MR. LUKE INABOYA -VS- DIAMOND BANK PLC

IN THE NATIONALINDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFOE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 26^TH JUNE 2018

SUIT NO. NICN/ABJ/217/2016

BETWEEN

LUKE INABOYA……………………………………… CLAIMANT

AND

DIAMOND BANK PLC ……………………………………… DEFENDANT

REPRESENTATION

Alex Abbot ZirraTeru Esq for the Claimant

Akweze Joseph Esq for the Defendant

JUDGMENT

The Claimant, by a General Form of Complaint filed on 14^th June, 2016 with the accompanying frontloaded documents, approached the Court for the following reliefs:

A DECLARATION that the letter of the Defendant to the Claimant (Cessation of Employment) dated the 17^th day of October, 2011 terminating the Employment of the Claimant by dismissal is null, void, wrongful and of no effect.

AN ORDER of this Honourable Court awarding the sum of N29,500,000.00 (Twenty Nine Million, five Hundred thousand Naira) only, as Specific Damage to the Claimant, being 5 (years) salary due to the Claimant from the Defendant from July 2011 to the commencement of this suit.

AN ORDER awarding the sum of N10,000,000.00 (Ten Million Naira) only to the Claimant from the Defendant as General Damage.

10% pre-judgment and post-judgment sum until judgment sum is liquidated.

Cost of this Action

Claimant’s Case
The Claimant was employed on the 24th day of February, 2004 as an Executive Trainee in the Defendant’s Company and rose to the rank of a Cluster Control Officer. On the 10th day of July, 2011 the Defendant through its Head of Systems Audit and the Claimants other senior colleagues in the Defendant’s company claimed that a fraud had taken place in a customer’s account in the sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira) only, in Abuja, and it was noticed that the Claimant viewed the account from Enugu before and after the withdrawal in Abuja. The Claimant admitted that viewing the bank’s customer account was part of his job specification but stated emphatically that he did not view the account now in question and further stated that he is not in charge or cannot confirm, process or authorize payment, which is the policy of the Defendant before withdrawal. That the matter was taken to the Economic and Financial Crimes Commission (EFCC) for investigation by the Defendant, that the EFCC found no merit in the Complaint, hence could not prosecute the Claimant on the allegation.

On the 17th day of October, 2011, the Defendant terminated the Claimant’s employment. Aggrieved with the decision of the Defendant, the Claimant instituted this action, protesting vehemently that his employment was wrongfully terminated.

The Defendants filed their STATEMENT OF DEFENCE on 7^th September, 2016.

The Defendant maintained that the requirement of integrity was not placed on just the Claimant or on the Internal Audit Group but on all employees and officers of the Defendant and that the promotions the Claimant received were in the normal course of the Claimant’s employment and have no bearing on the determination of the employment.

To the Defendant, their actions were justified from, facts available to the Defendant from its own investigation and from the Claimant’s own disclosure, the Claimant, grossly misconducted himself, acted most treacherously and injuriously to the Defendant and to the Defendant’s customer. The Defendant maintained that the facts indicated a fraud, made possible by the Claimant, which the Defendant had a duty to report and not to conceal and that the EFCC was a proper body to receive the report. To the Defendant the EFCC is a public body with custody of the said report and that they, the Defendants, are not under any burden to produce.

To the Defendants, given the heinous facts and the Claimant’s own admission and the liability he caused the Defendant to indemnify and pay the customer, Nwakanrna Arnego, the sum of N2,500,000 fraudulently withdrawn by the Claimant’s confederates from the customer’s account, their action was precautionary, proper, and in exercise of a lien as the Claimant became indebted to the Defendant in that sum.

COUNTERCLAIM

i, Reimbursement of the sum of N2,500,000 fraudulently withdrawn from the account of the Defendant’s customer which fraud the Claimant made possible by breach of his duties of loyalty to the Defendant and the customer and of secrecy as agent of the Defendant to the customer and which sum the Defendant was bound to credit to the customer.

Payment of the sum of N500,000 being the legal fee payable by the Defendant to its counsel to appear to this suit when the suit in all the circumstances and facts available to the Claimant was unwarranted and unmeritorious.

iii. Payment of Debt in the total sum of N1,703,752:79 incurred by the Claimant and payable to the Defendant during the course of his employment.

The Defendant in his Counterclaim incorporate that

The Claimant who was the Defendant’s employee at all material times made the fraudulent withdrawal of N2,500,000 from the account of the Defendant’s customer, possible, the Defendant became liable to reverse the debit of the said sum from the account of Nwakanrna Arnego by crediting it in that sum.

The Defendant claims indemnity in the circumstances of the Claimant’s duty to the Defendant and of his role in making the disclosure occasioning the loss to the tune of the said sum of N2,500,000.

The Defendant avers that it was bound to credit as it did Nwakanma Amego’s account in the said sum which the Claimant wrongfully caused the Defendant to pay by his acts and which the Claimant is liable to reimburse the Defendant.

The Defendant avers that present suit is one which the Claimant ought not to have brought given his own knowledge that he had acted reprobately and on the facts of his own letter of July 2011 groundless.

By reason of the suit the Defendant as a limited liability company bound to appear in Court by Counsel was put to the cost of retaining the services of lawyers in the sum of N500,000 for the purpose of this suit and at the instance of which lawyer’s appearance is made for the Defendant. The Defendant pleads its agreement on fees with Mrs. Ezinwa Okoroafor principal partner of Actra Chambers in respect of the suit.

DEFENCE TO COUNTERCLAIM filed on 13^th October, 2016.

The Claimant/ Defendant to the Counterclaim it is within the scope of the Claimant’s duty to view all accounts but maintain that he did not to authorize any payment of monies from any account.

The Claimant/ Defendant to the Counterclaim denies Paragraphs 15 and 16 of the Counterclaim and stated that the Defendant to the Counterclaims reliefs are genuine as he has never indulged in any fraudulent act, nor has he ever been warned for indulging in any fraudulent act and or indicted for same on or during his employment with the Counter-claimant.
The Defendant to the Counterclaim denied Paragraphs 18, 19, 20 and 21 of the Counterclaim in that the Defendant to the Counterclaim has never made possible a fraudulent withdrawal of the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) only or any sum from the account of the Counter Claimant.

The Defendant to the Counterclaim in response to Paragraphs 23 and 24 of the Counterclaim stated that the summary cessation of his employment with the Counterclaimant by the Counterclaimant was not in accordance with the terms of employment of the Counterclaimant.

Furthermore, that the indebtedness to the Counterclaimant was a normal and conventional loan proffered to the Defendant to the Counterclaim for the purpose of his employment. And that the payment as other payments proffered to the Defendant to the Counterclaim previously would have been paid within the time frame had the employment of Defendant to the Counterclaim not been wrongfully terminated.

CLAIMANT’S REPLY TO DEFENCE filed on 13^th October, 2016.

The Claimant averred in response to paragraphs 6, 7 and 10 of the Statement of Defence respectively, that it is within the scope of the Claimant’s duty to view all accounts but not to authorise any payment of monies from any count. That the Defendant sought for the intervention of the EFCC and having not been indicted for the alleged fraud is not in any respect entitled to continue to place the Claimant’s account both personal or whichever on notice.

The Claimant dening paragraphs 13 and 14 of the Statement of Facts stated that his duty is to view an account and that he has no authority and has never monitored the account or any account in the manner stated by the Defendant. And that he acted only on the scope of his duty, to view an account and never authorized any payment in respect of this matter or any at all.

The Claimant denied paragraphs 15 and 16 of the Defence stating that the Claimant’s reliefs are genuine as he has never been indulged in any fraudulent act, warned for indulging in any fraudulent act and or indicted for same on or after his employment with the Defendants.

The trial commenced on the 8^th March 2017, the Claimant testified on his own behalf as CW1, adopted his written statements on oath of 4^th June 2016 and 13^th October 2016 which were marked C1 and C5 respectively, the Claimant went on to tender three other exhibits by consent which were marked Exhibits, C2, C3 and C4. The Defendants tendered four other exhibits produced under subpoena which were marked C5-C9, through Eziamaka Alfred their DW who testified on their behalf as DW, adopted her Written Statement on Oath of 7^th September 2016, which was marked D1 and proceeded to tender two other exhibits which were marked D2 and D3. D2 was admitted under protest.

Both witnesses were duly cross-examined. As far as the witnesses go I found CW to be evasive and taciturn, he did not present as a person ready to state all he knows about this case, his answers where short and elusive, as if he were more interested in out foxing the questions than putting forward his case. He was a witness who made much economy of the facts, which was most unhelpful.
DW I found fared no better, he was hedgy and non cooperative refusing to answer questions comprehensively, which showed him up as self serving and over tutored. Both witnesses did little to advance the cause of justice in this case.
After the trial, parties filed their respective written addresses. The Defendant’s Final Written Address is dated 12^th March and filed on15th March 2018, while the Claimant’s is dated 13^th April and filed on 16^th April 2018.

The DEFENDANT’S FINAL WRITTEN ADDRESS was dated 12^th March 2018 and filed on 15^th March, 2018.

ISSUES

i). Is the determination of the employment of the Claimant by the Defendant justified based on the materials before this court?

ii). If it is, is the Defendant not entitled to have the specific reliefs of the Claimant dismissed and have judgment in respect of the Counterclaim?

ON ISSUE 1

Is the determination of the employment of the Claimant by the Defendant justified based on the materials before this court?

Learned Counsel submitted that Employment relationships can be brought to an end by the employer and except in the cases of statutory service, a court will not hold an employer bound to a servant. Layade v. Panalpina World Transport Nigeria Ltd (1996) 40/41 LRCN 1252 and Gabriel Ativie v. Kabelmetal Nigeria Ltd [2008] 5 SCNJ 214. He argued that all over the world, secrecy with regards to the account of customers is a fundamental duty of bankers. Tournier v. National Provincial and Union Bank of England [1924] 1 KB 416; [1923] All ER 550. That the only exceptions are i) where the law compels disclosure; ii) where there is a public duty to disclose; iii) where the interests of the bank require disclosure; and iv) where the disclosure is made by the consent of the customer.

Furthermore, that as stated before, the facts are not strange to the Claimant, as from his pleadings and paragraphs 13,14,15,16,17,18,19 and 20 of his depositions it is clear that:
a)He was to serve in Enugu in respect of activities in the 6 branches (not all branches) in Enugu Region (not Abuja). Please see also paragraph 10.
b)The account of Nwakanwa Amego which he kept viewing was in Abuja not in Enugu; and a fraud occurred on it.
c)In the depositions mentioned above, he never denied the allegations of viewing the account of Ms Amego, and never told the Defendants during investigation, or even this court at the trial that HE DID NOT VIEW THE ACCOUNT. At paragraph 20 he confirmed his act on oath thus: “viewing the account is in the ordinary cause of duty…. as a cluster control officer”, without saying what warranted it, whether he must view every account and, if not, why that of Ms Arnego and why he went outside his cluster at Enugu as paragraph 17 makes clear.

Therefore, that with this kind of admission it is not necessary for the Defendant to prove this fact as this is a formal admission by the pleadings and no proof of it is called for. That this stems from the fact that parties and the court are bound by the pleadings. Spasco Vehicle & Plant Hire Co Ltd. v. Airaine Nigeria Ltd (1995) 32 LRCN 479 at 491; Commissioner for Works, Benue State v. Devcom Development Consultants Ltd [1988] 3 NWLR (pt 83) 407; Overseas Construction Co. Nigeria Ltd v. Creek Enterprises Nigeria Limited [1985] 3 NWLR (pt 13) 40; Olufosoye v. Olorunfemi [1989] 1 NWLR (Pt 95) 26, Ehimare v. Ehomyon [1985] 1 NWLR (Pt 2)17, Abia State v. The Federation [2002] 3 SCNJ 158. In Economides V. Thomopolous [1956] 1 NSCC 9, 12. Defence Counsel contended that the Claimant seems to hold the view that unless EFCC prosecuted and convicted him the Defendant could not dispense with his offensive services, which is erroneous because i) the master/servant relationship is a civil relationship and also not statutory and ii) the present case is also civil not criminal. Yusufv. Union Bank (1996) 39 LRCN 1139.

The Defendant on its part made it clear that the Claimant was guilty of gross misconduct and acted treacherously and injuriously and that it is law that on grounds of misconduct, an employee can be dismissed; that it does not require a multitude of grounds: one good ground based on one act is sufficient. Side v. Nigerian Cotton Board [1985] All NLR 291. The grounds of misconduct are various. See Oladipo Maja v. L Stocco [1968] All NLR 142. Counsel to the Defendant argued that the letter dated 12/07/11 is an admission backed by his cross-examination in court; the Defendant is not required in a civil case to prove a confession. That the Claimant did not tender the contrary letter before EFCC neither did he subpoena the EFCC. Therefore, such evidence if produced would have been unfavourable to him. Section 167(d) of the Evidence Act 2011.

ON ISSUE 2

If it is, is the Defendant not entitled to have the specific reliefs of the Claimant dismissed and have judgment in respect of the Counterclaim?

The Defendant’s Counsel submitted that the court does not make a declaration not permitted by law or when it does not serve any useful purpose and that it certainly does not force an employee on an employer. Ativie v. Kabelmetal, supra.

As to the claim for specific damages, counsel argued that:
i)If the dismissal is valid the question of wages does not arise. Gabriel Ativie v Kabelmetal Nigeria Ltd, supra, per Akintan, JSC, p. 227. He can be “dismissed summarily without notice and without wages”: Yusuf v. Union Bank, supra, per Iguh, JSC, p. 1160 because dismissal and forfeiture of entitlement go together.
ii)The amounts are special damages and so have to be specifically proved. That the amount of N29,500 is lumped up and the specifics or items of it were never provided. Oshinjirin v. Elias [1970] 1 All NLR 153.

As to general damages, counsel submitted thus:
i)In an action in contract such as master/servant relationship, General Damages do not arise. Gabriel Ativie v Kabelmetal Nigeria Ltd, supra.
ii)General damages are double compensation in view of Special Damages and are never allowed. Agu v General Oil Ltd [2015] 4 SCNJ 113 and Tsokwa Motors Nigeria Ltd v. UBA [2008] 1SCNJ 323.

The CLAIMANT’S FINAL WRITTEN ADDRESS filed on 16^th April, 2018.

ISSUE

Whether the Claimant in this suit has discharged the onus on him by establishing that the Defendant breached the terms of contract of his employment, to entitle him to the reliefs sought?

Learned Counsel to the Defendant submitted that the burden is on the Claimant to prove that his, the Claimant’s, wrongful dismissal was as a result of the breach of the terms of employment by the Defendant and that until the Claimant discharges that burden, his case cannot succeed. per Mahmud Mohammed, JSC in IBAMA V. S.P.D.C.N. LTD (2012) 4NILR at Pp 29- 93 paras H- B; AMODU V. AMODE (1990) 5 NWLR (PT. 50) 356 @ 370, per AGBAJE, JSC. It is Counsel’s submission that where a party to a proceeding withholds particular evidence which should have been used to resolve a matter one way or the other, the presumption is that it will be unfavourable to that party. Section 167 (d) of the Evidence Act; Jalico Limited v. Owoniboys Technical Services Limited (1995) 4NWLR (Pt. 391) @ 534. Musa v. Yerima (1997) 7NWLR (Pt. 511) 27.

Counsel submitted that admission of a party against his interest or put differently, admission against the person himself by himself is the best evidence in favour of his adversary. Ejimade v. Delta Freeze Ltd (2007) 13 NWLR (Pt. 1050) p.96@ 10 para F.; Dangote v. CSC Plateau State (2001) 9 NWLR (Pt. 717) p.132. He submitted that the Defendant who sought to tender Exhibit D2 which is a computer generated evidence must call evidence, apart from tendering Exhibit D2 to establish the conditions in Section 84 (2)(a)- (d) of The Evidence Act, 2011; Kubor v. Dickson (2013) 4 NWLR (Pt 1345) 534.

In reaction to the 1st paragraph of the Defendant’s argument, Counsel submitted that the parties did not join issue on, the restatement as it is not even contained in any of the reliefs or Counterclaim. Karimo v. Grend (1992) 3 NWLR (Pt.230) 426 @ 640 Para A — B, per Omo, JSC.

Counsel pointed out that in the last paragraph of page 2 of the Plaintiff’s argument again, the argument canvassed clearly reveals that the facts of the case is misconceived as it is beyond contestation that the function of the Plaintiff as cluster control officers in Enugu state, does not restrict him from viewing an account in Abuja. Obasi Bros Co. Ltd. V. Mbas (2003) 9 N.W.L.R (pt 929) 117.

He submitted that the law is settled that a case is an authority for the facts therein. Tarzoor v. Loraer EPT/BEN/GOVE/01/2015 Judgment delivered on 21/1/15 page 45.

On the 14^th May 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgment.

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgment and specific mention would be made to them where the need arises. The issues for determination in this suit to my mind are a combination of the issue as formulated by the Claimant; – Whether the Claimant in this suit has discharged the onus on him by establishing that the Defendant breached the terms of contract of his employment, to entitle him to the reliefs sought?
And the defendants 2^nd issue If it is, is the Defendant not entitled to have the specific reliefs of the Claimant dismissed and have judgment in respect of the Counterclaim?,

Before I delve into the merit of this matter I wish to address a mis-contention of the parties to do with the effect of a “Notice to produce”. The Claimant had in their pleadings given the Defendants notice to produce the report of the EFCC on the Claimant’s involvement or lack of involvement in the loss of funds case that occurred in the Defendants office, the Claimant maintains that after being arrested by the EFCC he was told to leave as he was not implicated in the incident. The Defendants on their part contend that they are not under any obligation or burden to produce the report in court.
By Order 40 rules 28-30
Where a party to a suit desires any other party to the suit to produce in Court at the trial, a document or any other thing, which he believes to be in the possession or power of that other party, the party desirous of the production shall give “Notice to Produce”in Form 35 to that other party. The Notice shall be given and served not less than 5 days before the date slated for the trial.
A “Notice to Produce” may be included in the pleadings of the party seeking the production of the document or thing or be in a separate notice delivered to the other party or counsel of the other party.

A “Notice to Produce” shall specify sufficient particulars to identify to the other party the exact document or thing required.

Now the Supreme Court in the following cases had this to say;-CHUKWURA V. NDUKA & ANOR. [2008] LPELR – 3985 [CA] P. 29 – 30, PARAS. B – A: …The position of law is very well amplified in Buhari v. Obasanjo [2005] 13 NWLR [Pt. 941] 1 at 198 where the Supreme Court said as follows – “A party on whom Notice to produce is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act…

See also in KOSSEN [NIG.] LTD V. SAVANAH BANK [NIG.] LTD. [1995] LPELR – 1706 [SC] PP. 20 – 21, PARAS. F – B. And, in this court, in the unreported case of SUIT NO. NICN/AB/03/2012 GODWIN OKOSI OMOUDU Vs. PROFESSOR AIZE OBAYAN& 4 ORS delivered on 8^TH OCTOBER, 2014, the Honourable President of this court held that “notice to produce’ only entitled the party serving the notice to tender a secondary copy in his possession if the original is not produced “.

What all this means in context is that the Claimant having served the Defendants with a notice to produce the EFCC report are at liberty to tender a secondary copy of the said report. A notice to produce simply means that Defendants is to tender the report and if he fails to do so the Claimant shall tender whatever copy of the report they may have. The court in the circumstances is not able to draw any conclusion or inference for the failure of the Defendants to produce the report without more.

Now to the merit of the case, the Claimant seeks the following reliefs; –

DECLARATION that the letter of the Defendant to the Claimant (Cessation of Employment) dated the 17^th day of October, 2011 terminating the Employment of the Claimant by dismissal is null, void, wrongful and of no effect.

AN ORDER of this Honourable Court awarding the sum of N29,500,000.00 (Twenty Nine Million, five Hundred thousand Naira) only, as specific damage to the Claimant, being 5 (years) salary due to the Claimant from the Defendant from July 2011 to the commencement of this suit.

AN ORDER awarding the sum of N10,000,000.00 (Ten Million Naira) only to the Claimant from the Defendant as General Damages.

10% pre-judgment and post-judgment sum until judgment sum is liquidated.

Cost of this Action

In support of his claims, the Claimant pleaded Exhibit C2, his Offer letter of appointment. See the case of FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA The position of the law is that the nature of an employment can be determined by viewing the letter of appointment and the terms contained therein. The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment

(a) Purely Master and Servant relationship

(b) Servants who hold their office at the pleasure of the employer

In the instant case, in Exhibit C2 the Claimant was offered the post of an Executive Trainee C2 states in paragraph 3 that after confirmation his appointment would be terminable by either party giving one month notice. The Claimant described the Defendant as a Company carrying on a Banking business incorporated by CAMA a fact duly admitted by the Defendant, and governed by the Defendants Personnel Policies. He also tendered his letter of promotion Exhibit C3.
From the foregoing I find that the Claimant’s employment relationship is one of Employee/Employer commonly referred to a Master and Servant Relationship.
At this point it is pertinent to note that having found that the employment is one of Master and Servant the law is that in cases of this type i.e, … “In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them.

Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void”. See SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16.PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP.
What that means is that that part of Relief 1 praying for a declaration of null and void is untenable under a Master and servant contract, cannot be granted.

The Claimant’s grouse is with Exhibit C4 the letter titled CESSATION OF EMPLOYMENT Reproduced below for clarity.

DIAMOND BANK

HCM/AU/GN/17/10/2011

October 17, 2011

Luke Inaboya,

C/o Lucky Inaboya,

Bank of Agriculture Ltd,

Inspection Dept,

Abuja Zonal Office.

Central Area,

Abuja.

Dear Luke,

CESSATION OF EMPLOYMENT

Recall your recent appearance before the Staff Disciplinary Panel, wherein your explanation was heard on your involvement in the Alleged Fraudulent withdrawal from Account of Nwamaka Amego’s account.

Please be informed that the bank, after a thorough investigation and examination of your explanation, has established that your actions were in breach of the banks policy.

In line with the policy, kindly be informed of the cessation of your employment with the Bank by Dismissal with immediate effect.

We will advise you of your terminal indebtedness to the Bank subsequently.

Kindly, submit the entire Banks property in your possession including your staff identity card

Yours faithfully.

For DIAMONG BAMK PLC.

ALEX Ugwuezeonu Gabriel Nwokeafor

Team Lead, Employee Relations Head, PETAM & Staff Support,

The position of the law is that “in a contract of employment between a master and a servant without statutory flavour, once the master complies with the terms of the agreement, he may relieve the servant of his job with or without a reason. But where the master gives a reason, the burden rests on him to establish that reason. Such servant must be given fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria”. U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A.OLATUNBOSUN v. NISER COUNCIL (1988) 3 NLWR (PT. 80) 25 referred to.] (P. 21, PARAS. C-E). The law is settled that in a master/ servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. See the case of AZENABOR Vs. BAYERO UNIVERISTY, KANO (2009) 17 NWLR (PT. 1169) 96 CA.

In ODEH Vs. ASABA TEXTILE MILL PLC. (2004) ALL FWLR (PT. 242) 2163, it was held that “a master can terminate the employment of his servant/employee at anytime and for any reason or for no reason at all, provided the termination is in accordance with the terms of their contract. In the instant case, the retirement or termination being in compliance with terms of contract of employment of the Appellant cannot make a case for wrongful termination of his employment”. See also IBAMA Vs. SHELL PET. DEV. CO. (NIG.) LTD. (1998) 3 NWLR (PT. 542) 493; NITEL PLC. Vs. OCHOLI (2001) FWLR (PT. 74) 254.
It is also settled law by several authorities that master/employer reserves, the right to hire and fire a servant at any time. See the case of ALI Vs. NNA (2005) ALL FWLR (PT. 272) 265 @ 293 -94; UBA Vs. TOYINBO (2008) LPELR 5056 CA. The basic principle of master and servant relationship is that an employer can summarily dismiss the employment of his servant for gross misconduct. Where the dismissal is founded on allegation of gross misconduct, the appellant is not entitled to any notice or salary in lieu of notice. See ALHAJI EKUNOLA Vs. C.B.N. & ANOR. (2013) LPELR 2039 SC.

Now, having said that “in an action for wrongful dismissal from employment, the burden is always on the Claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer”. U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A., ANGEL SPINNING & DYEING LTD. v. AJAH (2003) 13 NWLR (PT. 685) (P. 21, PARA. C). In UNION BANK V. SALAUDEEN (2017) LPELR-43415(CA) it was held that “The burden is on the employee who alleges a breach of the terms of the Contract of his employment to prove same. This is in line with the general principle of law that, he who asserts must prove. The Respondent who asserts the breach of the terms of his employment with the Appellant, therefore, had the burden of proving that assertion by adducing cogent, convincing and credible evidence. To do that, the Respondent had the onus:

(a) To place before the Court the document containing the terms and conditions of service or the terms of the conditions of the contract of employment; and

(b) To adduce credible evidence showing the way or manner the said terms and/or conditions of service or contract of service was or were breached by the employer.

Undoubtedly, the conditions or terms of the contract of employment is the kernel and bedrock of the case. In most cases, just like in other declaratory actions, the foundation of the claims are declaratory in nature, so the employer who is the Defendant to the action, has no onus to prove anything. See KATTO V. C.B.N. (1999) 6 NWLR (PT.607) 390. Thus, in the case of IDONIBOYE V. N.N.P.C. (2003) 2 NWLR (PT.805) 589, Uwaifo, JSC said:

“A servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful.” Similarly, in the case of FIT CHARLES ORGAN & ORS V. NIGERIA LIQUIFIED NATURAL GAS LIMITED & ORS (supra); M. D. Muhammad, JSC said: “In the instant case, where the Appellants allege wrongful termination of their employment by the 1st Respondent, the onus is on them to prove not only the existence of a contract of employment between them and the 1st Respondent but the terms of the very contract their employer breached in bringing the contract to an end.”

It therefore remains settled that the onus is squarely on a Plaintiff, in an action for breach of contract of employment to prove the existence of the contract of employment, the terms and/or conditions thereof and how those terms and/or conditions were breached by the employer. See MOROHUNFOLA V. KWARA TECH. (1990) NWLR (PT.145) 506; AMODE V. AMODE (1990) 5 NWLR (PT.150) 356; KATTO V. C.B.N. (SUPRA); CADBURY NIG. PLC V. OLUBUNMI O. ONI (2012) LPELR – 19821 (CA); F.M.F. LTD V. EKPO (2004) 2 NWLR (PT.856) 100 AND ANGEL SPINNING & DYEING LTD V. AJAH (2000) 13 NWLR (PT.685) 523.” Per TSAMMANI, J.C.A. (PP. 18-20, PARAS. D-E)

In the instant case the Claimant has placed before the court nothing to indicate the provision guiding the Defendant with regard to dismissal of its employees. The onus lies on him to present the court with the agreement or policy governing dismissal in the Defendant’s employ if any (or show the court the lack thereof) and then show the court how the said term was breached to sustain a finding that the dismissal was wrongful. This I find, the Claimant has not done. The Defendant did in fact tender a compact disc of the Defendant’s Personnel manual but the law does not allow a documents to be dumped on the court by a party. In this Court it was held in the unreported case of SUIT NO. NICN/LA/287/2014 MR CHARLES UGHELE VS. ACCESS BANK PLC delivered on the 10^th February 2017 law is that there has to be the necessary nexus between documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same. See ACN V. NYAKO [2013] ALL FWLR (PT. 686) 424 SC, BUHARI V. INEC [2008] 12 SC 1 AND HON. SEGUN ADELE & ANOR V. HON. SOLOMON OLAMILEKAN ADEOLA & ORS [2015] LPELR-25972(CA). This requirement of nexus is extended under the law to mean that a party who produces an exhibit so that the Court could utilise it in the process of adjudication must not dump it on the Court, but must tie it to the relevant aspects of his case. See IVIENAGBOR V. BAZUAYE [1999] 9 NWLR (PT. 620) 552; [1999] 6 SCNJ 235 AT 243, OWE V. OSHINBANJO [1965] 1 ALL NLR 72 AT 15, BORNU HOLDING CO. LTD V. ALHAJI HASSAN BOGOCO [1971] 1 ALL NLR 324 AT 333, ALHAJI ONIBUDO & ORS V. ALHAJI AKIBU & ORS [1982] 7 SC 60 AT 62, NWAGA V. REGISTERED TRUSTEES RECREATION CLUB [2004] FWLR (PT. 190) 1360 AT 1380 – 1381, JALINGO V. NYANE [1992] 3 NWLR (PT. 231) 538, UGOCHUKWU V. CO-OPERATIVE BANK [1996] 7 SCNJ 22, OBASI BROTHERS LTD V. MBA SECURITIES LTD [2005] 2 SC (PT. 1) 51 AT 68, EZE V. OKOLAGU [2010] 3 NWLR (PT. 1180) 183 AT 211, ANPP V. INEC [2010] 13 NWLR (PT. 1212) 547, UCHA V. ELECHI [2012] 13 NWLR (PT. 1316) 330 AT 360, BELGORE V. AHMED [2013] 8 NWLR (PT. 1355) 60 AT 99 – 100, OMISORE V. AREGBESOLA [2015] 15 NWLR (PT. 1482) 202 AT 323 AND 324, MR. MOHAMMED DUNGUS & ORS V. ENL CONSORTIUM LTD [2015] 60 NLLR (PT. 208) 39 AND ADEMOLA BOLARINDE V. APM TERMINALS APAPA LIMITED UNREPORTED SUIT NO. NICN/LA/268/2012 the judgment of which was delivered on 25th February 2016.

In this particular instant the Defendant tendered the document Exhibit C9 but the Claimant would be required, if he wanted to rely on it, direct the court’s attention to the provisions supporting his position. As court are not permitted to embark on a voyage of discovery. See the case of FCDA STAFF MULTI-PURPOSE (COOP) SOCIETY & ORS v. SAMCHI & ANOR LPELR 2018 CA where the Court of Appeal held that a judge is not supposed to base his findings on speculation, he simply cannot act outside the evidence adduced before him or make a case for any parties before him when the parties themselves fail to make the case for themselves; see AUDU v. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456 and ALSO ABUBAKAR V. YAR’ADUA (2009) ALL FWLR (PT. 457) 1, where the Supreme Court held: -“A Court of law can only pronounce judgment in the light of evidence presented and proved before it. A Court of law cannot go outside the evidence presented and proved before it by embarking on a voyage of discovery in search of other evidence in favour of the parties…”

I find that the Claimant has not substantiated his claim that his dismissal was wrongful in fact in law as stated in the case of OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 The Law Lords held that “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court’s satisfaction:

(a) That the allegation was disclosed to the employee;

(b) That he was given a fair hearing;

(c) That the employer believed that the employee committed the offence after hearing witnesses. BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290 (P. 145, PARAS. A-B)

It is not the Claimant case that he was not accorded fair hearing, or that the allegation against him was not disclosed to him in fact quite copiously the Claimant pleaded that he was informed in Lagos by the Group Head, Head of System Audit and another senior colleague of the fraud and that his explanation was needed. The Claimant had objected to the tendering of Exhibit D2 and D3, in respect of D2, a handwritten document, admittedly written by the Claimant, the Claimant counsel had argued that firstly, the document was a photocopy for which proper foundation had not been laid, Secondly the document was computer generated and the Defendants had not complied with section 84 of the Evidence Act before seeking to tender it. (In the circumstances of this case conditions a) and b) the court is Defendants have given satisfaction to this court with regard to these two conditions)

Now looking at Exhibit D2 I find it is indeed a photocopy, in open court DW had testified that the original was in the Banks Headquarters. This I find is sufficient explanation. The Claimant also raised the question of the document being computer generated because of the words www.diamindbank.com found on the top of the page, I find that the Claimant has not put forward any evidence or compelling argument that this document was computer generated, the web address of the Defendant by ordinary perusal was merely typed on, even the postscript on the bottom of the page gives no clear indication that the document was not merely photocopied on to a branded sheet in a file. The court is unable to make the connection in this regard and the argument that Exhibit D2 is computer generated and requires certification under Section 84 of the Evidence Act I find unsustainable. Furthermore the Claimant under cross examination admitted making the statement and went on to state that he made the “confessional statement” admitting involvement in the fraud.

The relevant portion of the Claimants testimony under cross examination on the 4^th April 2017 is hereunder reproduced,

AJALA: Read para 3 of D2

{Read out in open court}

AJALA: Can you recall writing that letter

CW: Yes I can so recall

AJALA: Did you sign it personally

CW: I should have signed it

AJALA: Do you know you were creating a record

CW: I do not understand, Yes, I wrote it for a reason, as stated. I thought I was saving my job

AJALA: Did you imagine the implication

CW: I wrote to save my job.

I find there is no compelling reason put forward by the Claimant for which the court would reject Exhibit D2, the fact that the Claimant wrote it to secure his job is not a ground to negate the document without more, I find. In the circumstances I find that Exhibit D2 was properly admitted.

Exhibit D3 is an email from the Defendants to their Counsel. The Claimant has argued a lack of compliance with Section 84. In addition to this document being computer generated I also find that the document was not signed so as it is this court can accord any weight to Exhibit D3. The law is that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful; “An unsigned document is worthless and void”. As per BODE RHODES-VIVOUR, J.C.A (as he then was) A.G. ABIA STATE V AGHARANYA (1999) 6 N.W.L.R. PT. 607 P. 362. (P. 14-15, PARAS. E-A) And in the words of Bolaji Yusuf JCA in UZOKWELU v. PDP & ORS LPELR 2018 CA “The law is settled that an unsigned document is a worthless paper. It is inadmissible and where admitted, it cannot be relied upon by the Court to resolve any controversy between the parties as no weight or probative value can be attached to an unsigned document.” See also UDO & ORS. V. ESSIEN & ORS. [2014] LPELR – 22684 [CA] P. 23, PARAS. B – C. In the circumstance even if the document Exhibit D3 were properly certificated under section 84 of the Evidence Act the certification would not cure this defect I find and hold. Condition c) has also been met. What all this means is that the Defendants were justified in law in their actions of dismissing the Claimant, considering the nature or type of employment relationship between the parties, and that the Claimant has failed to prove wrongful dismissal or that Exhibit C4 is of no effect.

Relief 2, 3, and 4 are for incidental damages and cost. As the Claimant has been unable to prove wrongful dismissal, these incidental Claims/Reliefs also fail.

The Defendant Counter-claimed as follows; –

Payment of the sum of N500,000 being the legal fee payable by the Defendant to its counsel to appear to this suit when the suit in all the circumstances and facts available to the Claimant was unwarranted and unmeritorious.

iii. Payment of Debt in the total sum of N1,703,752:79 incurred by the Claimant and payable to the Defendant during the course of his employment.

With regards to the Counterclaimant s relief 1, for reimbursement of money fraudulently withdrawn from a customer’s account ostensibly made possible by the act of the Claimant.
Now the Claimant had pleaded that the Defendants had frozen his account the Defendants have not shown the court the Law or policy that empowers them (the Defendants) to freeze or make withdrawal from a staff account without an appropriate order of court. The Claimant did not seek any relief for this act and the court not being father Christmas cannot grant any, having said that the Defendant has not advanced any argument or evidence to substantiate or justify their claim of N2,500,00.00 from the Claimant , had the funds been traced to his account, or are the Defendants merely seeking a pound of flesh. I find that the Defendant have not provided any evidence or law to back their entitlement to recover this money form the Claimant. This relief therefore fails and is dismissed.
Relief 2 is for legal fees incurred by the Defendant, now having found Exhibit D2 worthless and void I will briefly, state notwithstanding the technical argument, this relief cannot be granted. The position of the law is as follows; – “When GUINNESS NIGERIA PLC V. EMMANUEL NWOKE [2000] LPELR-6845(CA) held that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party, it simply was frowning on something like this. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). in fact in law, mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)”. The bill of charges attached to Annexure 6 attempts to meet these requirements but like I pointed out earlier it falls short of indicating the amount of fees against each of the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for legal fees appears speculative”. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. Relief 2) accordingly fails and so is dismissed.

Relief 3 is of the sum of N1, 703, 725.79 incurred by the Claimant payable to the Defendant in the course of his employment. The Defendants have not advanced an evidence in support of these claim, the contention of the Claimant that these sums would have been paid but for his dismissal, would found a case for pre earned allowance which are not redeemable or recoverable when the court makes a finding that the dismissal is wrongful, but that is not the case here. I am aware that Material facts but not the evidence relied upon in proof of the Counter–claim must be pleaded. See BENIN RUBBER PRODUCERS LTD. V. OJO (1997) 9 NWLR (PT.521) 388. “It is trite law, that for all intents and purposes, a Counter–claim is a separate, independent and distinct action and the Counter-Claimant, like all other Plaintiffs in an action, must prove his claim against the person Counter-claimed against before obtaining judgment on the Counter–claim. See JERIC (NIGERIA) LTD. V. UBN PLC (2000) LPELR-1607 (SC).
The Apex Court in ATIBA IYALAMU SAVINGS & LOANS LTD V. SUBERU & ANOR LRELR LPELR 2018 SC held that “…a Counter claim, though filed within an existing suit, is an independent action. The Counter Claimant becomes the plaintiff while the original plaintiff becomes the Defendant. The Counter Claimant has the onus of establishing his case just as he would if he were the original plaintiff. A Counterclaim is subject to the same rules of pleading and standard of proof as the main action. See: OGBONNA VS. A.G IMO STATE & ORS (1992) LPELR-2287 (SC) @ 33 B – G; GOWON VS. IKEOKONGWU (2003) FWLR (PT. 147) 1027; JERIC (NIG) LTD VS. UNION BANK (2000) 15 NWLR (PT. 691) 147; MAOBISON INTERLINK ASSOC. LTD VS. U.T.C (NIG) PLC (2013) 9 NWLR (PT. 1359) 197; (2013) LPELR-20335 (SC) @ 12 B – D.” (P. 34, PARAS. B-F) Per Kekere-Ekun, J.S.C.