suspension without pay. That the letter of dismissal dated 27th June 2014 was issued in breach of the claimant’s constitutional rights to fair hearing and against double jeopardy; as such the dismissal letter is invalid, null and void. That because of the letter of dismissal, he has suffered huge psychological and emotional trauma, loss of standing amongst his colleagues in the banking industry and amongst other employees of the defendant; hence the instant suit.
THE CASE OF THE DEFENDANT
5. The case of the defendant is that the claimant’s employment with it was terminated in line with its Human Capital Management Policy on Discipline which the claimant was aware of for his involvement in the case of gross misconduct which brought a disrepute to the defendant. To the defendant it received a complaint in July 2013 from one of its customers, Sarner PFM Resorts Ltd, that its funds transfer instructions were fraudulently altered such that the funds meant to be transferred to Zenith Bank were diverted to Diamond bank without its authorization. That the ensuing investigation by the defendant showed this complaint to be true; and the investigation itself and a review of the funds transfer forms unearthed a lot of irregularities including the fact that the new Diamond Bank account into which the funds were wrongly transferred to was created by claimant the same day Sarner PFM Resorts Ld gave the instructions that the funds be transferred to Zenith Bank. That upon the conclusion of preliminary investigation, the claimant was invited for a Personnel Management Committee hearing on 31st October 2013, where the claimant admitted that he altered funds transfer forms that facilitated the fraudulent diversion of funds authorized at his request without recourse to the customer and that the new Diamond Bank account was opened on 27th December 2012 to accommodate the diverted funds; whereupon the claimant and another were asked to proceed on one month suspension. That the duo were also mandated to pursue a satisfactory refund of the amount in dispute by the beneficiary or a confirmation letter from Sarner PFM Resorts Ltd that the transfer has been regularized.
6. The defendant went on that its Personnel Management Committee at its subsequent meetings found that despite the one month timeline and extension afforded the claimant, the claimant failed and neglected to get a resolution letter for obtain ratification or authorization of the transfer from the customer. That the delay by the claimant to resolve this issue as he was asked led to the customer making claims on the defendant and also reporting the matter to the Economic and Financial Crimes Commission (EFCC) who then invited the claimant through the defendant’s Managing Director (MD). To the defendant, the acts of the claimant amount to negligence, absence of due care in the exercise of his duties, dereliction of duty, hence a breach of the defendant’s operational and regulatory policy, which yields to discipline in the nature of the dismissal of the claimant, a dismissal that is regular and constitutional. That having given the claimant a hearing, i was not necessary to go through a criminal trial first before dismissing the claimant; and that the applicable sanction is not restricted to suspension alone especially as this was a case of gross misconduct. Accordingly, that the claims of the claimant are frivolous, vexatious and a flagrant abuse of court process. The defendant then urged the Court to dismiss this suit with cost.
THE SUBMISSIONS OF THE DEFENDANT
7. The defendant submitted three issues for determination, namely:
(1) Whether the defendant has the right to terminate the employment of the claimant.
(2) Whether the defendant rightly dismissed the claimant for gross misconduct and whether it complied with the required procedure of the law in dismissing the claimant for gross misconduct.
(3) Whether the claimant is entitled to damages and other claims in the circumstances of this case.
8. On issue (i), the defendant submitted that it can terminate the contract of employment of the claimant at any time and for reason or no reason at all provided it complies with the terms of the contract of employment, citing Ajayi v. Texaco Nigeria Ltd [1987] 3NWR (Pt. 62) 577. To the defendant, the letter of Cessation of Employment (Exhibit C6) issued to the claimant clearly stated the reason for the dismissal, which is that it was in line with defendant’s policy, which is in conformity with the defendant’s Human Capital Management policy. Accordingly, that the claimant’s claim that his employment was terminated as a result of his gross misconduct in the breach of the defendant’s operational and regulatory policy on discipline in full compliance with the defendant’s Human Capital Management policy that is not limited to suspension (Exhibit D6 page 2, last paragraph of 2. Dereliction of duty/Negligence) as his claim of having obtained letter from Sarner PFM Resort Limited to withdrawal of claims against the defendant and having served his punishment by suspension via Exhibits C11, C12 and C13 is baseless as he failed to establish this allegations by evidence, citing NNPC v. Evwori [2007] All FWLR (Pt. 369) 1324. That the case of the defendant as per paragraph 17 of its statement of defence is that based on its conclusion of the investigation conducted and the claimant’s admission of dereliction of duty at the hearing, the claimant was found to have breached its operational and regulatory policy on discipline and was dismissed for dereliction/negligence and gross misconduct in line with appropriate sanctions which is not limited to suspension.
9. The defendant went on that in master and servant relationship, even where the right of parties to determine the contract is not expressly stated in the contract of service, the law recognises that parties have a right to determine the contract upon giving reasonable notice, citing Arinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 639) 78 CA. Furthermore, that all the documents relied upon by the claimant in support of his claims have not in any way whatsoever supported his claim that his employment was wrongfully terminated or done contrary to the terms of his contract of employment, referring to Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 at 414. That since the law recognizes the right of the defendant to hire and fire its staff and such right was duly exercised by the defendant in respect to the claimant, there is no remedy available to the claimant as there was no wrong done to him in the circumstance. That it behoves on the claimant to establish his allegation that his employment was unlawfully terminated and done contrary to the terms of his contract of employment. That this, the claimant has failed to do as his evidence and documents before this Court do not in any way show same, referring to Ogumka v. CAC [2010] LPELR-4891(CA). That based on the fact that the claimant has failed to establish by evidence that his termination/dismissal was contrary to his contract of employment, and the recognition by law that the defendant has a right to terminate the claimant’s employment, the Court should hold that the defendant has a right to determine the claimant’s contract of employment. The defendant then urged the Court to dismiss the claimant’s reliefs as same are frivolous and lacking merit.
10. For issue (2) i.e. whether the dismissal of the claimant was rightful, the defendant referred to P. C. Mike Eze v. Spring Bank Plc [2011] SC 69/1998, which held that an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct, and then submitted that the claimant was rightly dismissed having been found guilty of gross misconduct in terms of negligence and dereliction of duty as the Branch Manager of the Defendant’s 60 Opebi Road Ikeja by initiating, directing and authorizing a customer’s mandate on a fund transfer form even when same has been altered without being countersigned as required (referring to Exhibits D1A and D1) which are in breach of the defendant’s operational and regulatory policy. That the defendant complied with the required procedure of law in dismissing the claimant from its employment, citing B. A. Imonike v. Unity Bank of Nigeria [2011] SC 68/2003, where the Court outline the procedure that should be taken when dismissing on employee of misconduct, which is: giving of query to the employee; allowing the employee to give an answer to the query; and taking decision after the employee has given an answer to the query. That all this according to the Court satisfies the requirement of fair hearing or natural justice.
11. The defendant continued that contrary to the claimant’s claims that the defendant’s dismissal letter dated 27th June 2014 is in violation of the claimant’s right to fair hearing and/or his right against double jeopardy, and is accordingly, invalid, unconstitutional, null and void, it pertinent to note that the defendant fully complied with the procedure outlined by the Supreme Court in the above cited authority. That the defendant via its Personal Management Committee sent an invitation to the claimant, which the claimant honoured, and the claimant was equally given the opportunity and privilege to state his position in regard to allegation leveled against the defendant by Sarner PFM Resort Limited. That this fact was stated in paragraph 6 of the claimant’s written statement on oath and was equally admitted by the claimant during cross-examination in open Court and he equally admitted in open court during cross-examination that he was aware of the defendant’s Human Capital Management Policy on discipline which not limited to suspension. That it is trite in law that an admitted fact by a contending party needs no further proof, referring to Buhari v. INEC [2008] 12 SCNJ 1; [2008] All FWLR (Pt. 437) 42 and Bankole v. Adeyeye [2014] All FWLR (Pt. 721) 1583. That the claimant having made this assertion, has clearly admitted that he was given fair hearing before his dismissal by the defendant’s Personal Management Committee and equally that the defendant was in full compliance to the procedure laid down by law for dismissal of an employee that had committed gross misconduct in the cause of his/her to his employer. That this was a contradiction to his claim and relief of violation of his right to fair hearing and/or his right against double jeopardy, and is accordingly, invalid, unconstitutional, null and void. The defendant then submitted that the claimant has failed to establish by any cogent or credible evidence that the defendant’s letter dated 27th June 2014 was in violation of his right to fair hearing or his right against double jeopardy.
12. The defendant went on that assuming though not conceding to the fact that the defendant had wrongfully dismissed the claimant or had not taken the appropriate steps and measures laid down by law in dismissing the claimant from it establishment for misconduct, it is pertinent to note that a dismissal cannot be invalidated, unconstitutional, null and void and in sequel to this, thus make the claimant’s relief before this Court incompetent. That it is trite law that the only relief or remedy available to an employee alleging that his employment had been wrongfully terminated or dismissed is to sue for damages and the measure of such damages is always the salaries for length of time, for which the notice of termination could have been given in accordance with the contract of employment, referring to Produce Market Board v. Adewunmi (1972) 11 SC 111; ANLR (Pt. 2) 433 and S. B. Olanrewaju v. Afribank Plc [2001] FWLR (Pt. 72) 2008. That by this case law authority, the defendant’s of cessation of employment letter dated 27th June 2014 cannot be invalidated, or seem to be unconstitutional, and regarded as null and void by this Court by reason of same being as incompetent relief.
13. Furthermore, that it is also not in dispute that from the facts and evidence placed before the Court the claimant’s employment with the defendant has no statutory flavour and so not protected by statute and it is also crystal clear the defendant was not a public service or corporation; accordingly, the claimant’s claims are equally incompetent and same cannot be granted by this Court. That it is only where an employment is protected by statute that the employee who is alleged to have been unlawfully dismissed may be re-instated to his position, referring to S. B. Olanrewaju v. Afribank Plc (supra) and Shitta Bay v. Federal Civil Service Commission [1981] 1 SC 40. The defendant then submitted that the Court should hold that the defendant has rightly dismissed the claimant for gross misconduct and the proper procedure was followed and that the claimant’s claims are incompetent and so should be dismissed.
14. Regarding issue (3) i.e. whether the claimant is entitled to damages, the defendant submitted that a claimant would only be entitled to damages where such claimant is able to establish a wrongful termination of his employment. That this is not the case in this instance as the claimant herein has failed to establish that his termination was wrongful. That aside from the failure of the claimant to establish the alleged wrongful termination, it is settled law that in a master-servant relationship, the law recognizes the right of parties to determine the contract after giving reasonable notice to the other party. That the defendant as per paragraph 17 of its statement of defence has stated the reason for the dismissal of the claimant from its employment (referring to Exhibit C6). That these facts were not challenged or contradicted by the claimant in his pleadings or at a trial. It is, therefore, the defendant’s contention that it rightly exercised its right to terminate the claimant’s employment in line with the requirement of the law and in accordance with the defendant’s Human Capital Management Policy on discipline which the claimant was aware of. That the claimant is, therefore, not entitled to any sum in damages whatsoever as he did not suffer any damages that can be remedied by this Court. That if however, the termination is carried out in a manner which is contrary to the terms of the agreement between the parties, the employer must pay damages for the breach of the agreement between the parties. That the employee, however, is not entitled to general damages as in a claim in tort; he is only entitled to what he would have earned over a period required to lawfully terminate his employment, citing Garuba v. Kwara Investment Co Ltd [2005] All FWLR (Pt. 252) 469 at 481.
15. The defendant proceeded that it has also been held that general damages can only be awarded on the basis of legal evidence of probative value adduced for the establishment of an actionable wrong and should never be awarded as largesse or out of sympathy borne of extraneous consideration, citing Brig. Gen. Adekunle (Rtd) v. Rockview Hotel Ltd [2004] FWLR (Pt. 188) 1037 at 1049. That the position of the law is that in the event of wrongful termination of employment, the Court can order damages; and it is contention of the defendant that the claimant has failed to establish wrongful termination, as such the claim for payment of outstanding salary and damages must necessarily fail, citing Sokwo v. Kpongbo [2008] All FWLR (Pt. 410) 680 and section 135 of the Evidence Act 2011. he defends t accordingly urged the Court to discountenance the N100 Million general, aggravated and exemplary damages and payment of salary as claimed by the claimant and declare it as a gold-digging exercise. In conclusion, the defendant urged the Court to dismiss the claimant’s case in its entirety with cost.
THE SUBMISSIONS OF THE CLAIMANT
16. The claimant submitted two issues for determination, namely:
(i) Whether the claimant has sufficiently proved his case against the defendant.
(ii) Whether the claimant is entitled to the reliefs sought in this suit.
17. On issue (i), the claimant submitted that his claims in therein are three: his entitlement to outstanding salaries i.e. N6,285,111.00 being 7 months outstanding salaries at N897,873.00 per month from 6th December 2013 to 6th July 2014 when his employment was purportedly terminated; breach of his right to fair hearing/against double jeopardy in terms of his dismissal; and his entitlement to a claim of estoppel restraining the defendant from dismissing him given that the defendant obtained from him the full performance of all requirements/demands/representations made to him by the defendant for the continuance of his employment with the defendant.
18. On his entitlement to outstanding salaries, the claimant submitted that the defendant expressly admitted paragraphs 3 and 4 of the statement of facts in respect of the fact of employment, promotion and monthly salary of the claimant, and only denied paragraph 13, concerning the fact that they were unpaid for the period claimed in a general traverse. Incidentally, that beyond the general traverse, nowhere did the defendant aver any facts to directly or indirectly contradict the facts presented by the claimant that his said salary was unpaid for the period claimed anywhere in the statement of defence. That the defendant did not also offer or produce any evidence that it had paid the claimant for the period. That facts which are admitted whether expressly or by implication in pleadings do not need to be proved, referring to Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534 SC; Ezemba v. Ibeneme [2004] 14 NWLR (Pt. 894) 617 SC; Oguanuhu v. Chiegboka [2013] NWLR (Pt. 1351) 588 SC and Agbola v. State [2013] NWLR (Pt. 1366) 619 SC. Accordingly, that paragraphs 3 and 4 of the claimant’s statement of facts concerning the employment, promotion and amount payable as monthly salary of the claimant ought to be deemed duly proved even without the requirement of evidence by the claimant. Furthermore, that paragraph 13 of the statement of facts is similarly admitted by the implication of the defendant’s general traverse (as contained in paragraph 3 of the statement of defence) in respect of which they do not state any specific facts to contradict the claimant’s concerned averment which is supposedly denied, citing Lois Adeike v. Patricia Obiareri [2002] 4 NWLR (Pt. 758) 537 at 566, Salisu & 12 ors v. Odumade & anor [2010] 1 – 2 SC 171 at 179 – 180 and Anichebe v. Onyekwe [1965] NMLR 108 at 111. Furthermore, that although entitled to judgment on account of admission by pleading, the claimant had yet given evidence of the facts of the said outstanding salaries, which evidence was not contradicted by the evidence of the defendant. Accordingly, the claimant urged the Court to find that the claimant’s salaries in the sum of N6,285,111 being 7 months salaries from 6th December 2013 to 6th July 2014 when the claimant’s employment was purportedly terminated by dismissal, have been duly proven to be outstanding, whether by reason of express admission by pleading or by the absence of any evidence controverting the claimant’s evidence of the fact in this suit.
19. As to breach of his right to fair hearing/against double jeopardy in terms of his dismissal, the claimant addressed the breach of fair hearing first. To the claimant, the allegations for which he was tried by the defendant’s Personnel Management Committee (PMC) as evidenced in Exhibits C6, C9, C10, C11, C12, C13 and C15 were of criminal offences over which the said PMC had no jurisdiction in law. That he defendant’s response to the above averment was to deny it by general averment but it does not anywhere dispute by specific contrary averments of facts i.e. that the allegations are of a criminal offence or that the PMC does not have powers to try a criminal offence. That its only statement on the matter is that it complied with the terms of Exhibit D6. The claimant reiterated that the law is that a general traverse without more amounts to an admission and requires no further proof by evidence, citing Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 CA at 251. However, that if the Court is inclined to hold that further proof is required to establish the fact that the offence over which the PMC exercised jurisdiction is a criminal one, it is amply provided in the averments by the defendant where it admits that the same offence which it heard, comprised the claims/offence in a petition for criminal investigation to the Police and a letter from the EFCC addressed to the defendant in which it claimed to be undertaking a criminal investigation of the same matter, referring to paragraphs 7 and 13 of the statement of defence as well as Exhibits D2 and D5. That the law is well established that the PMC as indeed any other disciplinary committee has no jurisdiction to try criminal offences and that when it purports to do so, such trial infringes the constitutional right of the claimant to fair hearing, citing section 36 of the 1999 Constitution and Institute of Health Ahmadu Bello University Hospital Management Board v. Mrs Jummai R. I. Anyip [2013] 33 NLLR (Pt. 94) 1 at 23. That it is thus necessary for a prior judicial determination before further disciplinary action could be meted out on a person accused of the commission of criminal offence, citing FCSC v. Laoye [1989] 2 NWLR (Pt. 106) 652 at 706 and Osagie v. NNB Plc [2005] 3 NWLR (Pt. 913) 513 at 531. The claimant then urged the Court to hold that the procedure and processes of the said PMC was an infringement of his right to fair hearing, and void same on this ground.
20. In any event, that even if the Court finds that the defendant had jurisdiction to hear and determine the allegations or claims against the claimant, the claimant has claimed further that in spite of that, he still was not afforded fair hearing on the grounds that:
a) The customer’s allegation of fraud upon which he was tried was actually against a third party and not the claimant, and
b) The customer who purportedly made the allegations, whether against the said third party or against the claimant, never appeared before the defendant’s said committee nor made representation before it, nor was the claimant afforded the opportunity to cross-examine him/her at the hearing of the defendant’s committee before the claimant was found guilty.
The claimant here cited Ezenwo v. Kwara State Health Services Management Board [2011] 9 NWLR (Pt. 1251) 89 at 126 – 127, urging the Court to find that the hearing of the PMC over him was an infringement of his right to fair hearing.
21. The claimant went on that the law is very well established that in a case in which the claimant claims that he has been wrongly or unlawfully dismissed, the defendant bears an onus to prove that its dismissal was in accordance with the provisions/requirements of the law, citing SPDC (Nig.) Ltd v. Olarenwaju [2002] 16 NWLR (Pt. 792) 38 at 73. The claimant then proceeded to submit that although the defendant expressly gave reasons of a criminal kind for the dismissal of the claimant, it has failed/neglected to discharge in this suit its evidential burden/onus of proving its allegations before this Court (whether on a balance of probability or beyond reasonable doubt) against the claimant which culminated in its decision to dismiss the claimant. The claimant gave the following as reasons for its submission:
a) That as a preliminary point, the defendant is inconsistent in its pleading of the reason for the dismissal of the claimant in the first place. While it alleged in paragraph 10 of its statement of defence that the claimant admitted during the PMC meeting that Exhibit D1 (i.e. a copy of the purportedly altered Funds Transfer Form) was altered for the purpose of fraudulently diverting funds at his (the claimant’s) request, it then avers a contrary set of facts in paragraphs 14, 15 and 16 of its statement of defence where it stated on the basis of the claimant’s admission and the findings of the investigations of the PMC that the claimant was negligent and derelict in carrying out his official duties, to wit: processing the said transfer forms i.e Exhibit D1.
b) The defendant then further starkly contradicted the above stated averments when DW admitted during cross-examination that the claimant did not process Exhibit D1 as it was not within his job purview to so do and that the person whose responsibility it is to process transfers and who in fact processed Exhibit D1 is the Customer Service Manager, who does not take instructions from the claimant, particularly as her direct supervisor is the regional customer service manager, who is a superior of the claimant.
c) In fact the defendant made no effort either by pleading or evidence to show to this Court that the claimant committed the offence for which he was punished, but only claims that his employment was terminated according to the terms of Exhibit D6, which is a requirement far short of that demanded by the courts in SPDC (Nig.) Ltd v. Olarenwaju (supra) and Olatubosun v. NISER Council (supra).
The claimant the urged the Court to find that the defendant, having given a specific reason for the dismissal of the claimant has failed to discharge the onus which lies on him to establish that cause or reason at the trial and to the satisfaction of the Court.
22. As for infringement of the right against double jeopardy, the claimant submitted that he was duly, finally and conclusively punished in the terms of the letter dated 6th November 2013 (Exhibit C11) suspending him without pay for one month. That Exhibit C11 punished him specifically and exhaustively in the following terms:
You are hereby advised to proceed on a One (1) Month Suspension (without pay) effective immediately.
Kindly hand over your pending work to your supervisor before leaving…You are advised not to allow a repeat of this behaviour as the bank will not hesitate to apply a stiffer sanction.
To the claimant, the defendant expressly and specifically admitted the fact that the punishment as per Exhibit C11 was a final punishment, by reason of paragraph 1 of its statement of defence wherein it admitted paragraph 12 of the statement of facts.
23. However, that the defendant then went further to state that its conduct of the investigation/hearing and further/subsequent dismissal after the said suspension for one month without pay was in accordance with the provisions of Exhibit D6. That by the express provisions of the said Exhibit D6 the punishment for the offence is comprised in clause II (1) and (2) which provides as follows:
Whenever in the recommendation of the Personnel Management Committee, there is overwhelming evidence of unacceptable conduct or incorrigible behaviour on the part of an employee, the Committee shall recommend to the Chief Executive Officer (CEO) that the employee be suspended from work for a period necessary to establish whether a change in behaviour or conduct is likely to be achieved by the employee. In such cases, the suspension period shall not exceed one month without pay.
At the end of the period of suspension, the employee shall either be:
i. Reinstated in a capacity determined to be appropriate by the Chief Executive Office or disciplinary committee, or
ii. Dismissed/Terminated
Once dismissed, the employee shall not be entitled to the usual termination settlements.
24. To the claimant, in respect of this provision in Exhibit D6 vis-a-vis the terms of Exhibit C11:
a) By law as by the terms of the clause, suspension without pay is issued at the end of an investigation/hearing as a punishment and is thus distinct from suspension with pay, such as to allow for investigation.
b) At the end of the period of suspension, the defendant has only two clear options: either to reinstate the employee or dismiss him. Accordingly, that the option of reinstating the employee immediately excludes that of terminating his employment. That the clause is very clear that the time in which the said options may be exercised is “at the end of the period of suspension” and no further time.
c) No where in the said Exhibit D6 is there a provision for further suspension after the completion of that given under clause II as punishment upon conclusion of an investigation and hearing by the PMC.
d) Accordingly, in the absence of an immediate dismissal “at the end of the period of suspension” on 6th December 2013, and specifically by reason of the further letter of suspension issued to the claimant 11 days later on 17th December 2013, the claimant ought to be deemed as duly reinstated after completion of the said punishment i.e. during the 11-day period between the first suspension and the second suspension.
e) The legal implication of the further suspension issued on 17th December 2013 is certainly that the claimant continued to be an employee of the defendant, since for the claimant to be validly suspended by the defendant a second time, he first had to be an employee of the defendant. The defendant has no authority of suspension over non-employees.
f) Furthermore, in fact the content of the letter suspending the claimant without pay i.e. Exhibit C11 by itself expressly evinces an immediate reinstatement of the claimant and a conclusion of the matter when it notifies the claimant that he is “advised not to allow a repeat of this behaviour as the bank will not hesitate to apply a stiffer sanction”.
g) The implication of the said clause in the punishment clearly is that the claimant would only suffer a stiffer punishment for a repeat of the offence and not in respect of the offence for which he was being punished.
h) The said options of reinstatement or dismissal were strictly obliged to be exercised by the defendant “at the end of the period of suspension”, a phrase in the current context which literally means “immediately upon completion of the suspension”, and cannot be used to validate a dismissal issued over 7 months vide Exhibit C6, after the suspension had been concluded.
25. The claimant concluded here by submitting that in the light of the finality of the punishment comprised in Exhibit C11, and in accordance with the provisions of clause II(1) and (2) of Exhibit D6, his further dismissal in virtue of Exhibit C6 amounted to a subsequent punishment for the same offence by the same authority. That the second punishment for the same offence (without hearing him) amounts to an infringement of his constitutional right to fair hearing as well as his right against double jeopardy.
26. Regarding the question whether the defendant is estopped from dismissing him, the claimant submitted that beyond the fact of double jeopardy by reason of the second punishment (i.e. dismissal as per Exhibit C6) after full punishment had already been served in the terms of Exhibit C11, the claimant had pleaded (as per paragraphs 9, 10, 12 and 17 of the statement of facts) that upon return from his first suspension, he was issued second and third letters of suspension wherein either by indirect reference as per Exhibit C12, or by express reference by Exhibit C13, the defendant represented to him that he was to be fully returned to his job if he resolved all the issues with the customer, whose claim was the foundation of the allegations against the claimant and who specifically had made similar claims against the defendant. That the claimant also pleaded that he fully satisfied and performed the additional obligations given by the defendant to him as per the said representation, same of which the defendant similarly admitted in its statement of defence, referring to Exhibit C1 for the performance of the additional obligation by the claimant upon the said representations in Exhibits C12 and C13. The claimant also submitted that he averred that after it fully performed the further obligation upon the defendant’s representation, the defendant having received the benefit therefrom, dismissed him, a fact which the defendant has similarly admitted. That upon this premise, he specifically pleaded the claim of estoppel restraining the defendant from rescinding its commitment to the claimant by dismissing him after receiving the benefit of his performance of the defendant’s representations to him, a claim which the defendant has not denied by placing contrary facts, but which it responds to entirely by a general traverse.
27. In respect of the plea of estoppel, the claimant accordingly submitted as follows:
(a) In law, the kind of estoppel from which the defendants seek protection is estoppel by conduct or at best estoppel by waiver, citing Okonkwo v. Kpajie [1992] 2 NWLR (Pt. 226) 633 at 655 and section 169 of the Evidence Act 2011, Prospect Textile Mills (Nig) Ltd v. Imperial Chemical Industries Plc England [1996] 6 NWLR (Pt. 457) 668 at 684 and Tika Tore Press v. Abina [1973] 1 All NLR (Pt. II) 244.
(b) Accordingly, to succeed in a case of estoppel, the claimant was obliged to show first, that either by words or conduct the defendant in fact made representations to them and finally, that they then ‘acted’ or ‘reacted’ on the representations/conduct or words of the claimant.
(c) The claimant’s averments all of which have been admitted by the defendant in fact show that the representations were indeed made by the defendant to him and that he fulfilled them after which the defendant having received the benefit, rescinded to perform its undertaking to fully reinstate the claimant to his job.
The claimant accordingly urged the Court to grant the claimant’s prayer of estoppel forbidding the defendant from rescinding its obligation to the claimant after which it may on account of any subsequent misconduct of the claimant or upon the terms of its contract of employment validly terminate his employment.
28. Issue (ii) is whether then claimant is entitled to the reliefs he sees in this suit. Regarding the claim for reinstatement, the claimant submitted thus:
i) A long list of judicial authorities establish that the relief of reinstatement may only be granted to a claimant who proves that his contract of employment was unlawfully terminated as distinct from it being wrongfully terminated.
ii) The law is settled that while an unlawful termination/invalid termination invalidates the termination and entitles the claimant to reinstatement, since such termination will be contrary to the specific provisions of statute or concepts of public law under which the contract was comprised and bound, wrongful termination on the other hand infringes only the contract of employment and may be remedied only in damages.
iii) In this suit, part of the cause of action against the defendant arose out of a claim in estoppel.
iv) The law is without reproach that a claim in estoppel may found a cause of action – and in such cases is used as a sword and not as a shield, citing OAU v. Onabanjo [1991] 5 NWLR (Pt. 193) 549 at 567 and Pascoe v. Turner [1979} 2 All ER 945 at 949.
v) The claimant’s claim of estoppel is as a cause of action and is a claim in equity and not in law.
vi) Claims in equity are generally only remediable otherwise than in damages, citing Snell’s Equity 32nd edition, which states at page 427 thus: “Outside the field of trusts, the principal equitable remedies are rescission, rectification, specific performance, injunctions, the appointment of receivers and the taking of an account”.
vii) Accordingly the doctrine of estoppel, being one only in equity, creates a situation of legal incapacity and the only remedy for estoppel is in specific performance or reinstatement. Thus once estoppel is found, damages becomes inapplicable as a remedy.
viii) The defendant had argued that the remedies against wrongful termination is only in damages, which he stated to be essentially one month’s salary in lieu of notice. The said rule is based on the inherent right of the parties to the employment from being forced on each other.
ix) However, the claim of estoppel is not one for wrongful termination properly so called, but one saying that the defendant is disabled from claiming an entitlement to a right to terminate, whether rightly or wrongly.
x) The definition and purport of estoppel is not to challenge the existence of a right e.g. an employee’s right to terminate employment (in fact it only arises where a right is claimed to exist), but simply disables the defendant from claiming that right which purportedly exists. The authors of the 10th Edition of Black’s Law Dictionary define estoppel at page 667 as: “a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true”.
xi) The legal effect of estoppel is similar to that of statute-bar which prevents a party from claiming his right which ordinarily exists, citing Faponle v. University of Ilorin Teaching Hospital Board of Management [1991] 4 NWLR (Pt. 183) 43 at 54, Coker v. Sanyaolu [1976] 9 – 10 SC 203 at 221 and Onwu v. Nka [1996] 7 NWLR (Pt. 458) 1 at 17 – 19.
xii) The doctrine of estoppel whether by waiver or conduct/performance is applicable to claims in employment contracts, citing ACB v. Nbisike [1995] 8 NWLR (Pt. 416) 725 at 744, Ogunsowo v. Dana Motors Ltd [2013] 35 NLLR (Pt. 104) 229 at 282 and Ekunda v. University of Ibadan [2000] 12 NWLR (Pt. 681) 220, all of which held that an employer may be held to have condoned an infraction of en employee and so waived the right to discipline the employee.
xiii) The same incapacity by virtue of “estoppel by waiver” in the above cases is similarly applicable to “estoppel by conduct/performance” as in this suit.
29. The claimant accordingly urged the Curt to hold that the defendant is estopped from terminating the claimant’s employment, but more importantly from claiming that it had terminated the employment of the claimant, rightly or wrongly, after he had been fully punished for the same offence or after he had satisfied all the additional requirements for reinstatement, and accordingly order the reinstatement of the claimant.
30. On payment of outstanding salaries from 6th December 2013 to 6th July 2014.the claimant submitted that he has by evidence and the admission of the defendant proved that he was not paid any salary from the 6th December 2013 when his suspension without pay ended until the 6th July 2014 when he was issued with a dismissal letter, even though he had been expressly and/or implicitly reinstated during the period, referring to his earlier submissions.
31. On his claim for outstanding salaries from 6th July 2014 till judgment, the claimant submitted that this is his entitlement upon a successful claim for reinstatement on account of the doctrine of estoppel or the constitutional right of the claimant against double jeopardy, urging the Court to si grant.
32. For the claim for aggravated and exemplary damages, the claimant submitted that he averred that he is a banker, only trained to work in banks/financial institutions and that by reason of his dismissal by the defendant expressly for supposed fraudulent financial activities, he has not been employed, and indeed has become unemployable in a bank or other financial institution, referring to paragraph 18 of the statement of facts. Also, that in paragraph 19 of the statement of facts, he averred that he suffered and continues to suffer huge psychological trauma and emotional distress and loss of standing by reason of the defendant’s action. That in response, the defendant pleaded that it is not able to deny or admit the claimant’s claims in paragraphs 18 and 19 of the statement of facts. That the law is that a traverse to the effect that a defendant is not in a position to admit or deny an averment by a plaintiff is deemed to be an admission of the plaintiff’s averment Idris v. ANPP [2008] 8 NWLR (Pt. 1088) 1 at 124, Atolagbe v. Shorun [1985] 1 NWLR (Pt. 2) 360 at 366 – 369, UBN Plc v. Scopok Ltd [1998] 12 NWLR (Pt. 578) 341 at 479 and Isikwenu v. Iroh [2013] 11 NWLR (Pt. 1365) 256 at 282 – 283. Accordingly, that the defendant has in law admitted the claimant’s averments in paragraphs 18 and 19. That the contents of the said paragraphs are even more established by evidence of the claimant which is not contradicted by the defendant.
33. The claimant concluded by submitting that the question before this Court is whether having proved that the defendant by their act of dismissing him for a criminal offence which directly dis-enables or incapacitates the claimant from being able to get any career employment, the claimant will be entitled to general, special and aggravated damages in the sum claimed in this suit, where the said dismissal was wrongful or unlawful or estopped. To the claimant, except the Court grants his relief of reinstatement and payment of all outstanding salaries up till judgment, the particulars pleaded and evidence given, by which the claimant claims special and aggravated damages (paragraphs 18 and 19), entitle him to a relief in general, special and aggravated damages as he claims in this suit. That to grant otherwise will amount to rewarding the defendant for infringing the claimant’s rights and putting a lie to the long cherished fundamental basis of our justice system that where there is a wrong there is a remedy (ubi jus ibi remedium).
THE DEFENDANT’S REPLY ON POINTS OF LAW
34. The defendant reacted on points of law. To the defendant, the claimant’s submission that he has sufficiently proved his case against the defendant is misconceived as he failed to establish his allegation that his employment was unlawfully terminated and done contrary to the terms of his contract of employment, referring to Ogumka v. CAC [2010] LPELR-4891(CA). That it is axiomatic that in civil litigations, a plaintiff only succeeds on the strength of the case he was able to establish before the Court and not on the weakness of the defence against his case, citing NWDM Ltd v. Smooth [2013] All FWLR (Pt. 66) 87 at 105 and Ajakaiye v. Okondeji [1972] 1 SC 92. The defendant then urged the Court not to allow the claimant to swim out of the scope of law by emphasizing the weakness of the defendant instead of proving his case by establishing same through evidence. Also that the reliance of the claimant on Federal Civil Service Commission v. Laoye (supra) is misconceived as the case was upturned by Bamgboye v. University of Ilorln [1999] 10 NWLR 290 SC, wherein the appellant was dismissed for altering scores on a student’s examination script. The appellant had contended that this was a crime and that the Laoye principle should be applied as the domestic panel that inquired into the misconduct and recommended his dismissal had no jurisdiction. The Supreme Court held that where gross misconduct can be proved without need to find an employee guilty of acts amounting to a criminal offence, a tribunal conducting disciplinary proceedings cannot rightly be held to be trying a criminal charge. Also referred to is Federal College of Education v. Anyanwu [1997] 4 NWLR (Pt. 501) 533. The claimant accordingly urged the Court not to permit the claimant to pull the wool over its eyes by attempting to evade the law through the subterfuge of disguised, sham or artificial words but to discountenance the submission and argument canvassed by the claimant and dismiss the claimant’s case in its entirety.
COURT’S DECISION
35. I have carefully considered the processes and submissions of the parties as far this case is concerned. In doing that, I am mindful that a claim is circumscribed by the reliefs claimed. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47. The reliefs prayed for the claimant consist of two declarations and three orders; and relate to: being dismissed without fair hearing; being dismissed in conditions that amount to double jeopardy; being dismissed despite the defendant obtaining from the claimant the full performance of all his obligations to secure the forfeiture/withdrawal of the claims against the defendant by Sarner PFM Resorts Ltd, in consideration for the full resumption of employment by the claimant; an order of reinstatement; an order for the payment of N6,285,111.00 being 7 months outstanding salaries at N897,873.00 per month from 6th December 2013 until 6th July 2014, and thereafter until final judgment; and an order for general, aggravated and exemplary damages in the sum of N100 Million for breach of contract. In considering these claims, I need to clarify a thing or two.
36. The defendant at paragraph 4.9 of its final written address had submitted that its averments contained in paragraph 16 of the statement of defence were not materially challenged or contradicted by the claimant in his pleadings or at trial and the claimant even during cross-examination also admitted that he was aware of the defendant’s Human Capital Management Policy on Discipline (Exhibit D6). Accordingly, that the allegations are thus taken as admitted by the claimant presumably because the claimant did not file any reply to the statement of defence. The law is that a reply is used by a claimant to answer new issues raised in the statement of defence such as in case of confession and avoidance. It is, therefore, not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence because of the principle of joinder of issues. Where no counterclaim is filed, a reply is generally unnecessary if it is also to deny allegations in the statement of defence. After the completion of pleadings, issues are said to be joined and the case is ready for hearing. Such a joinder of an issue operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. See Igbozor v. Offiong & ors [2016] LPELR-40100(CA), citing and relying on Akeredolu & ors 14 v. Akinremi & ors [1989] 3 NWLR (Pt. 108) 164 at 172; [1989] 5 SCNJ 71. In the instant case, therefore, issues are deemed joined even through the claimant chose not to file any reply to the statement of defence.
37. Given relief (a) of the claimant, a key part of the claimant’s case is that he was not given fair hearing. The argument of the claimant here is that he was not given any fair hearing by the Personnel Management Committee (PMC) of the defendant before he was punished by means of suspension without pay. I must, however, point here that the fact that the claimant accepted the suspension without pay, served it out and now claims the rule against double jeopardy means that it is too late in the day for the claimant to raise issue of lack of fair hearing now. In any event, an employee who seeks to rely on lack of fair hearing must have raised it timeously especially during the process of the disciplinary hearing. There is no evidence before the Court that the claimant other than presently in court raised the issue of lack of fair hearing prior to his going on suspension without pay. See Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which was delivered on 7th April 2016. Fair hearing is thus essentially a pre-event, as opposed to post-event, issue. See Honourable Justice Bassey Tambu Ebuta v. National Judicial Council & 3 ors unreported Suit No. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017.
38. The claimant also argued that in the conduct of the defendant’s PMC, he wasn’t granted fair hearing as the allegations over which he was tried were criminal offences over which the PMC had no jurisdiction to determine, and for which he needs to be first tried by a court of law before any disciplinary action can be taken on him by the defendant. This stance of the claimant does not represent the current state of the law, something the defendant pointed out in its reply on points of law and which I agree with. In Honourable Justice Bassey Tambu Ebuta v. National Judicial Council & 3 ors unreported Suit No. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017, I noted that “since Mr Yesufu Amuda Garba & ors v. University of Maiduguri [1986] LPELR-1305(SC); [1986] 1 NWLR (Pt. 18) 550; [1986] All NLR 149; [1986] 2 SC 128, fair hearing in the world of work has been successfully watered down to just opportunity to be heard”. The Supreme Court in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 pointing to the new dispensation held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In fact, AG, Kwara State v. Ojulari [2007] 1 NWLR (Pt. 1016) 551 CA was quite explicit when it held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case. And by Jubril v. Mil. Admin., Kwara State [2007] 3 NWLR (Pt. 1021) 357 CA, where there has been admission on commission of misconduct or crime by an employee, the need for proof before a regular criminal court no longer arises. The long and short of it is that the claimant cannot now complain of fair in the manner that he did in this case. His arguments in that regard are accordingly rejected; and I so hold.
39. On its part, the defendant had in its written address admitted and so canvassed the position that it dismissed the claimant. Exhibit C6 dated 27th June 2014 is quite specific in stating thus: “In line with the policy, kindly be informed of the cessation of your employment with the Bank by Dismissal with immediate effect”, with the word “Dismissal” even emboldened. Exhibit C8, a letter dated 11th July 2014 from the defendant to the claimant’s counsel reiterates the fact that the claimant was dismissed by the defendant and that Exhibit C6 is the letter of dismissal. Exhibit C6 gave the reason for dismissing the claimant in the following words:
Kindly recall that the Bank recently conducted an investigation on your role in the case of diversion of funds in Ikeja 60, Opebi Road Branch. You were subsequently invited to meeting with Personnel Management Committee (PMC) to explain yourself.
Please be informed that the bank, after a thorough investigation and explanation of your explanation, has established that you willfully authorised the alteration and contravention of a drawer’s transfer instruction of N70,300,290.00 in severe violation of the bank’s operational policies and regulatory requirements. Your actions constitute a breach of trust and caused reputational damage to the bank.
Despite this, the defendant would proceed to argue that the claimant failed to establish by evidence that his termination/dismissal was contrary to his contract of employment. By this submission, the defendant assumes that the burden of proof is on the claimant to show that his dismissal was contrary to the contract of employment. It is this assumption that led the defendant to submit that it can terminate the claimant’s employment for reason or no reason at all. In fact, in the main, the defendant in its submissions (including the reply on points of law) kept talking of wrongful termination when in fact what is before the Court is first and foremost a case of dismissal, not termination. While an employer has the right of dismissal, the law is that once an employer gives a reason for terminating or dismissing an employee (in our dismissal cases, as the instant case is, even if no reason is given), the burden lies with him to justify the said reason or the dismissal itself, as the case may be. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 551 CA, Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC), George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (W.A.) Co. Ltd [1961] 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317. Thus in the instant case, the burden is on the defendant to justify the dismissal it meted out on the claimant. The explanation given by the defendant is that based on the investigation it conducted and the claimant’s admission of dereliction of duty at the hearing, the claimant was found to have breached its operational and regulatory policy on discipline and was dismissed from its employment in line with appropriate sanctions which is not limited to suspension.
40. In the main, I think the defendant grossly misunderstood the claimant’s case, which is that the suspension meted out on him by the defendant was punishment for his infractions for which the dismissal was a double punishment. In other words, the defendant cannot punish him twice for the same offence. But in making out his case, the claimant made a questionable submission. To the claimant, by law as by the terms of the clause II(1) and (2) of Exhibit D6, suspension without pay is issued at the end of an investigation/hearing as a punishment and is thus distinct from suspension with pay, such as to allow for investigation. The claimant did not support this assertion with any authority. While it is true that suspension can be to enable an employer to investigate the infraction of an employee, it may as well be the punishment for an infraction. See Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. Whether suspension is punishment or to enable an investigation to be conducted would depend on the terms of the suspension itself. Here, the distinction the claimant intuits as between suspension with pay and suspension without pay is not necessarily correct. The claimant intuits that suspension with pay is one done to allow for investigation, while suspension without pay is the one done as punishment. This intuition by the claimant is not necessarily true as nothing in principle says that suspension with pay may not well be the punishment, not necessarily one to allow for investigation; while on the other hand, suspension without pay (if permitted by the contract of employment) may well be to allow for investigation, not necessarily as punishment. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1.
41. The employer no doubt has the right to suspend an employee when necessary, with or without pay or at half pay. However, Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653), cases that have been applied by this Court in numerous cases such as those listed below, held that employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it up upon itself (outside of the Court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. See Ms. Claudia Ojinmah v. Coxdyn Nigeria Ltd unreported Suit No. NICN/LA/111/2012 the judgment of which was delivered on March 27, 2014, Mr. Osamota Macaulay Adekunle v. United Bank for Africa Plc unreported Suit No. NICN/IB/20/2012 the judgment of which was delivered on 21st May 2014, Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013 the judgment of which was delivered on 1st July 2015, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, Mr. Anthony O. Obasa & ors v. DAAR Communications Plc [Publishing & Printing Division] & 2 ors unreported Suit No. NICN/LA/360/2012 the judgment of which was delivered on March 9, 2016, Adebayo Boye v. FBN Mortgages Limited unreported Suit No. NICN/LA/496/2012, the judgment of which was delivered on 7th April 2016 and Tunde Ajani v. Zone 4 Energy Limited & 2 ors unreported Suit No. NICN/LA/216/2016, the judgment of which was delivered on 24th May 2017.
42. The case of the claimant is that the suspension meted out to him as at 6th November 2013 was one that punished him, not one meant to investigate him for any infraction. It is in this sense that the claimant complains that his constitutional right against double jeopardy was infringed by the defendant. The claimant would even argue that the legal implication of the further suspension issued on 17th December 2013 is certainly that the claimant continued to be an employee of the defendant, since for the claimant to be validly suspended by the defendant a second time, he first had to be an employee of the defendant as the defendant has no authority of suspension over non-employees. The claimant referred to Exhibit C11 dated 6th November 2013 (the letter of suspension, which DW acknowledged came from the defendant) in support of his submission. Exhibit C11 provides as follows:
Recall your recent appearance before the Personnel Management Committee, wherein your explanation was heard on your involvement in the above mentioned case.
Having reviewed the circumstances surrounding the above mentioned case, we are of the opinion that you initiated and directed that alterations be made and destination account modified on a customer’s funds transfer instruction, thereby contravening the drawer’s mandate and exposing the bank to a contingent liability of N70 million.
You are hereby advised to proceed on a One (1) Month Suspension (Without Pay) immediately. Kindly hand over your pending work to your supervisor before leaving.
You are also required to leave your current contact address/ID Card with you supervisor before proceeding as your attention may be required.
You are advised not to allow a repeat of this behavior as the bank will not hesitate to apply a stiffer sanction.
The claimant latched onto the last sentence (“You are advised not to allow a repeat of this behavior as the bank will not hesitate to apply a stiffer sanction”) as proof that his suspension of 6th November 2013 is one that is punishment; as such any other suspension on the matter and the ultimate dismissal he received all amount to double jeopardy i.e. being punished again for something he had already been punished for.
43. The defendant on its part argued that the suspension of 6th November 2013 is not punishment but merely to allow further investigation of the case against the claimant. Accordingly, to understand the full import of things, Exhibit C11 must be read alongside other exhibits in this matter. Exhibit D6, an extracted copy of the defendant’s Human Management Policy on Discipline, in clause II makes two key provisions on suspension: one relating to “Suspension from Work”; and the second on “Indefinite suspension pending investigation”. I note that DW acknowledged that by Exhibit D6, there are only two instances where an employee can be suspended, which are suspension pending investigation; and suspension as punishment. The provisions in Exhibit D6 as to suspension from work permits the defendant to suspend for a period not exceeding one month without pay; and at the end of the one month period without pay to either reinstate the employee or dismiss/terminate the employment of the employee. The provision on indefinite suspension pending investigation is quite explicit that the suspension is to enable further investigation of the employee alleged to have committed an infraction such as theft, fraud, etc. The provision on indefinite suspension pending investigation is silent as to whether such a suspension will be with or without pay. The fact that Exhibit D6 makes a distinction between these two types of suspension i.e. indefinite suspension, which suspension is silent as to whether it is with pay or not, and suspension from work which cannot exceed one month but for which pay cannot be made, means that the one (suspension from work) is punishment and the other (indefinite suspension pending investigation) is not punishment but one pending investigation, as it is so labelled. Exhibit C11 did not state that the claimant was suspended pending investigation. It did not state that the suspension was indefinite either. It suspended the claimant for one month without pay thus falling squarely within the provision of Exhibit D6 dealing with suspension from work. Exhibit C11 even advised the claimant not to allow a repeat of this behavior as the defendant will not hesitate to apply a stiffer sanction (punishment). Only a person who is already under punishment can be threatened with stiffer sanction (punishment). This being the case, it is my finding and holding that the suspension of 6th November 2013 vide Exhibit C11 was punishment on the claimant for the allegation of diversion of funds with complicity of the Business manager, Ikeja, 60 Opebi Road Branch. And here, as an additional reason, I agree with the claimant that in virtue of paragraph 1 of the statement of defence, where the defendant admitted paragraph 12 of the statement of facts (whether amended or the original), the defendant must be read to have expressly and specifically admitted the fact that the punishment as per Exhibit C11 was a final punishment.
44. Having found that Exhibit C11 punished the claimant for the alleged infraction, it is not open to the defendant to punish the claimant again either through a subsequent suspension or dismissal meted out later. In this sense, I agree with the submission of the claimant that what the defendant did to him by suspending him and later dismissing him amounts to double jeopardy. On double jeopardy especially as it relates to civil actions, see Bernard Okeobor v. Police Council & 2 ors [2003] 12 NWLR (Pt. 834) 444 at 481 and Mr. Sylvanus Effiong Edet v. The Inspector General of Police & anor unreported Suit No. NIC/LA/67/2011, the judgment of which was delivered on 23rd September 2014. The argument of the defendant that there are additional conditions to the punishment i.e. “to pursue a satisfactory refund of the amount in dispute by the beneficiary or a confirmation letter from Sarner PFM that the transfer has been regularised” (given Exhibits C12 and C13) is accordingly a non-issue. The law is that an employer has the discretion to give a lesser punishment to an employee but he has no discretion to give a higher punishment than that prescribed. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC. By New Nig, Bank Ltd v. Obevudiri [1986] 3 NWLR (Pt. 29) 387 CA, the effective date of the dismissal of an employee must be reckoned as the date when the letter of dismissal was written; he is, therefore, entitled to all his accrued rights up to that date. A summary dismissal cannot, therefore, be made retrospective. All of this mess that the new dispensation is that whether termination or dismissal is wrong or not, all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. See Udegbunam v. FCDA (supra), Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & anor unreported Suit No. NICN/LA/40/2012 the judgment of which was delivered on 7th April 2016 and Adebayo Boye v. FBN Mortgages Limited unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7th April 2016.
45. What all of this means is that the claimant remained an employee of the defendant. Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 held that a suspended employee remained an employee of the employer for as long as the suspension lasted. As such, other than the period in which the claimant was suspended without pay in accordance with Exhibit D6 (the period of 6th November 2013 to 5th December 2013), the claimant is entitled to be paid his salaries for the period 6th December 2013 to date of judgment as claimed in relief (d), Exhibit C6 having merely evinced an intention by the defendant to severe the employment relationship with the claimant. Relief (d) is a claim for special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) is not necessarily proved by an admission given that it is never inferred from the nature of the act complained of, it is exceptional and so must be claimed specially and proved strictly. At paragraph 4 of the amended statement of facts (as in paragraph 4 of the witness statement of facts), the claimant put his annual remuneration/compensation effective 1st January 2014 to be N10,774,466.05 i.e. at N897,873.00 per month. Actually if N10,774,466.05 is divided by 12 months, what we have is N897,872.2 per month, not N897,873.00 that the claimant gave in relief (d). The argument of the claimant that because the defendant in paragraph 1 of its statement of defence admitted paragraph 4 of the claimant’s amended statement of facts, the fact of his annual salary being N10,774,466.05 must be taken as proved cannot stand given the authority of NNPC v. Clifco Nigeria Ltd. The claimant must accordingly strictly prove this fact.
46. The claimant in paragraph 4 of both his amended statement of facts and witness deposition stated that it was upon his promotion sometime in 2013 to Assistant Manager that his annual salary came to N10,774,466.05. The claimant did not, however, tender before the Court his said 2013 letter of promotion, nor did he tender any document showing that his annual salary is N10,774,466.05. The closest there is to his recent compensation package is Exhibit C9 dated 6th June 2012, which indicated that his compensation has been reviewed upward with effect from 1st April 2012. Exhibit C9 breaks down the claimant’s compensation package into two categories: the normal consisting of basic salary up to 13th Month salary; and the reimbursable expenses, which strictly cannot rank as remuneration since it ranks as an expense that is reimbursable if incurred. By Exhibit C9, the annual salary of the claimant based on the addition of basic salary, rent, transport, economic subsidy, meal subsidy, furniture allowance, entertainment allowance, utility, leave allowance and 13th Month comes to N5,021,188.09, which if divided by 12 months gives us a monthly salary of N418,432.34. This is the sum the claimant can use in claiming relief (d); and I so find and hold.
47. I held that the claimant is entitled to be paid his salaries for period 6th December 2013 to date of judgment as claimed in relief (d). For the month of December 2013, the claimant is entitled to N350,943.25 i.e. at N13,497.82 per day multiplied by 26 days of the said month. For the period January 2014 to June 2018 (54 months), the claimant is entitled to N418,432.34 times 56 months, which is N23,432,211.04. And for the 16 days of July 2018, it is N215,965.12 i.e. at N13,497.82 per day. All of these sums if added up come to N23,999,119.41. This is the sum the claimant is entitled to as per relief (d); and I so find and hold.
48. I indicated that Exhibit C6 merely evinced an intention by the defendant to severe the employment relationship with the claimant. This being so, relief (c) wherein the claimant prayed for reinstatement cannot be granted. It fails and so is dismissed.
49. In like manner, the claim for general, aggravated and exemplary damages as per relief (e) cannot be granted for that will amount to double compensation. See CCB (Nig.) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114 CA, Kabelmetal Nig. Ltd v. Ative [2002] 10 NWLR (Pt. 775) 250 CA and Onalaja v. African Petroleum Ltd [1991] 7 NWLR (Pt. 206) 691 CA. Relief (e) accordingly fails and is hereby dismissed.
50. In all, the claimant’s case succeeds in part, and only in terms of the following declaration and order:
(1) It is declared that the letter of dismissal issued by the defendant and dated the 27th of June 2014 is in violation of the claimant’s right against double jeopardy, and is accordingly, invalid, unconstitutional, null and void.
(2) It is ordered that the defendant shall pay to the claimant the sum of N23,999,119.41 being outstanding salaries due to the claimant from 6th December 2013 to date of this judgment.
(3) The sum ordered as per order (2) shall be paid within 30 days of this judgment, failing which it shall attract interest at the rate of 10% per annum.
51. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
