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National Industrial Court

Mr. Okechukwu L. Nmeregini -VS- Keystone Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 17th October 2018                                        SUIT NO. NICN/EN/06/2015

 

BETWEEN

 

  1. OKECHIKWU NMEREGINI          …                CLAIMANT

 

AND

 

KEYSTONE BANK PLC                                          …                DEFENDANT

         

REPRESENTATION:

 

Hypolite Bismark Ogboko Esq. with Ihezue Anusien Esq., Obiageli Lilian Madueke Esq. and Okechukwu David Ngwu Esq. for the Claimant

Nnamdi Innocent Eze Esq. with Kelechi Ezediegwu Esq. and Claire Chizutem Orji Esq. for the Defendant.

JUDGMENT

 

  1. The Claimant by a Complaint dated 25th January 2015 and filed on 12th February 2015 claimed against the Defendant as follows:

  1. A declaration that the termination of the appointment and/or the purported dismissal of the Claimant by letter dated 22nd July 2010 contrary to the provisions of Human Capital Management Policies Manual 2006 is unlawful, null and void and of no legal effect whatsoever.

  1. Re-instatement of the Claimant and payment to him of all his entitlements as an employee of the Defendant.

  1. Injunction restraining the Defendant, its servants, agents, and privies from denying the Claimant his rights, privileges and interests as an employee of the Defendant.

Or in the alternative;

  1. The sum of N50, 000,000 [fifty million naira] aggravated damages for unlawful termination of the Claimant’s appointment by the Defendant.

  1. The Claimant filed with the Complaint a statement of claim, his statement on oath, list of witness, list of documents and copies of the documents. The originating processes were served on the Defendant on 12th March 2015. The Defendant, through its Counsel, entered an appearance and filed its defence processes on 31st March 2015. The Claimant filed a reply to the statement of defence and additional statement on oath. The Defendant filed a rejoinder to the reply to the statement of defence and additional written deposition of Mr. Darlington Mbah. With leave of Court granted on 22nd May 2017, the Claimant regularized his amended reply to the statement of defence dated 2nd April 2017 and filed additional statement on oath. Trial commenced on 14th May 2018 and was concluded on 28th May 2018. The Claimant adopted his statement on oath dated 12th February 2015 and additional statement on oath dated 4th April 2017 as his evidence in the suit and tendered 10 exhibits, exhibits A to K and was cross-examined. The Defendant’s witness, Mr. Darlington Mbah, also adopted his statements on oath dated 31st March 2015 and 22nd February 2016 as his evidence in defence of the suit and tendered 4 exhibits: exhibits DW1A to DW1D. and was cross-examined. The case was thereafter adjourned for adoption of final written addresses. On 4th October 2018, learned Counsel for the Defendant, Mr. Eze, adopted the Defendant’s final written address dated 27th June 2018 and filed on 29th June 2018 as his arguments in support of the defence. Learned Counsel to the Claimant, Mr. Ogboko, also adopted the Claimant’s final written address dated 2nd October 2018 and filed on 4th October 2018 as his argument in support of the claim. The matter was consequently set down for judgment.

COURT’S DECISION

  1. I have considered the processes filed in this suit and submissions of learned Counsel for the parties. The facts of this case are simple. The Claimant was employed on 1st November 2001 as Senior Executive Assistant, exhibit A, by Platinum Bank Limited which subsequently became Platinum Habib Bank Plc and later Keystone Bank Limited upon the takeover of the Bank by Central Bank of Nigeria in 2011. His appointment was confirmed on 2nd May 2002. He was promoted to Assistant Associate on 1st February 2006, exhibit C and subsequently to Deputy Associate on 1st December 2008, exhibit D. He rose to become the Service Leader of the Defendant’s 23 Okpara Avenue, Enugu branch. On 3rd July 2008, the Claimant filled two cash advance forms of N1, 500,000 each totaling N3, 000,000 in favour of Mr. Darlington Mbah for repair of staircase for the branch and rewiring of the Regional Office. Although the rewiring and repair of staircase were not carried out, the sum of N2, 350,000 was expended and the balance of N650, 000 paid into Mr. Darlington Mbah’s account and later to the Claimant’s account on 14th November 2008 who held on to it until 17th February 2010 when he refunded it to the Bank. The Claimant was queried in 2010 and he answered the query and by exhibit E dated 14th April 2010 suspended indefinitely. The matter was referred to the Corporate Audit Group for investigation which found him culpable and sanctionable under section 8, subsection 11 of the Bank’s Disciplinary Policy and Sanction Grid, exhibit K. On 22nd July 2010, the Claimant was dismissed hence this action. The Defendant raised two issues for determination. Issue one is whether the dismissal of the Claimant conformed with the laid down rules, regulations and procedures of the Defendant? Issue two is whether the Claimant has proved his case beyond the preponderance of evidence to entitle him to any and/or all of the reliefs sought by him? Learned Counsel answered issue one in the affirmative and submitted that the dismissal of the Claimant for his reprehensible act was in tandem with the laid down rules, regulations and procedures of the Defendant. He contended that the Claimant’s employment was one of master and servant with the implication that it could be determined by the master at any time for any cause or for no cause at all. It was submitted that in a master-servant relationship, determination of the servant’s employment cannot be considered unlawful, null and void and relied on Union Beverages Ltd. v. Owolabi [1988] 1 NWLR [pt.86] 128 and Esievwore v. NEPA [2002] FWLR [pt.124] 398 at 408. It was argued that save for paragraphs 21, 22, 25, 30, 31 of the statement of claim and paragraphs 11, 13, 14, 19 of the amended reply to statement of defence which merely stated that the Defendant failed to observe the procedures as stipulated in its rules and procedures in dismissing him, the Claimant did not relate his dismissal to these rules and procedures; and by this failure the Claimant has woefully failed to discharge the burden of proof placed on him. On issue two, learned Counsel argued that the Claimant did not prove the ingredients of his case to entitle him to any relief. He posited that the Claimant was probating and reprobating at the same time and was totally unable to prove his case. The Claimant also raised two issues for determination. Issue one is whether the purported dismissal of the Claimant was done in substantial compliance with the provisions of the Defendant’s human capital management policies manual 2006 and other regulations? Issue two is whether the Claimant has succeeded in establishing his case and therefore entitled to judgment? Arguing issue one he submitted that in the issue of dismissal laid down procedures and processes must be followed and dismissal may be wrongful on account of breach of procedure and referred to Ajokore v. Kwara State College of Technology & Ors. [1996] NWLR 34 pg. 29 and 46. Relying on Katto v. CBN [1999] 6 NWLR [pt.607] 390 at 405 he submitted that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. He explained that the Claimant placed his employment documents before the Court and referred to exhibits A, B, C and D. He argued that the Defendant failed to comply with exhibit K page 8 paragraph 6. He submitted that where there are statutory procedural requirements for termination of employment, the procedural requirements must be fulfilled, otherwise the termination will be invalid and referred to The Council of Federal Polytechnic, Ede & Ors. v. Johnson K. Olowookere [2012] LPELR-7935[CA]. It was further argued that the Claimant’s employment was terminated because of non-liquidation of cash advance of N650, 000 which was not classified in Article 5.1[vi] of exhibit J as a fraudulent activity. He contended that there is no evidence of a previous case of misconduct or two warnings recorded against the Claimant as provided in Article 7.2 of exhibit K, yet he was dismissed which action is excessive, unwarranted and punitive and relied on Osisanya v. Afribank [Nig.] Plc [2007] 6 NWLR [pt.1031] 565. On issue two, he explained that the terms and conditions of service of the Claimant is contained in exhibit F and by section 2.2.3 of exhibit F the Defendant is enjoined to pay a staff on suspension 50% of his basic salary which was not observed and as such the Defendant cannot benefit from its wrong. He submitted that it is settled law that he who asserts must prove and the Claimant has discharged both the legal and evidential burden of proof cast on him and referred to Akinfe v. UBA Plc [2007] 10 NWLR [pt.1041] 185.
  2. The issues for determination raised by the parties are similar. It is my considered opinion that issue two of the Defendant and the Claimant is sufficient to resolve the dispute in this case. Accordingly, I will adopt it with a slight modification, to wit: whether the Claimant has proved his case on a balance of probabilities to entitle him to the reliefs sought or any of them? It is settled law that the burden of proof is on the Claimant who alleges wrongful termination of his employment and he discharges this by setting out the terms and conditions of his contract of service and the manner in which it was breached. See sections 131[1] and 133[1] of the Evidence Act 2011 and Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31, Rev. Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26 and Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24. In Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, Niki Tobi, J.C.A. [of blessed memory, as he then was] held that:

“The onus is on the person alleging wrongful dismissal or termination of appointment to so prove. See College of Medicine v. Adegbite [1973] 5 SC 149. And he has to discharge the onus by relying on the contract of service and the notice of wrongful dismissal and termination. The law will not allow the party to vegetate on general common law provisions which are not contained in the contract or anticipated therein.”

Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought.

  1. Before I continue, I would like to observe that the manner in which the parties filed their pleadings is in breach of the Rules of this Court. After receipt of the originating processes, the Defendant filed its statement of defence, followed by the Claimant’s reply to the statement, then a rejoinder to reply to the statement of defence, amended reply to statement of defence and amended rejoinder to the amended reply to the statement of defence. Although, the Court of Appeal, per Aderemi, J.C.A. [as he then was] in C. C. Odunukwe v. Moses Taiwo Adebanjo [1999] LPELR-6557[CA] at page 10, referring to Order 18 rule 4 of the Rules of the Supreme Court of England, observed that the category of pleadings includes statement of claim, statement of defence, rejoinder, surrejoinder, rebutter or surrebutters, by the combined effect of Orders 15, 30, 32 and 33 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 where a Defendant served with an originating process wishes to defend the suit, he shall file a statement of defence; and the Claimant may file and serve a reply to the statement of defence. If either party desires to plead any other facts, it can only be done through amendment of his initial process, the statement of facts or the statement of defence. See Order 26 rule 2 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. I am mindful of Order 30 rule 19[2] of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, which provides:

“Where a pleading subsequent to Reply is not ordered, then at the expiration of seven [7] days of the service of the Defence or Reply [if a Reply has been filed] pleadings may be deemed closed.”

By this sub-rule, any pleading subsequent to a reply to the statement of defence must be with the leave of the Court. See also C. C. Odunukwe v. Moses Taiwo Adebanjo [supra] at page 7. There is no evidence before me that the Defendant obtained the leave of this Court before filing the rejoinder to reply to the statement of defence and the amended rejoinder to the amended reply to the statement of defence. I am aware that the amended rejoinder to the amended reply to statement of defence was withdrawn, the rejoinder to reply to the statement of defence was not regularised. My learned brother, Hon. Justice Awwal Ibrahim [of blessed memory] in allowing the Claimant’s motion on notice dated 2nd April 2017 amending the Claimant’s reply to statement of defence was under the impression that it was a motion for extension of time to file a reply to amended statement of defence. This is evident in his ruling of 22nd May 2017 when he ordered thus:

“Order as prayed. Leave granted the Claimant to file his reply to the amended statement of defence. The said reply to amended statement of defence is hereby deemed properly filed and served.”

There was no amended statement of defence and so there could be no reply to “the amended statement of defence”. It is important that learned Counsel at all times, as ministers in the temple of justice, assist the Court in doing the right thing. It is reprehensible for Counsel to knowingly file processes contrary to the Rules of this Court. In Nkemdirim Dimgba Kalu v. John J. Iheke Agu & 2Ors. [2014] LPELR-22849[CA] at pages 50-51, Ige, J.C.A. held:

“The main function of pleadings is to ascertain with as much certainty as possible the various matter there are actually in dispute and those in which there are agreement between the parties and thus to appraise the opposing party in the action of the case the pleader is making so as to avoid any surprise at the hearing and to ascertain the issue or issues in controversy between the parties. In this regard, the parties will be enabled to settle beforehand the evidence it shall adduce at the hearing. Pleadings are closed when parties come to issue. If both the statement of claim and the statement of defence do not bring the parties to issue on all the claims, the plaintiff shall file a reply.”

By the Rules and practice of this Court, a reply to the statement of defence marks the end of pleadings in this Court in the absence of an application for leave to amend the statement of facts or statement of defence. Consequently, the filing of the rejoinder to reply to the statement of defence, amended reply to the statement of defence and the amended rejoinder to the amended reply to the statement of defence are inappropriate and untenable under the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. Ordinarily, the processes should be struck out but since parties appear to have misinterpreted the ruling of this Court on 22nd May 2017, I will not strike it out in the interest of justice.

  1. Having regard to the facts of this case, it is plain to me that this is an ordinary master and servant relationship. The parties are agreed that exhibits A, C, F, J and K govern the employment relationship. In Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25, it was held that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of the parties thereto. The thrust of the Claimant’s complaint is that in dismissing him the Defendant did not comply with the terms and conditions of his contract of employment. It is, therefore, important to look at the salient provisions of exhibits F, J and K and see the disciplinary procedure stipulated therein, the offences specified and punishment for the offence alleged against the Claimant and the effect of exhibit G, the letter of dismissal. Article 2 of exhibit F deals with code of conduct and disciplinary action policy. The relevant paragraphs are reproduced here.

“2.1.1 Any violation of a PlatinumHabib Bank rule or regulation will be sufficient ground for disciplinary action, which may range from verbal correction to instant dismissal depending on the enormity or gravity of the act.”

“2.1.2 No disciplinary action should be taken against an employee without an investigation or due process carried out by the Regional Office Disciplinary Committee taken to establish the facts and decision made by the Management Disciplinary Committee.”

“2.1.3 All cases of dismissal/exit must be reviewed and determined by the Management Disciplinary Committee making recommendation for approval by the Managing Director/Chief Executive Officer for staff below the Senior Executive Associate level or to the Board Committee on Human Capital for staff from the Senior Executive Associate and above.”

“2.1.8 The appropriate disciplinary action to be taken must be consistent with laid down procedure.”

“2.2.3 Employee[s] suspended due to investigations will be paid only 50% of their basic salary for the duration of the suspension. After investigations are concluded, if the employee is found liable, appropriate disciplinary action will be taken. Otherwise, the employee is reinstated and paid the balance of his/her withheld salaries and allowances for the period under suspension.”

“2.4.1 Summary dismissal shall be effected by the bank in a case of financial dishonesty and/or fraud of any disguise and/or any gross misconduct, serious breach or none observance of any of the Bank’s rules and regulations, willful disobedience of a lawful order or serious negligence.”

  1. Exhibit J is the Standard Operating Procedures Manual Funds Transfer and does not prescribe any disciplinary procedure. Consequently, the provision of Article 1 paragraph 5 page 4 which states that “where there is a material conflict in the provision as contained herein and any other existing document, procedure or policy, the procedures as provided in this control handbook shall override” should be understood with reference to the procedure for funds transfer stipulated in the document. This notwithstanding, the paragraphs of exhibit J relevant to this judgment is Article 5 which deals with cash advance/expense processing. Paragraphs 5.1.v., vi and xii provide:

“5.1.v Cash advances shall be retired and liquidated with adequate supporting documents [vouchers/receipts] within three [3] working days of the performance or conclusion of the related transaction.”

“5.1.vi Any advance that is not retired and liquidated within three [3] working days from the completion of the purpose for which it was taken shall be liquidated into the account of the staff that collected/benefited from the advance.”

“5.1xii All outstanding/overdue advances shall be immediately liquidated into the accounts of the affected staff.”

  1. Exhibit K is the BankPHB disciplinary policy and sanction grid. Paragraph 2 Article 1 page 3 echoes Article 2.1.1 of exhibit F. Paragraph 3 is very instructive and echoes Article 2.1.2 of exhibit F. It provides that “No disciplinary action should be taken against an employee without an investigation or due process carried out by the Regional Disciplinary Committee. Or in the where required [sic] the case may be referred to the Management Disciplinary Committee for appropriate sanction.” My understanding of this is that exhibit K retains the dual disciplinary process, the Regional Disciplinary Committee and the Management Disciplinary Committee, the Management Disciplinary Committee being the reviewing authority with power to make recommendation to the Managing Director/Chief Executive Officer for staff below Senior Executive Associate level or to the Board Committee on Human Capital for staff from Senior Executive Associate and above. However, Article 4 appears to introduce two different disciplinary committees: the Central Disciplinary Committee and the Internal Bank Disciplinary Committee, which has the semblance of Regional Disciplinary Committee. Article 4.1 paragraph 6 page 5 provides “DC’s power is limited to issues involving staff on Senior Executive Associate [SEA] cadre. Issues involving staff on grade level above Senior Executive Associate shall be referred to EXCO.” The purport of this provision is not clear, but it seems to have removed disciplinary process for officers above Senior Execute Associate cadre from the Regional Disciplinary Committee. This position appears to be contradicted by Article 6 page 8 of exhibit K. Because of the importance of this provision, it is reproduced here:

          “6.      EMPLOYEE DISCIPLINE

“All cases of dismissal/exit must be reviewed and determined by the Management Disciplinary Committee making recommendation for approval to the Managing Director/Chief Executive Officer [MD/CEO] for staff below the Senior Executive Associate level or to the Board committee on Human Capital for staff from the Senior Executive Associate and above.”

“The employee shall be given an opportunity to state his/her case before the Regional Office Disciplinary Committee during the course of investigations.”

  1. This provision reinstates the dual disciplinary process with the Regional Office Disciplinary Committee being the first level in the disciplinary process. Also, it should be noted that Article 6 does not make a distinction between the categories of staff which is consistent with Article 2.1.2 of exhibit F. The words used in Article 6 are inclusive and mandatory. It provides that “all cases of dismissal/exit must be reviewed and determined by the Management Disciplinary Committee….” The use of the word ‘all’ is encompassing and includes all categories of staff, whether below Senior Executive Associate level or above it. This is reinforced in paragraph 2 of Article 6 which provides that the employee shall be given an opportunity to state his/her case before the Regional Office Disciplinary Committee during the course of investigations. The operative word is ‘shall’ which, in this context, is an imperative and does not admit of any discretion. See Rear Admiral Francis Echie Agbiti v. The Nigerian Army [2011] 45 NSCQR vol.1 388 at 433 and Veronica Nneka N. Ibeziako v. Professor Stephen M. Ibeziako [2016] LPELR-40958[CA] at pages 11-12. It is a mandatory provision and cannot be waived. This provision, therefore, in my view, supersedes Article 4.1 paragraph 6 on page 5 which provides that “DC’s power is limited to issues involving staff on Senior Executive Associate [SEA] cadre. Issues involving staff on grade level above Senior Executive Associate shall be referred to EXCO.” I have come to this conclusion because Article 6 comes after Article 4.1 and it is consistent with Article 2.1.2 of exhibit F. It is a well-established canon of statutory interpretation that in order to fully appreciate and understand the intention of the parties, the document should be read as a whole and not disjunctively or in isolation. See the case of Calabar Cement Co. Ltd. v. Abiodun Daniel [supra] at 761. In B.F.I. Group v. Bureau of Public Enterprises [2007] LPELR-8998 [CA] at pages 28-29, per Peter-Odili, J.C.A. [as he then was] held:

“In the construction of a contract, the meaning to be placed on it is that which is plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning as question of fact where the language of a contract is not only plain but admits of one meaning, the task of interpretation is negligible. The words are to be construed according to the ordinary meaning. When construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of documents. Where the contract is reduced into writing, the terms of such contract are to be deduced from the written agreement.”

Also, in Incorporated Trustees of Nigerian Baptist Convention & 12Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20, Tsammani, J.C.A., held

“Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the proper purpose of interpretation of such documents evidencing the agreement[s] of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, see Obikoya v. Wema Bank Ltd (1991) 7 NWLR (pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (pt.118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties.”

Accordingly, I hold that the disciplinary proceedings against the Claimant must be commenced first at the Regional Disciplinary Committee which has authority to refer the case to the Management Disciplinary Committee either for further investigation or approval.

  1. Looking at exhibit DW1C, it is clear that the investigation of the Claimant’s misconduct was carried out by the Corporate Audit Group. The Claimant averred in paragraph 14 of his amended reply to the statement of defence that his dismissal is in breach of the Standard Operating Procedures Manual Funds Transfer and BankPHB Disciplinary Policy and Sanction Grid. In response, learned Counsel for the Defendant argued in paragraph 4.07[1] page 6 of his written address that:

“The Claimant is an Internal Control staff following his reassignment to Internal Control Department of Defendant. He stated this much at paragraph 15 of his pleadings in amended reply to statement of defence. Being an Internal Control Staff, the Corporate Audit Group in compliance with the Rules of Defendant carried out the investigation of the allegation against the Claimant. We refer the Honourable Court to section 5.1 of the BankPHB Disciplinary Policy and Sanction Grid. Therefore, the type of allegation against Claimant was not of the sort that shall be carried out by the Regional Disciplinary Committee. Being an Internal Control Staff, investigation into Claimant’s infraction was carried out by the Corporate Audit Group as permitted by the BankPHB Disciplinary Policy and Sanction Grid.”

          Paragraph 15 of the amended reply to statement of defence states:

“In response to paragraph 8e and f thereof, the Claimant maintains that contrary to the spurious allegation made therein, he had personally sent an internet mail on the liquidation to the Head Office in January, 2010 before his reassignment as Head of Operations to Internal Control in February, 2010, whereof he covered Okpara Avenue and Nsukka Branches.”

          Article 5.1 of exhibit K is titled “Role of Parties in a disciplinary process” and provides:

  • Internal Control – shall be the first line of investigation and incident reporting, presentation of cases before the DC and have the right of dissent where DC decision is at variance with the bank’s provision.
  • Corporate Audit – shall investigate cases assigned to it by the MD/EDs, RD/DD and cases involving control officers, audit the process regularly to ensure it conforms to all labour and modern day practices.
  • HCMD – serves as the custodian of the DC proceedings, implements DC recommendations and disseminates learning points from disciplinary process to all staff.

Manifestly, the Claimant was not an internal control officer when disciplinary proceedings commenced against him. Assuming for a moment that he was, the Corporate Audit Group is not a disciplinary committee within the meaning of exhibit K. Ordinarily, Internal Control Department kickstarts the disciplinary process by carrying out preliminary investigation and reporting its findings for the purpose of constitution of a disciplinary committee against the staff. But, where “the MD/EDs, RD/DD” reports a case to the Corporate Audit Group, or the case involves an internal control officer, the Corporate Audit Group can undertake the investigation and prepare its report, in my considered opinion, for the purpose of constitution of a disciplinary committee. It is not the intendment of exhibits F and K that the Corporate Audit Group should be the prosecutor and judge at the same time. Its duty, in my respectful view, is to investigate and report to the disciplinary committee which reviews the report and takes representation from the offending staff before making recommendation to the Board Committee on Human Capital for an officer of the Claimant’s level. The report cannot be sent to the MD/CEO. See Article 2.1.3 of exhibit F and Article 6 of exhibit K. The recommendation by the Corporate Audit Group to the CEO is irregular and in breach of exhibits F and K.

  1. Article 5.2 of exhibit K details the disciplinary procedure. It provides as follows:

“5.2.1 For any breach of rule, the Unit/Department/Group/Divisional Head shall in the first instance examine all complaint against an employee.”

“5.2.2 The employee shall be given a query to explain the circumstances that led to the breach of rules for which the employee should respond to.”

“5.2.3 If the Head is not satisfied with the employee’s explanation, the case will be referred to the next level of authority for further investigations and decision.”

“5.2.4 In the case where the decision states unsatisfactory answer/response, the reports and comments shall be forwarded to the Head of Internal Control Department for further investigation, especially if considered to be of fraudulent intent. The reports/recommendations of the Internal Control Department shall be returned to the Regional and/or Management DC for further investigations or approval.”

Article 5.2.4 of exhibit K takes the wind off the sail of the submission of learned Counsel for the Defendant. Exhibit K does not intend that the Internal Control Department or the Corporate Audit Group should usurp the role of the Regional Disciplinary Committee or Management Disciplinary Committee. The responsibility to recommend for punishment inheres in the Management Disciplinary Committee not the Corporate Audit Group as argued by the Defendant. The law is settled that it is within the right of an employer to terminate the services of the employee, but where conditions for such termination are terms of the contract of service, such conditions must be satisfied. See the cases of Dr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] LPELR-864[SC] 1 at 28 and Mrs. C.O.A. Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board [1993] LPELR-1233[SC] at pages 14-15. The Defendant, having specified a procedure for dismissal of the Claimant, is under an obligation to comply with the procedure and non-compliance renders the dismissal wrongful. It is trite that justification of a particular dismissal is a question of fact that must be established in evidence; and the onus is on the Defendant to justify the dismissal when challenged by the Claimant. See Nigerian Employment and Labour Relations Law and Practice by Chioma Kanu Agomo at pages 174 and 176.  In U. T. C. Nigeria Ltd. v. Samuel Peters [2009] LPELR-8426[CA] at page 18-19, it was held that where conditions of service exist between the employer and the employee, the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. Also, in Fiicharles Organ & 14Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [2016] 8 ACELR 35 at 52, per Muhammad, J.S.C., held:

 

“Again it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee.”

In P. C. Mike Eze v. Spring Bank Plc [2014] 3 ACELR 39 at 60, Rhodes-Vivour, J.S.C., observed:

“Now, to determine whether the dismissal of an employee was correct or wrong, the terms of employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is a departure from the prescribed procedure or a violation of the elementary rules of natural justice, then the dismissal is unlawful.”

Applying this principle to the facts of this case, it is clear that exhibit DW1C is in breach of exhibits F and K and exhibit G founded upon it is bad and incurably bad. Accordingly, I resolve issue one of the Defendant’s issues for determination against the Defendant and hold that the dismissal of the Claimant did not conform with the laid down rules, regulations and procedures of the Defendant.

  1. This leads me to a consideration of the Claimant’s claims in this suit. The first relief is fora declaration that the termination of the appointment and/or the purported dismissal of the Claimant by letter dated 22nd July 2010 contrary to the provisions of Human Capital Management Policies Manual 2006 is unlawful, null and void and of no legal effect whatsoever. As I have found above, the events leading to the dismissal of the Claimant did not follow the disciplinary procedure prescribed in exhibits F and K. Non-compliance with the Defendant’s disciplinary procedure vitiates exhibit G and renders the dismissal wrongful. I therefore find and hold that the Claimant’s dismissal is contrary to exhibits F and K and consequently wrongful; but the dismissal is not null and void and of no effect whatsoever. The effect of holding that a dismissal is null and void and of no effect whatsoever is that the contract of employment is still subsisting. This Court cannot make a declaration in an ordinary master and servant relationship that the contract is still subsisting. This is so because the Court cannot force an employee on an unwilling employer. See Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] LPELR-2809[SC] at pages 25-26, where Ogbuagu, J.S.C., held:

 

“It need be stressed and this has long been settled, that in a master and servant relationship, a dismissal of an employee by the employer, cannot be declared null and void and of no effect whatsoever as claimed by the appellant in this case leading to instant appeal. The remedy as is also settled, is an award of damages, where the termination or dismissal, is held to be wrongful.”

Relief one therefore fails and it is dismissed.

  1. Relief two is for re-instatement of the Claimant and payment to him of all his entitlements as an employee of the Defendant. This claim flows from and is dependent on the success of relief one above. There must be a declaration of right in favour of the Claimant before an order for his reinstatement can be made. Once the principal relief sought is refused, no order incidental to the principal relief can be granted. SeeBenjamin Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] at page 29. No such declaration was made in favour of the Claimant. Reinstatement is not possible in an ordinary master and servant relationship. In Mr. Kunle Osisanya v. Afribank Nigeria Plc [supra] at page 19, Katsina-Alu, J.S.C., held that the Court cannot impose a servant on an unwilling master. In P. C. Imoloame v. West African Examinations Council [1992] LPELR-1500[SC] at pages 21, Karibi-Whyte, J.S.C., held that specific performance or reinstatement is generally not the remedy in respect of contract of personal service. Consequently, this claim fails also and it is hereby dismissed.

  1. The third relief is for an injunction restraining the Defendant, its servants, agents, and privies from denying the Claimant his rights, privileges and interests as an employee of the Defendant. This relief is in the nature of a perpetual injunction and it is trite law that a perpetual injunction will only be granted in favour of the Claimant if he has satisfied the Court that he has a legal right to be protected by the Court. SeePa Tayo Ojo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] 60 and Prince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

There is nothing before me showing that the Claimant has a legal right to be protected by this order of injunction. I have found earlier that this Court cannot impose the Claimant on the Defendant. Consequently, an order of injunction restraining the Defendant, its servants, agents, and privies from denying the Claimant his rights, privileges and interests as an employee of the Defendant cannot be made. This relief fails and it is dismissed.

  1. I will now proceed to look at the Claimant’s alternative relief. He claimed for the sum of N50, 000,000 [fifty million naira] aggravated damages for unlawful termination of the Claimant’s appointment by the Defendant. The evidence in proof of this claim is in paragraphs 27 to 33 of the Claimant’s statement on oath. For emphasis it is reproduced below:

“27.    I have been unduly punished for the late refund of these funds inspite of the fact that I had no fraudulent intent.”

“28.    I have been used as a sacrificial lamb without any moral or legal justification for so doing.”

“29.    The Defendant has failed, refused and/or neglected to conduct a thorough investigation into this matter, inspite of verifiable facts that demands for same.”

“30.    I do not deserve the dismissal order as that is not the appropriate punishment for the said offence [if any]. Since dismissal is meant for grievous offence or other gross misconduct seldom experienced in the banking sector.”

“31.    The Defendant’s action is malicious and vindictive and it is absolutely outside the Manual.”

“32.    By this coercive and unwarranted action the Defendant has ruined my career.”

“33.    I gave my youth to the Defendant and find it impossible to live under a new environment.”

The Defendant’s response is in paragraphs 14 and 15 of the Defendant’s witness’ statement on oath dated 31st March 2015. It is reproduced here.

“14.    The Defendant states that it thoroughly investigated this fraud, committed by Claimant gave Claimant fair hearing and meted adequate punishment to him in line with policy. No staff including Claimant was used as a sacrificial lamb.”

“15.    Defendant states further that the action of the Claimant in converting its fund was a complete betrayal of the confidence reposed in him, especially given the position he occupied in its system and which he used to conceal all facts regarding this conversion and theft. With the discovery, integrity was lost and having proven the fact of conversion to which the Claimant admitted and pleaded for forgiveness, Defendant applied its rules in dismissing him.”

  1. There is nothing in the Claimant’s evidence in proof of the claim for aggravated damages. Aggravated damages is unlike general damages which the Court can award as flowing naturally from the breach. Aggravated damages is akin to punitive damages which is defined in the Black’s Law Dictionary 10th edition at page 474 as “damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit… Punitive damages, which are intended to punish and thereby deter blameworthy conduct, are generally not recoverable for breach of contract.” In Anthony Odiba v. Tule Azege [1998] 7 SC [pt.1] 79 at 92-93, Iguh, J.S.C., observed that:

“It is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilized men.”

It cannot be seriously argued, from the facts of this case, that the Defendant’s conduct is high handed, outrageous, insolent, vindictive, oppressive, malicious or showed a contempt of the Claimant’s rights, or that it disregarded every principle which actuates the conduct of civilized men. No doubt, the Claimant’s conduct is reprehensible. By his admission under cross-examination, the cash advance he raised was in excess of his approval limit. See Articles 5.3.iii and vii of exhibit J. The Defendant served him with a query and he answered the query before the case was passed to Corporate Audit for investigation. The issue here is that the Defendant did not comply with the disciplinary procedure stipulated in exhibits F and K, and not that, from the evidence elicited against the Claimant, it could not dismiss him. Article 2.1.1 of exhibit F provides that “Any violation of a PlatinumHabib Bank rule or regulation will be sufficient ground for disciplinary action, which may range from verbal correction to instant dismissal depending on the enormity or gravity of the act.” Article 2.4.1 provides that summary dismissal “shall be effected by the bank in a case of financial dishonesty and/or fraud of any disguise and /or any gross misconduct, serious breach or none observance of any of the Bank’s rules and regulations, willful disobedience of a lawful order or serious negligence.” There is no doubt that the misconduct alleged against the Claimant comes within this provision. There was a serious breach or non-observance of the Defendant’s regulations by the Claimant. Accordingly, I find and hold that the claim for aggravated damages has not been made out. This claim therefore fails and it is dismissed.

  1. However, where there is a wrong there must be a remedy. See Michael Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] at page 43. I have found that in dismissing the Claimant, the Defendant did not comply with the disciplinary procedure prescribed in exhibits F and K and accordingly his dismissal is wrongful. In Olabode Adewunmi v. Nigerian Eagle Flour Mills [2014] LPELR-22557[CA] at page 29, it was held that in a master and servant relationship a dismissal of the employee cannot be declared null and void and of no effect whatsoever. The employee’s remedy is in damages where the termination of the appointment or dismissal is held to be wrongful. The damages recoverable in cases of wrongful dismissal are losses reasonably foreseeable by the parties at the time of the contract as the inevitable consequence of a breach. It does not include speculative or sentimental values. It has been held that the Court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh employment. See Shena Security Co. Ltd. v. Afropak [Nig.] Ltd. & 2Ors. [2008] 4-5 SC 117 at 149-150. In P. C. Imoloame v. West African Examinations Council [supra] at page 23, Karibi-Whyte, J.S.C., held:

“It is well settled that in cases of wrongful dismissal the measure of damages is prima facie the amount the plaintiff would have earned had the employment continued according to contract subject to a deduction in respect of any amount accruing from any other employment which the plaintiff, in minimizing damages, either had obtained or should reasonably have obtained.”

Paragraph 2, page 2 of exhibit C under severance provides that “Either party shall determine this contract by giving one [1] month notice or payment for the same period in lieu of notice.” In Aminetu Omolola Salami v. Union Bank of Nigeria Plc [2010] LPELR-8975[CA] at page 24, the Court of Appeal, per Lokulo-Sodipe, J.C.A., held that the measure of damages in a situation where the employer on giving the prescribed notice has a right to terminate the contract before the end of the term apart from other entitlements should be limited to the amount the Claimant would have earned over the period of notice bearing in mind that the Claimant has a duty to minimize the damage he sustains by the wrongful dismissal. Ordinarily, the Claimant is entitled to payment of one month’s salary in lieu of notice but he did not claim for it and I am not in a position to grant a relief not sought.

  1. The next issue is non-payment of 50% of the Claimant’s basic salary while on suspension. Learned Counsel for the Defendant contended that by section 7.1.2 of exhibit K the Claimant is not entitled to 50% of his salary. In determining whether the Claimant is entitled to 50% of his salary or not I will need to look at the letter of suspension, exhibit E, since the query letter was not exhibited.  Exhibit E is captioned “RE: MISAPPROPRIATION OF N3MILLION CASH ADVANCE FOR THE REPAIR OF STAIR CASE IN OKPARA AVENUE [ENUGU] BRANCH.” The Black’s Law Dictionary, 10th edition, page 1148 defined misappropriation as “the application of another’s property or money dishonestly to one’s own use.” There is no evidence before the Court that the Claimant misappropriated the Defendant’s N3, 000,000. The evidence before this Court is that the cash advance was processed in the name of Mr. Darlington Mbah who collected the sum of N3, 000,000 and delivered to Mr. Joseph Nwatu, the Regional Manager, who also retired the sum of N2, 350,000. The balance of N650, 000 kept by the Claimant had been repaid to the Defendant before issuance of exhibit E. Moreover, Article 5.1.vi and xii provide that “Any advance that is not retired and liquidated within three [3] working days from the completion of the purpose for which it was taken shall be liquidated into the account of the staff that collected/benefited from the advance.” By the Defendant’s rules, the failure to promptly retire cash advance is not a fraudulent activity and the case of conversion is not made out against the Claimant since the money was returned before his suspension. Consequently, I find and hold that Article 7.1.2 of exhibit K does not apply to disentitle the Claimant from 50% of his basic salary for the period he was on suspension. In the circumstance, I hold that the Claimant is entitled to 50% of his salary from the time of suspension to the date of his dismissal. Again, he did not claim for this amount even though the issue was raised in his pleading and written address.

  1. Before I conclude I would like to comment on the issue raised in paragraph 4.12 of the Claimant’s final written address that there is no scintilla of evidence that the Claimant had a previous case of misconduct or two warnings recorded against him as provided in Article 7.2 of exhibit K yet he was dismissed. Article 7.2 deals with termination of employment while Article 7.3 deals with dismissal. Article 7.3 provides inter alia that “summary dismissal shall be effected by the bank in case of financial dishonesty and/or fraud of any disguise and/or any gross misconduct, serious breach or none observance of any of the Bank’s rules and regulations.…” There is no requirement of previous recorded warning or case of misconduct against the offending staff in a case deserving of dismissal. InNational Judicial Council & Ors. v. Hon. Mr. Justice C.P.N Senlong & Ors. [2010] LPELR-4582[CA] at page 42, it was held that the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality. Accordingly, the submission is misconceived and hereby discountenanced.

  1. Also, it is not the law, as submitted by the Claimant in paragraph 4.15 of his written address, that the accusation of commission of a crime must be proved beyond reasonable doubt and that the finding of guilt by an investigative panel “will not stand the face of the law.” This submission, with all due respect, is misconceived. InSamson Babatunde Olarenwaju v. Afribank Nigeria Plc [2001] 7 SC [pt.111] 1 at 18 [relied on by the Claimant] the Supreme Court, per Katsina-Alu, J.S.C., held:

“We must bear in mind that the present case is one of master and servant with written and express terms of employment. Where therefore an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted above, the master has a choice – either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. In other words, prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal.”

Consequently, I hold that a prosecution in Court is not a condition precedent to a dismissal.

  1. On the whole, this suit fails for want of proper pleading and reliefs. The Claimant’s dismissal is in breach of exhibits F and K and thus wrongful but having not claimed general damages, this Court is not at liberty to award to the Claimant a relief not claimed. SeeShena Security Co. Ltd. v. Afropak [Nig.] Ltd. & 2Ors. [2008] LPELR-3052[SC] at page 36, where the Supreme Court, per Muhammad, J.S.C., held that a court of law is not known or equated to a charitable organization or Father Christmas which distributes largesse to all and sundry. Consequently, this suit fails in its entirety and it is hereby dismissed. Pursuant to Order 55 rule 2 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, cost of N200, 000 is awarded in favour of the Claimant against the Defendant. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

17/10/18

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