LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

MR. OSHAJARE CHRISTOPHER SUNDAY -VS- ECOBANK NIGERIA

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO NICN/LA/441/2018

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN

 DATE: 12th March, 2020

BETWEEN

  1. OSHAJARE CHRISTOPHER SUNDAY—————- Claimant

AND

ECOBANK NIGERIA  LIMITED ——————————- Defendant

REPRESENTATION:

  1. Ebhoman Esq. For the claimant.
  2. Anozie Esq. with A. Ajiboye Esq. and L. Ebuzoeme Esq.

JUDGMENT.

The claimant commenced this action by a complaint on the 17/8/2018 wherein he sought the following relieves from this court;

  1. An order declaring null and void the purported dismissal of the claimant via the defendant’s letter dated 3rd of February, 2017 as the said dismissal was without any Justification whatsoever.
  2. Upon the grant of prayer (i) above. An order directing the defendant to pay the claimant all his salaries from the 6/1/2017, when the claimant was asked to stop work by the defendant till judgment is delivered in this case.
  3. An order mandating the defendant to immediately write to the Central Bank of Nigeria (CBN), retracting its earlier letter reporting the purported dismissal of the claimant to the CBN and thereafter filing a copy of the said letter with this honourable court to ensure compliance
  4. An order directing the defendant to immediately calculate the entitlements of the claimant in accordance with the defendant’s Policy Handbook and pay same to the claimant.
  5. The sum of N1,000,000 (One Million Naira) as damages for wrongful dismissal.

Filed along with the complaint is a statement of facts, witness deposition of the claimant, list of document and a list of witnesses. Upon being served with the complaint, the defendant filed a statement of defence and a witness deposition of the defendant witness on the 25/10/2018. On the 26/11/2018, the claimant filed a reply to the statement of defence along with a further witness deposition. On the 22/11/2019 the defendant was granted leave to file and rely on additional document at the hearing of this suit.

Hearing in this suit commenced on the 27/11/218. The claimant testified as CW1. He adopted his two witness deposition and went on to tender the following documents in evidence;

1)    Letter of appointment dated 26/10/2006 marked as Exhibit C1.

2)    Letter of dismissal dated 3/2/17 marked as Exhibit C2.

3)    Document being part of Staff Policy Handbook marked as Exhibit C3.

4)    Claimant solicitor’s letter dated 11/4/2017 marked Exhibit C4

5)    Reply to the claimant solicitor letter marked as Exhibit C5.

6)    SMS message trail between the claimant and Idonor Marvel marked Exhibit C6.

The claimant was cross examined and he closed his case. However on the 11/2/2019 the claimant applied and with the leave of court, he was recalled to further testify and was cross examined by the defence counsel.

The defence opened their case on the 22/10/2019. Mr Francis Fisayo Dehinbo a staff of the defendant testified as DW1. He tendered the following documents in evidence;

  1. Claimant letter of dismissal marked as Exhibit D1.
  2. Human Resources Policy of Ecobank marked as Exhibit C2.
  3. Letter of Protest dated 13/7/16, against non-allocation of foreign exchange by the MD of Gojack Merchant Int,l Ltd. marked as Exhibit D3 a, b, c, d, e, f, g, h, and i.
  4. Another letter dated 8/7/16 protesting non-allocation of foreign exchange marked as Exhibit D4a, b, c, d, e, f, g, h, i, j, k, l, m and n.
  5. Internal memo dated 11/8/2016, marked as Exhibit D5.
  6. Extract of disciplinary committee hearing marked as Exhibit D6.

The defendant witness was cross examined and re-examined. The defendant closed their case. The parties adopted their final written addresses on the 27/1/2020.

BRIEF FACTS OF THE CASE.

The claimant was employed by the defendant on the 26/10/2006. As an executive trainee and rose to the position of Relationship Manager until he was terminated of his appointment via a letter dated the 3/2/2017. The fact surrounding his termination is that a company named Gojack Merchants  Int’l Ltd. a customer of the defendant had several matured bills obligation for collection which were delayed by the non-allocation of foreign exchange to the customer by the defendant despite the fact that the customer’s account was well funded. The customer’s account was being debited every other week to the CBN for forex without success. The company became agitated and threatened to report the defendant to the regulatory authority, the claimant as the account officer was asked to manage the customer’s affairs. The claimant allege that following the failure to satisfy the customer’s forex requirement, the company in collaboration with one Idonor Marvel a staff of the defendant SME unit had to look for alternative source of foreign exchange to meets its obligation. An exporter with export proceeds was located, negotiations were concluded and a Diamond Bank account number was sent by the said Idonor Marvel to the claimant to forward to Gojack k for transfer of the naira equivalent of the forex. The company refused to credit the account when it realised that the defendant was deliberately refusing to allocate forex to it and was using Gojack k Merchant Ltd. funds to shore up its financial books. The Company petitioned the defendant and demanded explanation over the state of affairs. The claimant allege that rather than address the complaint in the petition, the defendant decided to dismiss the claimant on the grounds that the claimant got involved in conflicting and unprofessional business deals with a customer of the bank, which the claimant denies. The claimant alleges that his involvement with Gojack k Merchant Ltd. was official and he did not derive any benefit pecuniary or otherwise in the discharge of his responsibility as an officer of the bank. The claimant contend that his dismissal was unjustified and without any basis.

The defendant position is that the claimant joined the services of the bank in 2005 as an executive trainee and was dismissed from the bank for gross misconduct. The defendant allege that the claimant’s dismissal was in respect of the claimant’s non-allocation of foreign exchange to one of the defendant’s customers, Gojack Merchant International Company Limited, amongst other violations of the defendant’s Human Resources policies & Procedures of December 2016. The defendant allege that the c1aimant being the Relationship Manager of the customer solicited for gratification from the customer before processing foreign exchange for the customer. The defendant state that the action initiated by the claimant to seek alternative foreign exchange for the defendant customer was not sanctioned by the bank. The defendant further stated that it never withheld or refused allocation of foreign exchange to its customer, but only received a letter of complaint from the defendant’s customer with respect to the claimant seeking gratification before processing forex for the customer, this was investigated by the Audit Department on the 7/10/2017, after the claimant was notified of the complaint against him and was given an opportunity to defend himself. The investigation report revealed that the claimant engaged in pararel banking with conflict of interest and solicited gratification from the defendant customer before processing the forex. In line with the report of the committee, the claimant was dismissed from the employment of the defendant.

This is the state of the pleadings of the parties in this action.

From the facts and circumstances of this case This court is called upon to determine

(1)            Whether the dismissal of the claimant by the letter dated 3rd February 2017 was justified under the circumstances’.

(2)            Whether the claimant is entitled to the reliefs claimed in this action. 

 These two issues will be considered jointly in this judgment. First I must state that at common law, in a contract of service for which the present action is one, the law is that the master is at liberty to terminate the employment by complying with the condition provided in the contract. Where the termination/dismissal is on grounds of misconduct, and the employer gives reason for such termination, he is under a duty to justify the reasons given for the termination. In the case of Adebayo Sunday Joseph & Ors V. Kwara State Politechnic & Ors [2013] LPELR-21398 (CA). The Court of Appeal reiterated this position when it held;

….I also agree that under the common law principle of Master/ Servant   relationship, an employee can be dismissed for any act of misconduct, which must be established by evidence if the dismissal is challenged in court.

 

 In Exhibit C2. The claimant letter of termination dated 3/2/2017. The defendant in terminating the employment of the claimant wrote;

It was discovered you got involved in conflicting and unprofessional business deals with a customer of the bank. Your action in that respect is a breach of the bank policy and amounts to gross misconduct which is contrary to your contract of employment. Under the bank disciplinary code, the breach is sanction-able by dismissal from the bank’s employment therefore you are hereby dismissed from the services of the bank with effect from the date of this letter. 

The claimant has challenged this dismissal in this action and in the first relief, the claimant is saying that his dismissal by Exhibit C2 is without any justification whatsoever. This raised the question whether the defendant has in his pleadings and evidence tendered before this court adduced sufficient evidence as required by law to justify the reasons given in the letter of dismissal.

The defendant case is that the defendant customer who was seeking foreign exchange made a complain in exhibit D3 and D4 to the defendant with respect to the manipulation and extortion of his company by officers of the defendant through the petition titled ‘ Protest Against Non Foreign Exchange Allocation To Our Company By Your Bank’. Attached to the petition is an sms communication between the claimant and the Managing Director of the company. The petition also stated that ‘some of the defendant branch heads if not all, are being pushed by a syndicate group at your treasury office to demand for extra funds to facilitate processing of the FOREX bid’. Defendant argued that the person being referred to here is the relationship manager i.e. the claimant in this action. It is also his contention that as stated in the second petition i.e Exhibit D4,  provide evidence of a certain branch head of Coker-Orile branch, where the branch head of Orile-Coker branch’ requested for payment of the sum of N972,000,000 which , represents N12/USD$1 for the processing of forex. As stated in the complaint the branch head of Orile-Coker branch requested that the payment be effected in the Diamaond Bank Account owned by LUBEN GLOBAL Ltd. (A/C No 0050962540). The defendant counsel has argued that Exhibit D reveal that the demand for the sum of N972,000 was made by the claimant and not the branch head of Orile –Coker branch. He also argued that the claimant admitted in paragraph 10 of his pleadings that he was the one who forwarded the Diamand Bank  account number to the defendant customer.

Exhibit D3 and D4 resulted in the Audit group investigation report which was tendered as Exhibit D5. The following findings were made ;

  1. That the Claimant sent a text message to the customer indicating a review of premium ( commission of N 12/USD$1) payable by the customer in order to be allocated a sum of $81,000.00 due to their suppliers.
  2. That the text message was sent from telephone number 08036644085 belonging to the claimant.
  3. That based on the demand from the Claimant, the customer drew up a cheque in the sum of N972,000.00 which represents N12/USD$1 to be paid to an account owned by LUBEN Global Limited domiciled in Diamond Bank.
  4. The corporate search report from CAC on Luben Global Limited (the intended beneficiary of the premium of N972,000.00 at Diamond Bank) revealed that the directors of the company are Joy Nwaezeapu and Ben Nwaezeapu.
  5. That Joy Nwaezeapu is an ex-staff of the defendant who engages in the business of selling export proceeds to importers at a premium, which is therefore a competitor to the defendant.
  6. The customer vide telephone number 08033029267 further confirmed the allegations against the claimant. (these were the deductions made by the defendant counsel in his final written address)

I have read the report. The report also stated the following findings;

  1. Oshajare Christopher while responding to our enquiry on what led to the demand of N12/USD$l , amounting to N972,000.00 from the customer which was to be paid into an account of Luben Global Limited domiciled at Diamond Bank, denied soliciting for any commission from the customer. He also denied any relationship with Luben Global Limited but stated that the customer discussed with one joy who is a signatory to Luben Global Limited account. and also an ex-staff in the branch for export proceeds on phone.
  2. We contacted Adetokunbo Uko, Regional Treasury Sales Head on the reasons for the numerous unsuccessful bids observed in the customer’s account and she responcted as follows;
  3. i)Gojac Merchant lnt’l Co. Limited is one of the forex demands in the bank.
  4. ii)The customer has request with the bank and was confirmed by Trade operations Group on16/03/2016

iii)          The reason for the delay is due to the scarcity of forex supply in the market.

  1. Treasury Group averred that the delay is occasioned by scarcity of forex as the bank places priority on customers with matured Letter of credit obligations rather on customers sourcing forex for bill for collections.
  2. A review of Oshajare Christopher’s account in the bank depicted  balances of N299,679.09k, N115,752.81K and N1,649.81k as at 01/08/2016.
  3. Conclusion: ‘The reason for the delay in the allocation of forex to the customer, Gojack k Merchant Int’l Co. Limited is because of the scarcity of forex in the foreign exchange market, which is not peculiar to the customer alone. However, Christopher Oshajare demanded for a commission in order to facilitate sales of export export proceeds to the customer.
  4. Recommendation: Christopher Oshajare should be arraigned before the Bank’s Disciplinary Committee (DC) for engaging in activity that amounts to conflict of interest by becoming a middleman between a customer and a third party who is a competitor to the bank. Also, he demanded for gratification from the customer. The offences are gross misconduct with dismissal as applicable sanction.

The claimant was recommended to the disciplinary committee and arraign for the offence of ‘conflict of interest, parallel banking and failure to comply with banks policies and procedure, gross negligence with no loss of income’

The committee report tendered as Exhibit D6 concluded that there is a significant level of compromise on the part of the claimant based on the text message he deliberately sent to the customer from his phone.

This recommendation formed the basis of the claimant dismissal in Exhibit C2.

The claimant position as gathered from his counsel final written address of his counsel is that the allegation against the claimant for which he was made to face disciplinary committee was ‘Protest Against Non-Foreign Exchange Allocation to Our Company Gojack k Merchant Int’I Co. Ltd by your Bank’

In paragraph 4 of the claimant statement of defence the claimant stated that ‘The unceremonious and unjustifiable dismissal of the claimant  from the service of the defendant revolved around the complaint of non-allocation of foreign exchange by one of the customers of the defendant, Gojack k Merchant International Company Ltd (hereinafter simply referred to as “the Company).’ See paragraph 6 of the Witness Statement on Oath also dated 17th August, 2019  

In joining issues with the above deposition the defendant stated in paragraph 4 of the statement of defence that ‘The Defendant denies paragraph 4 of the Statement of Facts and states that the Claimants dismissal was in respect of the Claimant’s non-allocation of foreign exchange to one of the Defendant’s customers, Gojack k Merchant International Company Limited, amongst other violations of the Defendant’s Human Resources Policies & Procedures of December, 2016’

Claimant counsel argued that the claimant could not have been guilty of the allegation as to warrant his dismissal. He argued that it is not in dispute that the claimant was the Relationship Manager of Gojack k Merchant Int’l Company limited, whose account was domiciled at Orile-Coker branch of the defendant and the claimant, was the link between the claimant and the defendant. He argued that the defendant’s Trade Operation and the Treasury Departments are solely in charge of foreign exchange allocation to any customer of the defendant. The decision whether or not to allocate foreign exchange to any customer of the defendant, lies entirely in the hands of the Trade Operation and the Treasury Departments. That the reason for the non allocation of forex to the company was clearly stated in Exhibit D3, D4 and D6. That the complaint was against the defendant and not the claimant. He relied on Exhibit C7 written by the company and duly acknowledged by the defendant which exonerated the claimant.

In the claimant final address also argued that the defence to the wrongful dismissal of the claimant is that the claimant demanded for gratification and indulged in sharp practice as it relates to allocation of foreign exchange to one of the defendant’s customers, Gojack k Merchant International Company Ltd. He argued that from the evidence adduced before the court. as revealed in Exhibit D3 and D4,  it was the  Coker-Orile Branch Head of the Defendant that was mentioned as the one involved in sharp practices as regards the non-allocation of foreign exchange to the Company. He stated that the DW1 during cross examination admitted that the claimant was not the Coker-Orile branch head of the defendant. He argued that it was wrong for the defendant in his final written address to argue that the Internal Audit Group investigation revealed that it was the claimant who was referred in the complain and in Exhibit D4. He argues that documents speak for themselves that Exibit D4 clearly mentioned the ‘branch head of Coker-Orile, Lagos’  as the one complained about by the company. He argued that from the available evidence it was the branch Head of the Coker-Orile and officials of the treasury department of the defendant were the ones involved in the alleged sharp practices and not the claimant as maliciously asserted by the defendant. That it was wrong for the defendant in their address to have asserted that the customer has ‘mistakenly referred to the claimant as the branch head of the bank’.

The claimant counsel further argued in his final written address that as regards the issue of the Diamond Bank account number counsel reproduced the pleadings of the claimant in paragraph 6 to 11 of the statement of facts. He argued that a cursory look at paragraphs 6 to 11 of the statement of defence which denied the paragraphs of the statement of facts will show that the defendant did not specifically  deny the averments in the particulars of facts as required by law. The claimant tendered and relied on Exhibit C6, an SMS print out of conversation between one Madam Idonor Marvel. Counsel stated that the said Diamond Bank Account Number was forwarded to the claimant by one Madam Idonor Marvel, who was the Secretary of the Small & Medium Scale Enterprises (SM E) Unit of the defendant. And the claimant had stated in his evidence that the customer was already discussing with treasury and SME units /departments of the defendant. But curiously the said Marvel ldonor was never invited by the defendant’s Investigative Audit Department or the defendant’s Disciplinary Committee to confirm whether or not she actually forwarded the said Diamond Account number to the claimant. Worst still, she was not even called as a witness by the defendant to say whether or not she gave the said account number to the claimant, despite the fact that she was such a vital witness. Counsel urged the court to rely on the uncontroverted evidence that the Diamond Bank Account number was forwarded to the claimant by Marvel Idonor.

Counsel also argued that the findings and conclusion of the disciplinary committee as stated in the 8th column of Exhibit D6 has no bearing on the infraction alleged to have been committed by the claimant. He argued further that non allocation of Forex to a customer is not a misconduct listed in clause 11.2.5 of Exhibit D2 to warrant dismissal of an employee and that the grounds upon which the defendant purported to dismiss the claimant is not known to the defendant policy hand book. He urged the court to hold that the purported dismissal of the claimant from the services of the defendant was wrongful and grant the reliefs sought by the claimant in this action.

DECISION OF THE COURT.

I have carefully considered the evidence tendered by the parties in this action as well as the argument put forward by counsel in their final written addresses. The question is whether the dismissal of the claimant was justifies under the circumstances revealed by the evidence.

The protest against non-foreign exchange allocation to Gojack Merchant Int’l Ltd. and the infraction complained of as contained in Exhibit D4 and D3 were made against the head Coker- Orile branch of the defendant and the treasury department of the defendant. The petition specifically stated that ‘some of the defendant branch heads if not all, are being pushed by a syndicate group at your treasury office to demand for extra funds to facilitate processing of the FOREX bid’. The content of the above mentioned exhibits speak for themselves. The defendant counsel in his written address has argued that because of the sms messages attached to the petition which carries the phone number of the claimant, it is the claimant that the petition complains about. I do not agree with the defendant counsel argument. First it is not in dispute that the duty to allocate Forex to the defendant was the duty of the defendant (Ecobank) and if a protest about non allocation of Forex is made it can only logically refer to the defendant and not the claimant. The defendant admitted very clearly in Exhibit D5

The Internal Audit report thus:

(a)             We contacted Adetokumbo Uko, Regional Sales Head on the reasons for the numerous un-successful forex bid observed in-the customer’s account (and she responded That the reason for the delay is due to the scarcity of forex supply in the market.

On the state of the above evidence it is the position taken by this court that the complaint of infraction was made against the defendant and not the claimant.

Furthermore, the above stated allegation was based on the sms messages between the author of the petition and Managing Director of Gojack Ltd. with the claimant annexed as Exhibit D3a, b and c.  The messages had the phone numbers of the claimant on it and also the Diamond Bank Account No 0050962540 where the premium of N12/USD$1 was to be paid into. The question is whether the sms communications necessarily made the claimant culpable for any infraction which could lead to his dismissal in Exhibit C2. In other-words, are the reason stated in the letter of dismissal justified having regards to the state of evidence adduced by the defendant in justifying the dismissal?

It is not in dispute that the claimant was the account or relation manager of the defendant customer, Gojack Merchant Int’l Ltd. The defendant admitted this in paragraph 5 of their statement of defence. There is no doubt that as relationship manager of the company, the claimant was the go between and the link between the defendant and the company and communication in that respect is expected under the circumstances. It is also in evidence as stated earlier in this judgment that the defendant was unable to meet the Forex request of the company despite the several times it debited the account of the company. In Exhibit D5 The Internal Audit investigation revealed that the defendant Treasury Group confirmed that the delay is occasioned by scarcity of forex as the bank places priority on customers with matured letters of credit obligation rather than on customers sourcing forex for bill for collection. The claimant pleaded in paragraph 6 to 11 and testified in paragraph 8 to 13 the circumstances that led to his sending the Diamond Bank Account number 0050962540 operated by Luben Global Limited to the defendant customer. It is his testimony that following persistent failure to allocate Forex to the company and the threat to petition the regulatory authorities he was asked to manage the threat and to liaise with one Madam Idonor Marvel the secretary of the defendant SME department. He testified that when the situation could not be remedied by the treasury department of the bank, SME unit of the bank was compelled to seek an alternative source of Forex exchange for the company. That another company with export proceed was located and an agreement reached and the particular of the company and the Diamond Bank account of  Luben Global. Ltd. was sent to him by Idonor Marvel to forward to the Managing Director of Gojack Merchant Int’l Ltd. The claimant tendered Exhibit C6 the sms communication between Idonor Marvel and the claimant in evidence. This document was not objected to by the defendant counsel. Particularly of interest are the entries on page 2 on the 7/8/16. The conversation stated there are;

Sms: Marvel…..sending you account details to credit.

Sms: Luben Global Limited- 0050962540 Diamond Bank.

Chris: Can I give this to hom(sic) to credit directly

Sms: Marvel… if he wants or you want to pay the cheque into her
account

Sms: Marvel…Anyways

During Cross Examination in answer to the question:

Question-look at Exhibit 6, look at the chat on 7/8/2017, can you confirm that one Marvel sent you an account details

Ans- Yes

Question- You also replied can I give this to him to credit directly (referring to the account details)

Ans- In my evidence, I said as a result of pressure from the customer I went to the SMS unit  that is responsible and which recommend inter- bank option to solve the delay. It was on that basis that the SME unit agreed with the customer to source from the secondary market. So the communication from the SME unit to me was forwarded to the customer.

From this evidence the claimant clearly explained how his phone number 08036644085 was used to forward the Diamond Bank Account number of Luben Global Ltd.

The pleading on this issue was never specifically traversed by the defendant. The defendant only stated that he is putting the claimant to strict proof and this is not a proper traverse of facts stated in a pleading. The law is settled that allegation in the statement of facts must be specifically denied or they will be deemed admitted. In the case of ACB Ltd. V. Egbunike & Anor [1988] LPELR-20547(CA) The Court of Appeal while applying the Supreme Court decision in Lewis & Peak V. Akhimien [1976] 7 SC 157, held that, ‘the material averments in pleading must be specifically denied, to raise an issue. This cannot be done by a mere general travers clause in a statement of defence’. The averment in the pleadings along with the evidence recounted above given by the claimant must be taken as establishing the defence to the allegation of infraction for which the claimant was investigated by the defendant. Also the defendant through-out the proceedings did not deny that Idonor Marvel is not their staff neither did they call the said staff who works in the defendant SME department to testify and debunk the evidence of the claimant concerning her involvement in the sending of the Diamond Bank account number to the claimant phone.

The disciplinary committee findings and their conclusion in Exhibit D6, that there is a significant level of compromise on the part of the staff based on the text message he deliberately sent to the customer from his phone is unfounded. It must be pointed out that the evidence adduced by the defendant support the position that there was no compromise on the part of the claimant. In Exhibit D5. the report of the Internal Audit Group, the claimant denied any relationship with Luben Global Ltd. The report of the committee also stated that the corporate search at the CAC on Luben Global Limited (the intended beneficiary of the premium of N972,000 at Diamond Bank) reveal that it was Nwaezeapu Ben and Nwaezeapu Joy who were signatories to the account. Also Exhibit D3h a Diamond Bank  Cheque in the sum of N972,000 was issued in favour of Luben Global Limited by Gojack Merchant Int’l Ltd. Co. There is no evidence that the claimant benefited or was likely to benefit from the said money. Despite this findings the audit committee in the conclusion of their report stated,

Christopher Oshajare should be arraigned before the bank’s Disciplinary Committee (DC) for engaging in activities that amounts to conflict of interest by becoming a middleman between a customer and a third party who is a competitor of the bank. Also, he demanded for gratification from the customer. The offences are gross misconduct with dismissal as applicable sanction.

The committee completely exonerated Idonor marvel and sought to find an escape goat in the claimant. The three officers Mfon Okodi Uko, Adeyinka Adeleke and the Head Internal Audit of the defendant that signed that report are a disgrace to the banking industry. They deliberately ignored the findings of their investigation to embark on a mission to crucify the claimant in this action. It does not appear that the Managing Director of the bank did read the report or if he did, he did not understand what he read before approving same, or he deliberately ignored the clear findings in the report which exonerated the claimant from any wrong doing There appear to be a common and unhealthy practice in the banking sector where junior staff are dismissed in order to cover up malpractices which involve the senior management staffs of banks in Nigeria. This practice must be condemned and should not be allowed to thrive and should be struck down at every opportunity.

I must also state that I have examined Exhibit D2 the Human Resources Policy of the defendant. Clause 11.2.5, list the offences which are considered as gross misconduct. Apart from the offence of conflict of interest which I have held in this judgment that the claimant was not in any way culpable in that respect, the other allegations which the claimant was subjected to disciplinary hearing are not among the offences listed in Exhibit D2 as offences that constitute gross misconduct which attract the disciplinary sanction of dismissal. It is for this reason and other reasons stated in this judgment that this court has come to the conclusion that the dismissal of the claimant vide the letter of dismissal Exhibit D1, C2 and the reason given for the dismissal is unjustifiable. Accordingly, the dismissal of the claimant by the letter dated the 3rd February 2017 is unlawful and of no effect whatsoever. It is therefore set aside.

The claimant in this action upon the order declaring the dismissal of the claimant as wrongful is asking this court to order the payment of his salaries from the 6th February 2017 to the date of this judgment. The claimant was employed vide Exhibit C1 dated 26th October, 2006, The claimant was dismissed from his employment on the 3rd February 2017. The claimant instituted this action on the 17the August, 2018. The letter of termination Exhibit C1 stated that the termination was to be effective from the date written on Exhibit C1,  the computation of the claimant salary must begin from the effective date of dismissal of the claimant. Also the cause of action enured up to the date this action was filed by the claimant. The Supreme Court in case of International Drilling Co. Ltd. V. Ajijala [1976] 2 SC 115at 129 held:

 

In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract.

See also the case of Beckham V. Drake [1849] 2 HL. Cas 579 pg. 607-608.  Nigerian produce Marketing Board V. Adewunmi 1972]11 SC. pg 111at 117.

The defendant counsel has argued that the claimant was properly terminated in accordance with the procedure laid down in the condition of service and therefore the claimant is not entitled to the salaries claimed having not offered any services to the defendant to earn the salary. The defendant counsel has missed the mark in this argument. The claimant here is not complaining about the procedure leading to his unlawful dismissal, of course all administrative procedure including the observance of the rules of fair hearing was followed. But the claimant grouse is that he should not have been subjected to that disciplinary ordeal in the first place because his action did not constitute any infraction for which he was asked to face the disciplinary investigation. This I have already found in this judgment to be case, consequent upon which I have already declared the dismissal to be wrongful and set aside the letter of dismissal Exhibit C2. From the authorities cited above, the law is that for the wrongful dismissal of the claimant, the quantum or measure of damages is what the claimant would have earned if he was not wrongfully dismissed and this must be reckoned up to when claimant brought the action before this court. This is not a case of wrongful termination for breach of the condition of notice to terminate the employment, as argued by the defendant counsel in paragraph 5.46 of his final written address. The defendant cannot blow hot and cool. He cannot assert that the claimant was properly terminated and on another breath argue in the alternative that the claimant is entitled to one month salary in lieu of notice.

Therefore the computation of the claimant salaries should be from the date of termination to the date the claimant instituted this action before the court. This is rightly what he would have earned if the defendant had allowed the employment to continue according to contract. I hereby order the defendant to compute the arrears of salary of the claimant from the 3/2/2017 to the 17/8/2018 and to pay same to the claimant within the next one month. This order is not an order of reinstatement. The law is that in a master servant contract of employment the court cannot make an order of reinstatement. See the case of Osisanya V. Afribank [2007]LPELR-2809 (SC). The defendant having shown a clear intention not to allow the employment relationship to continue, The employment in law is deemed to have been brought to an end today.

The claimant also seeks an order mandating the defendant to immediately write to the Central Bank of Nigeria (CBN), retracting its earlier letter reporting the purported dismissal of the claimant to the CBN and thereafter file a copy of the said letter with this honourable court to ensure compliance. In response to this relief, the defendant counsel has argued that the claimant is not entitled to this relief as there are no facts pleaded in support of the relief. Counsel relied on S. 131 (1) of the Evidence Act to argue that the burden to establish the existence of the facts complained of has not been discharged. What fact is in issue here? It is on record that in Exhibit C2 the letter of dismissal of the claimant, the defendant wrote;

Furthermore in accordance with the requirements of the Central Bank of Nigeria (CBN) this nature of breach/infraction must be reported to the CBN for blacklisting of the staff. Accordingly, the breach/infraction will be reported to the CBN for blacklisting as a result of which you may be barred from future employment in the financial services industry.

This is the fact in dispute. This fact is already in issue before the court. I do not understand what facts need to be pleaded to establish fact contained in a document. The law is that documents speak for themselves. See the case of Kanmode & Anor V. Dino & Ors. [2008] LPELR-8405 (CA).

Having declared that the letter of dismissal of the claimant was unlawful and also having also set aside the said letter of dismissal in this judgment, the implication is that all acts done in respect of Exhibit C2 stands reversed as there is no justification for those acts. This court has the inherent powers even without the prompting of the claimant counsel to make consequential orders as regards the further unlawful acts of the defendant as contained in Exhibit C2. The power to make consequential orders is an inherent powers vested in a court of record the exercise of which has the effect of giving effect to the judgment of the court. In the case of EFCC & Ors V. Philip Odigie [2012] LPELR-15324 (CA). The court of appeal sanctioned this practice when it held:

Perhaps, I should reiterate what I said in respect of the discretionary power of the court to make consequential orders, Senator Dahiru Gossol V. Abubarkar Turare & 2Ors [2012]7 WRN 118 at 117 line 25-47, inter alia: Even if a relief is not specifically asked for, situations have arisen in which the court have allowed consequential orders to be made, where that order is inevitably consequential, necessarily flowing naturally and directly from the substantial order made, then it can be granted without it having been asked for by any of the parties to the suit .Such an order is necessary so as to for instance(a)give effect to the judgment delivered (b)make meaningful an order granted; or (c)put an end to litigation by avoiding future action.

See also the case of Buwanhot V. Buwanhot [2009]16NWLR (pt. 1166) at 22

The argument of the defendant counsel that the claimant ought to have pleaded facts to establish facts already written in a document and his reliance on S. 131 of the Evidence Act is of no moment and must be discountenanced. The order sought for in this relief is justified and ought to be granted by this court. Accordingly, it is hereby ordered that the defendant is to immediately write to the Central Bank of Nigeria (CBN), retracting its earlier letter reporting the purported dismissal of the claimant to the CBN and thereafter file a copy of the said letter with this honourable court to ensure compliance within two weeks from the date of this judgement or risk the consequences of disobedience of this order.

In relief No 5, the claimant claims the sum of N1,000.000 as general damages for the defendant’s act of wrongful dismissal. The claimant has been able to prove that his dismissal was unlawful. The unlawful act of the defendant and the ordeal the claimant has gone through, no doubt has cause some in-conveniences to the claimant. The claimant is entitled to damages for the unlawful dismissal of the claimant. The defendant shall pay the sum of N1.000,000.00k as damages to the claimant.

On the whole this suit succeeds. Judgement is hereby entered in favour of the claimant against the defendant in the following terms:

(1)             The dismissal of the claimant by the letter dated the 3rd February 2017 is unlawful and of no effect whatsoever. It is therefore set aside.

(2)             The defendant is hereby ordered to compute the arrears of salary of the claimant from the 3/2/2017 to the 17/8/2018 and to pay same to the claimant within the next one month.

(3)             The defendant is hereby ordered to immediately write to the Central Bank of Nigeria (CBN), to retract its earlier letter reporting the purported dismissal of the claimant to the CBN and thereafter file a copy of the said letter in this honourable court to ensure compliance. This order should be complied within two weeks from the date of this judgement or risk the consequences of disobedience of this order.

(4)             The claimant is entitled to damages for the unlawful dismissal of the claimant. The defendant shall pay the sum of N1,000,000.00k as damages to the claimant.

Judgment is entered accordingly.

    ___________________________________

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

admin

Website:

Related Story