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National Industrial Court

Mr. Sunny Nwokwoukwu -VS- STANBIC IBTC Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

ACTING PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

 

 

DATE: NOVEMBER 19, 2019                                      SUIT NO. NICN/ABJ/171/2018

 

BETWEEN

Mr Sunday Nwokeukwu-                             Claimant

 

AND

Stanbic IBTC Bank Plc                                          –            Defendant

 

REPRESENTATION

Lawrence Erewele, with U. K. Epuchie, Mrs Cynthia Ovuarume and D. A. Seidu, for the claimant.

Ms Faith Ozurumba, Ms Chijioke Ezeibe, Ms Chiamaka Obiadi and E. C. Ohaegbule (in order of appearance), for the defendant.

 

JUDGMENT

INTRODUCTION

  1. By a complaint and statement of facts filed on 19th June 2018, the claimant claimed against the defendant for:
  • A declaration that the purported dismissal of the claimant by the defendant while charge number CMC/AB/CR/2014 was pending is wrongful, null and ab-initio the reasons for the dismissal being the subject matter in the said charge No CMC/AB/CR/2014 and same having been determined in favour of the claimant.
  • An order of this Honourable Court setting aside the purported dismissal of the claimant by the defendant for being wrongful and unlawful.
  • An order of this Honourable Court directing the defendants to immediately re-instate the claimant with all the promotions, and pay him all his financial entitlements i.e. N347,880.33 (Three Hundred and Forty-Seven Thousand,Eight Hundred and Eighty Naira,Thirty-Three Kobo) monthly, Fringe benefits and other entitlement effective from 23 March, 2015 till the claimant is duly re-instated and his appointment properly determined.

 

IN THE ALTERNATIVE

 

  • A declaration that the purported dismissal of the claimant by the defendant while charge number CMC/AB/CR/45/2014 was pending is wrongful, unlawful, null and ab-initio the reasons for the dismissal being the subject matter in the said charge No CMC/AB/CR/45/2014 and same having been determined in favour of the claimant.
  • An order of this Honourable Court setting aside the purported dismissal of the claimant by the defendant for being wrongful and unlawful.
  • An order of this Honourable Court directing the defendant to immediately pay the claimant the sum of N347,880.33 (Three Hundred and Forty-Seven Thousand,Eight Hundred and Eighty Naira,Thirty-Three Kobo) monthly being the claimant’s monthly salary from the 23rd day of March 2015 monthly till the judgment is delivered in this suit and the judgment sum liquidated.
  • An order of this Honourable Court directing the defendant to pay to the claimant the sum of N10,000,000.00 (Ten million Naira) being damages for the malicious prosecution of the claimant at the Magistrate Court Zone 6 Abuja in Charge No CR/45/2014 without jurisdiction.
  • An order of this Honourable Court directing the defendant to pay to the claimant the sum of N30,000,000.00 (Thirty million Naira) being General damage for the torture, hardship, mental torture caused the claimant by the defendant as well as damaging the claimant’s integrity. The claimant having been wrongfully dismissed since 23rd of March, 2015.
  • 10% (10 percent) post judgment interest sum of the entire judgment sum.
  • N5,000,000.00 (Five Million Naira) being the cost of prosecuting this suit.

 

  1. The defendant entered formal appearance and filed its defence processes to which the claimant filed a reply.

 

  1. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C14, to which the defendant indicated that it will be objecting to Exhibits C6, C10, C11 and C12. For the defendant, Olalekan Obada testified as DW and tendered Exhibits D3, D4, D5, D6, D7, D8 and D9, Exhibits D1 and D2 having been tendered through CW. The claimant, however, indicated that he will be objecting to the admissibility of Exhibit D1. All reasons for objecting to the admissibility of any document was saved for the final written addresses.

 

  1. At the close of trial, the defendant filed its final written address on 23rd September 2019 and the reply on points of law on 15th October 2019. The claimant’s final written address was filed on 4th October 2019.

 

THE CASE BEFORE THE COURT

  1. The claimant’s case is that he was duly employed by the defendant (Exhibts C1, C2 and C3) and that he worked at the defendant’s branch at Gwagwalada, Abuja (Exhibit C4) until March 2015 when he was wrongfully and unlawfully dismissed by the defendant (Exhibit C9). That in December 2014, he was accused by the defendant alongside one Adedayo Ogunleye of allegedly compromising his password which facilitated the unauthorized and fraudulent transfer of the sums of N33,445, 000.00 (Thirty-Three Million, Four Hundred and Forty-Five Thousand Naira)only from the account of Rain Oil Nigeria Limited and the sum of N2,965,000.00 (Two Million, Nine Hundred and Sixty-Five Thousand Naira)only from the account of Padbod Breweries. Both accounts were domiciled in the defendant’s bank and owned by the aforementioned customers.

 

  1. That the defendant reported the fraud to the Nigeria Police Force, Federal Capital Territory Command consequent upon which the claimant was arrested, detained for 8 days and arraigned before the Federal Capital Territory Magistrate Court Zone 6 on a First Information Report (FIR) number CMC/AB/CR/45/2014 (Exhibit C6). The claimant pleaded not guilty to the charges and was released on 28/1/2015. The claimant spent his 2014 Christmas in Keffi prison. That when he was released from prison custody, the matter proceeded to trial. The defendant was represented by Mr Olalekan Obada. The said Olalekan Obada gave evidence for the prosecution and at the close of the prosecution’s case, the claimant’s made a no case submission. Upon a considered ruling delivered on the 10th of November 2017, the claimant was discharged and acquitted of all the allegations (Exhibits C1l and C12).

 

  1. That while he was facing the criminal trial at the Magistrate Court, the defendant dismissed him (Exhibit C9) without paying him his entitlement. To the claimant, the reasons which the defendant stated in the letter of dismissal were the same issues which he was facing criminal trial for at the Federal Capital Territory Magistrate Court Zone 6 in Charge number CMC/AB/CR/45/2014.

 

  1. The defendant in their defence avers that on December 5, 2014, there was a fraudulent transfer of funds of two customers totaling N36,410,000. From the investigation of the Bank’s Financial Crimes Control Unit (FCC), the claimant and other individuals were indicted in the fraudulent transfers as his official laptop and log in profiles were used in effecting the fraudulent transfers. The report also showed that the claimant allowed unauthorised individuals into the Bank’s premises after the close of business.

 

  1. The Bank further avers that the claimant refused to attend the disciplinary session even after two invitations, and in response to the claimant’scounsel’s letter on the matter being subjudice, the claimant had been informed of the Bank’s right to discipline erring staff in line with its handbook for gross misconduct, without need to await the decision of the Court on the criminal proceedings. As such, the dismissal was lawful and the claimant is not entitled to any emolument.

 

  1. The defendant also denied the allegation of malicious prosecution, holding that a report was made to the Police whose responsibility it was to determine whether or not the claimant will be charged to Court.

 

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant started off with its objection to the admissibility of Exhibits C6 (First Information Report from AMAC), C10 (CTC of Police Investigation Report), C11 (Records of Proceedings from Chief Magistrates Court) and C12 (Ruling on No Case Submission). The defendant’s objection is predicated on the fact that these are public documents with laid down statutory provisions on the procedure for certification, which said certification is mandatory to render the secondary copy of the documents admissible. That in the event that a party fails to comply with these procedure, the documents in question becomes inadmissible, citing Agbaje v. Coker [2016] LPELR-40157(CA) on the meaning of certification. That for certification to be valid, the document has to amongst other requirements, be certified by an officer in custody of same, referring toAchu v. Okonkwo [2016] LPELR-41015(CA) as to the process for the valid certification of documents; which certification clothes the public document with authenticity and credibility, and hence probative value. That in the instant case, the certification falls short of the sacrosanct provisions of the Evidence Act 2011 given that the document was certified by a Registrar of the High Court of the Federal Capital Territory Abuja as opposed to the Registrar of the Magistrate Court where the matter was prosecuted and the documents tendered and admitted in evidence and who is in custody of the documents sought to be certified.Accordingly, that the documents having emanated from an officer who is not in custody renders them inadmissible in accordance with the Evidence Act as the procedure for certification as contained in the law is not a mere window dressing but mandatory provisions aimed at guaranteeing the authenticity of the secondary evidence of documents furnished in place of the originals. The defendant then urged the Court to hold that these documents fall short of the requirement of the Evidence Act and to accordingly expunge same from its records; or attach no probative value to the documents as they did not emanate from proper custody and thus cannot enjoy the presumption of regularity ordinarily accruing to them by law had they been properly certified.

 

  1. The defendant then submitted a sole issue for consideration by this Court, to wit: whether the claimant has established, on the preponderance of evidence led before this Honourable Court, that he is entitled to the reliefs sought in his statement of claim. To the defendant, the claimant has not in any way established that he is entitled to the reliefs sought herein; and that the claimant has not discharged the evidential burden placed on him by law in proof of all alleged facts.Therefore, the claims of the claimant fail and the reliefs sought are liable to be dismissed. That the law is that parties and the court are bound by the pleadings, referring to Aremu v. Adetoro[2007] 16 NWLR (Pt. 1060) 244 at 261 andOkwejiminor v. Gbakeji[2008] 5 NWLR (Pt. 1079) 172 at 208. It is, therefore, the defendant’s submission that the reliefs sought before this Court, ought to guide the Court in determining the issues in controversy, as any issue that does not flow from the reliefs sought cannot be the real issue in controversy.

 

  1. In arguing the sole issue raised, the defendant raised two sub-issues, which are:
  • Whether the dismissal of the claimant by the defendant while Charge No. CMC1/AB/CR/45/2014 was pending is unlawful.
  • Whether this Honourable Court can grant reliefs 2 and 3 of the main reliefs and reliefs 2 – 7 of the alternative reliefs as presently contained in the claimant’s complaint.

 

  1. On sub-issue (a), the defendant submitted that it is trite that in any civil proceedings, the onus is generally on the plaintiff to plead both the facts and also lead cogent and credible evidence to prove his case before judgment can be given in his favour, citing Olusanya v. Osinleye[2013] 7 NWLR (Pt. 1367) 148 at 171. That a Court does not grant declaration of right either in default or on admissions, without taking evidence and being satisfied that the evidence led is credible. That the plaintiff having by his complaint sought declaratory reliefs is thus expected to present material facts before this Court in order to be entitled to those reliefs, referring toNwaogu v. Atuma[2003] 11 NWLR (Pt. 1364) 117 at 141 – 142. To the defendant, the plaintiff has not led cogent evidence or placed material facts before this Court to entitle him to the grant of the reliefs sought. That where an employee has alleged dismissal was unlawful, the burden lies solely on him to prove the terms and conditions of his employment, citingJohn Holt v. Nzeribe [2018] LPELR-44943(CA), Angel Spinning & Dyeing Ltd v. Ajah[2000] 13 NWLR (Pt. 685) 532 and UBA Plcv. Oranuba[2013] LPELR-20692(CA). That the burden is, therefore, on the claimant, not only to place before the Court the terms of his employment with the defendant, but must equally show the manner in which those terms were contravened, thereby making his dismissal wrongful.

 

  1. The defendant went on that the contract of employment between the parties creates a master-servant relationship, which byAjuzi v. FBN Plc[2016] LPELR-40459 can be terminated by the master at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract of employment. That the defendant reserved the right to dismiss the claimant from its employment under the law, once the conditions in the terms of employment are met and the principles of fair hearing are adhered to, citingPatrick Ziideeh v. Rivers State Civil Service Commission [2007] LPELR-3544(SC), Avre v. NIPOST[2014] LPELR-22629(CA) and Adekunle v UBA Plc [20161 LPELR-41124(CA). Thus, that in order to determine whether the dismissal in the instant case was unlawful, the Court will examine the terms and conditions of employment of the claimant contained in the letter dated November 6, 2008 (Exhibit C1) as well as the defendant’s Disciplinary Policies (Exhibits D3 – D5), and ascertain whether or not the dismissal was done in line with the terms of employment and extant laws particularly the rules on fair hearing.

 

  1. That going by the said terms as contained in Exhibits C1, D3 and D5 which are clearly outlined and binding on both parties, there is a provision governing disciplinary procedure and dismissal of an employee from the defendant.Specifically, Exhibit D3 stipulates the category of misconducts which the defendant can punish by dismissal. Under clause 16.1 of Exhibit D3, one class of misconduct is:

Conversion, misapplication or misappropriation of the assets of the Group or customers. Withdrawal, Conversion or Transfer from active or dormant account; posting without appropriate authorization.

 

Any other offence/conduct which in the opinion of management warrants a dismissal.

That it is, therefore, not in contention that the misconduct (for which the claimant was invited to the disciplinary session) which was defrauding the Bank through gross negligence in the compromise of his password was contemplated under Exhibit D3.

 

  1. The defendant continued that it is trite that a dismissal is only unlawful if the procedure for it is not complied with and if the principles of fair hearing were not observed, citingNdili v. Akinsumade & ors[2000] LPELR-6910(CA). That the material question at this point then becomes: whether the defendant conformed to the procedure as laid down in the policy and whether in any event, the defendant observed the principles of fair hearing in conducting the disciplinary enquiry which led to the eventual dismissal of the claimant. That under Exhibit D5 particularly pages 4 – 8, the procedure for conducting the disciplinary enquiry was clearly spelt out. Part of the provisions include adequate time to prepare a defence, allowance to call witnesses, allowance to object to the constitution of the panel amongst others. That a perusal of Exhibit C7, which is the memo inviting the claimant to the Disciplinary Committee, reveals that the claimants rights in this regard which are in tandem with the guidelines in Exhibit D5 were also spelt out. These provisions, as the Court will find, were made in a manner that guarantees the fundamental right of the claimant to fair hearing. That having complied with this procedure,the defendant did not in any way breach the conditions of employment neither did the defendant breach the claimant’s right to fair hearing, urging the Court to so hold. In the circumstance, that there the claimant’s dismissal cannot be adjudged unlawful. This is moreso as the core requirement of fair hearing is that an opportunity to be fairly heard is given. And aclaimant who fails to take advantage of this opportunity cannot thereafter complain that his rights have been breached, citing UBA Plc&anor v. Ugoenyi & anor[2011] LPELR-5065(CA) and Diga v. Tony [2013] LPELR-20768(CA). That where an employee, as in this case the claimant, fails to take advantage of the opportunity presented by an employer, he cannot be heard to complain, urging the Court to so hold.

 

  1. It is the defendant’s position that the claimant did not dispute the fact that the defendant conformed to the procedure in the Bank’s Policy; neither did the claimant argue that fair hearing was not observed. That parties are bound by their pleadings; as suchsince by the claimant’s pleadings, the foregoing issues have not been raised, the Court should hold that the defendant’s position on this point is uncontroverted and ought to be acted on, citingMuomah v. Enterprise Bank Ltd[2015] LPELR-24832(CA).

 

  1. On the claimant’s position that the dismissal, which occurred while the claimant was standing trial, is unlawful as the matter is already sub judice, the defendant submitted that this position is unfounded in law and cannot be sustained. That the law is settled that a disciplinary committee constituted by an employer is not required to await the outcome of a criminal action in Court before proceeding with its internal disciplinary procedure mechanism, citing UBA v. Musa[2006] CA/J/165/2006, P.C. Mike Eze v. Spring Bank Plc [2011] LPELR-2892(SC) and Ajuzi v. First Bank of Nig Plc [2016] LPELR-40459(CA). That in the instant case, the defendant was well within its rights to set up a disciplinary committee in line with its Policies, which the claimant was bound by upon signing the contract of employment. That the defendant took steps to invite the claimant to a properly constituted panel in line with their disciplinary policies whilst the claimant repeatedly and deliberately refused to heed to the invitation of the Bank. Again, that it is important to stress the irrelevance of the ruling on no case submission relied on by the claimant at the Magistrate Court as the criminal action had no bearing in law to the disciplinary procedure which is a contractual right inuring to the defendant. That the claimant cannot, therefore, shift the consequence of his willful refusal to attend the disciplinary sitting to the defendant, urging the Court to so hold.

 

  1. In addition, that a question was put to the claimant under cross-examination regarding the invitation to the disciplinary committee sent to him by the defendant, which the claimant admitted receiving. That the claimant also admitted he received Exhibit D1, sequel to which his lawyer sent a response (Exhibit C8) indicating that the claimant will not attend the session.The defendant sent yet another invitation (Exhibit D2), taking the liberty to inform the claimant of the position of the law on internal disciplinary procedures vis-a-vis criminal trial. That this evidence elicited from the claimant under cross-examination established that the claimant was at all times material to this suit, aware of the implications of the willful refusal to avail himself of the opportunity for fair hearing provided by the defendant. That the law is trite that facts admitted need no further proof, referring to Ajibade v. State [2012] LPELR-15531(SC) andS. A. Uredi v. Jacob O. Dada [1988] LPELR-3425(SC). That having given the claimant repeated opportunities, the defendant via Exhibit C9 further communicated its findings to the claimant to the effect that he was found to be in breach of the defendant’s policies and procedures, a position already supported by Exhibit D6.It is thus the defendant’s position that the claimant’s contention that both the disciplinary process and the court action cannot proceed concurrently and as such any relief emanating from this erroneous position is bound to fail is not supported by law, urging the Court to so hold and dismiss the reliefs of the claimant.

 

  1. On sub-rule (b) i.e. whether this Court can grant reliefs 2 and 3 of the main reliefs and reliefs 2 – 7 of the alternative reliefs, it is the defendant’s contention that the claimant’s reliefs 2 and 3 of the main relief and reliefs 2-7 of the alternative reliefs are consequential in nature, as the success or otherwise of those reliefs are predicated on the success of the declarative relief sought by the claimant in his relief 1.The defendant stated further that these reliefs are consequential because they draw from the declaratory relief and cannot stand on their own. Therefore, the said reliefs must suffer the same fate with the declaratory relief sought by the claimant, which is dismissal, citing Chief Ikechi Emenike v. PDP [2012] LPELR-7802 (SC). The defendant had earlier argued that the claimant has not discharged the burden placed on him to entitle him to the declaratory relief sought. Therefore, that since the claimant is unable to prove that he was unlawfully dismissed from his employment, all other reliefs must also fail as there will be no basis upon which the Court can grant same, urging the Court to so hold and dismiss the claims of the claimant.

 

  1. The defendant, however, proceeded to address each relief in case the Court holds that the other reliefs are independent of the declaratory relief sought in reliefs 1 of the main and alternative reliefs.

 

  1. Onrelief 2 i.e. an order of this Court setting aside the purported dismissal of the claimant by the defendant for being wrongful and unlawful, the defendant submitted that it is not such that can be granted by this Court. To the defendant, this relief can only be granted where the dismissal itself is unlawful. That in a situation where dismissal is in line with the contractual documents and the principles of fair hearing are observed, this relief becomes unavailable, referring to Keystone Bank Plc v. Yiggon[2013] LPELR-22131(CA),and sections 131, 132 and 133(1) of the Evidence Act 2011. In any event, that the remedy of unlawful dismissal is not even available to the claimant given that the employment under consideration is a master-servant relationship, not one with a statutory flavour, referring the Court to New Nigeria Newspapers Ltd v. Atoyebi[2013] LPELR-21489(CA). The defendant then urged this relief be dismissed as it has not been proved.

 

  1. On relief 3 i.e. an order of this Court directing the defendants to immediately reinstate the claimant with all the promotions, and pay him all his financial entitlements i.e. N347,880.33 monthly, Fringe benefits and other entitlement effective from March 23, 2015 till the claimant is duly reinstated and his appointment properly determined, the defendant submitted that the claimant is not entitled to this relief. That assuming, although this is not the case, that the claimant was unlawfully dismissed from the defendant’s employ, it is again settled that the relief of reinstatement is unavailable under a master-servant relationship, citingOdibo v. First Bank [2018] LPELR-46628(CA) and UBN Ltd v. Okenwa[1994] LPELR-23178(CA). It is thus the defendant’s submission that the claimant cannot be reinstated, moreso over a purported allegation of unlawful dismissal which he has failed to prove. That this is also in keeping with the principle that the Court cannot impose an employee on an unwilling employer and that an employee who acted against the interest of his employer cannot be reinstated, referring to Ziideeh v. Rivers State Civil Service Commission [2007] LPELR-3544(SC) andFBN Plc v. Bam[2010] LPELR-4160(CA), and urging the Court to so hold.

 

  1. On relief 2 of the alternative reliefs i.e. an order setting aside the dismissal for being wrongful and unlawful, the defendant submitted that like other reliefs sought by the claimant, the claimant has failed to prove his entitlement to the said relief. The defendant then reiterated its earlier position as to the main reliefs, urging the Court to dismiss this relief for want of merit.

 

  1. On relief 3 of the alternative reliefs i.e. an order directing the defendant to pay the claimant N347,880.33 monthly from March 23, 2015 until judgment is delivered and the judgment sum liquidated, the defendant submitted that the claimant is labouring under a misconception as it relates to the reliefs available in an action for wrongful dismissal under a master-servant relationship. That it is trite that in an action for wrongful dismissal under a master-servant relationship, the claimant’s remedy in the event that he establishes wrongful dismissal lies only in damages.Accordingly, the claimant cannot be reinstated neither can he be entitled to salaries or other entitlements from any period after he was dismissed. That this is clearly because dismissal under a master-servant relationship cannot be null and void as to render its effects nugatory. Rather, the dismissal takes effect from the date same was communicated to the claimant, in this case from March 23, 2015; and the claimant can only be compensated in damages if it is found that the defendant did not follow the procedure stipulated in the conditions of service or that the rules of fair hearing have been breached, referring to UTC Nigeria Ltd v. Peters [2009] LPELR-8426(CA) and Texaco Nigeria Plc v. Kehinde [2000] LPELR10000(CA). That in consideration of the foregoing, the claimant’s claim for salaries and entitlements from March 23, 2015 which was when his dismissal became effective till date lacks any factual or legal basis and cannot, therefore, be granted, urging the Court to so hold.

 

  1. On relief 4 i.e. an order for the sum of N10,000,000.00 for malicious prosecution at the Magistrate Court, the defendant submitted that the claimant did not lead any cogent evidence at the trial to substantiate his relief for malicious prosecution, citingM.I. Nigeria Ltd v. Harry [2009] LPELR-4445(CA) on the principles relating to malicious prosecution. Referring to Ogbonna v. Ogbonna & anor [2014] LPELR-22308(CA),that for a claimant to establish the claim of malicious prosecution, the following conditions must be met by the plaintiff:

(1) the prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff;

(2) termination of the prosecution proceedings was in the plaintiff’s favor;

(3) no reasonable cause for the prosecution;

(4) evidence of malice on the prosecutor’s part; and

(5) the plaintiff suffered actual damage.

 

  1. To the defendant, in the instant case, there is no evidence adduced to show that the defendant went beyond supplying information to the Police to being instrumental in actually setting the law in motion against the claimant. That the claimant has also not shown how the report made by the defendant to the Police and the overall conduct of the defendant in this regard was actuated by malice. Indeed, that Exhibit C10 reveals that sequel to the investigation conducted by the Police, it found that the fraudulent transfer of the sum of N35,000, 000 being monies belonging to the defendant’s customers were done using the posting right/login password of the “defendant” and another ex-staff, Mr. Sunny Nwokeukwu. That it was based on this finding and recommendation that the Police charged the claimant to Court. That the claim for malicious prosecution in this regard is thus baseless, unfounded and is liable to be discountenanced, citing Balogun v. Amubikahun[1989] LPELR-725(SC). That as the claimant has failed to establish the claims of malicious prosecution in line with the guideline provided by the law, he cannot be entitled to any damages arising from the alleged malicious prosecution, urging the Court to so hold.

 

  1. On relief 5 i.e. an order for the payment of N30 Million as general damages for torture, hardship, mental torture as well as damaging the claimant’s integrity, the claimant having been wrongfully dismissed since 23 March 2015, it is the defendant’s position that general damages flow from a recognized breach which has been occasioned to the claimant. That the law is settled that the object of the award of general damages is to put the claimant in the position he would have been if the contract was rightly performed, citing Gari v. Seirafina (Nig) Ltd [2008] 2 NWLR (Pt. 1070) 1 at 22 and Afolabi v. Ola [2016] LPELR-40186(CA). That it follows that general damages are only awarded where there is a breach; and that a claimant like the claimant in this instant case, who has not established breach of contract cannot be entitled to damages, urging the Court to so hold.

 

  1. On relief 6 i.e. 10% post judgment interest sum of the entire judgment sum, the defendant submitted that the claimant is not entitled to this relief. That this is because post judgment interest is an ancillary relief which has to be predicated on the main relief. That given the claimant’s failure to prove his main claim, he cannot thus be entitled to the post judgment interest as sought, citing Ashaka v. Nwachukwu [2013] LPELR-20272(CA) on the principles guiding post judgment interest. That as the claimant is not entitled to the principal reliefs sought, the issue of post judgment interest does not arise, urging the Court to so hold.

 

  1. On relief 7 i.e. N5 Millions cost of prosecuting this suit, the defendant submitted that it is trite that award of cost is discretionary. However, that the party seeking an award of cost must place cogent facts before the Court to enable the Court award the cost in its favour, citingAkinbobola v. Plisson Fisco Nigeria Ltd[1991] 1 NWLR (Pt. 167) 270. That in claiming an award of cost, the party claiming can either incorporate it as a relief, as done by the claimant in this instant suit, or make it orally in open court as a consequential relief. When it is made a specific relief as done by the claimant in this case, it must be specifically pleaded and proved, citing Hadejia Jama’are River Basin Development Authority v. Chimande (Nig) Ltd[2016] LPELR-40202(CA). That having perused the claimant’s claim as well as the complaint,nowhere in the whole gamut of these documents was the issue of cost pleaded. That a thorough examination of the record of proceedings in this suit also reveals that no evidence or proof was proffered by the claimant in support of his claim for the award of cost in the sum of N5 Million. That it is trite that a Court cannot grant a claim not proved or supported by evidence, citingGreen v. Green [1987] 3 NWLR (Pt. 61) 480, Opia v. Ibru[1992] 3 NWLR (Pt. 231) 658 andAbenga v. Benue State Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 621. That the claimant has again failed to prove or support the relief claimed with any evidence. Therefore, that the Court should dismiss this relief and order that parties should bear their respective costs. In conclusion, the defendant urged the Court to find in favour of all the submissions of the defendant.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant started off with facts, which to him the parties are ad idem i.e.

(1) That the claimant was an employee of the defendant.

(2) That the claimant was accused of compromising his password which led to financial fraud in the defendant’s bank consequent upon which the claimant was arrested, detained in Keffi prison, tried at Zone 6 Magistrate Court Abuja and thereafter was discharge and acquitted.

(3) That the claimant was dismissed vide Exhibit C9 and that the defendant dismissed the claimant when the claimant was still facing the criminal charge leveled against him by the defendant.

(4) The defendant did not also controvert the claimant’s financial entitlement pleaded in paragraphs 7 of statement of fact upon which evidence was led in paragraph 8 of the witness statement on oath.

 

  1. The claimant then proceeded to reply to the defendant’s objection as to the admissibility of Exhibits C6, C10, C11 and C12, which objection was on the grounds that the documents were not certified by an officer in custody of the said documents. To the claimant, the present position of the law, which is in accordance with the Ogbunyinya v. Okudo[1979] 1 All NLR 105 SC and Torti v. Ukpabi[1984] 1 SCNLR 214 at 227 -228 is that a document that is admissible having satisfied the requirement of admissibility does not become inadmissible merely because it did not proceed from proper custody. That the issue of proper custody does not affect admissibility. That once a document is admissible in law, then the issue as to proper custody cannot make it inadmissible. That for a document to be admissible that document has to be relevant to the issues in contention, it has to be pleaded and must be in the form allowed by law for it to be admissible, citingDagash v. Bulama[2004] 14 NWLR (Pt. 892) 144 at 204. That the said Exhibits C6, C10, C11 and C12 are all relevant to the issues in contention in that they tend to show that the plaintiff was tried before Federal Capital Territory Magistrate Court Zone 6 over the same reasons he was dismissed. Furthermore, they show that he was subsequently discharged and acquitted.That these documents were pleaded in paragraphs 23, 25 and 26 of the statement of fact; andthe defendant admitted these facts in paragraph 21, 24, 25 and 27 of the statement of defence. That DW under cross-examination even confirmed the said Exhibits C10, C11 and C12 as the correct documents and record of proceedings from the Federal Capital Territory Magistrate Court. These documents were all properly certified by one Mohammed Abdullahi, who is a Registrar, fees were paid and the date of certification was included.That the certification satisfied the provisions of section 104 of theEvidence Act. That the defendant’s argument is that it was the FCT Magistrate Court Zone 6 that tried the plaintiff but the certification stamp has “High Court of the FCT”.

 

  1. The claimant then urged the Court to discountenance this argument as same is based on technicality and misleading. The claimant also urged the Court to take judicial notice of the fact that the FCT Magistrate Court is supervised by the High Court of FCT and that staff of the High Court are posted to any of its sections or department which include posting Registrars to Magistrate Court. That the defendant has not denied the fact that Mohammed Abdullahi is the Registrar of the Magistrate Court that tried the plaintiff.That DW under cross-examination confirmed that the plaintiff was tried at the said FCT Magistrate Court at Zone 6 Abuja; and DW identified the said Exhibits C6, C10, C11 and C 12 as documents that emanated from the Zone 6 Magistrate Court FCT. That DW was also the witness that testified for the defendant at the Magistrate Court. Under cross-examination DW did not state that Mohammed Abdullahi is not the Registrar of the said Magistrate Court. That the defendant did not tender any other proceedings to counter the Exhibits C6, C10, C111 and C 12. It is thus the claimant’s submission that the defendant mis-applied the case laws it referred to, as they are on the same page with the Supreme Court decision in Torti v. Ukpabi (supra).

 

  1. The defendant had urged the Court not to attach probative value to the said Exhibits C6, C10, C11 and C12 because they did not emanate from a proper custody. That since the only ground upon which the defendant has objected to the admissibility of Exhibits C6, C10, C11 and C12 (being one of grounds of proper custody) has been taken care of by the decision in Torti v. Ukpabi (supra) it, therefore, means that there is no justiciable ground in law for this Court not to admit the said Exhibits C6, C10, C11 and C12, urging the Court to so hold and admit the said exhibits.

 

  1. The claimant then submitted one issues for determination i.e. whether the claimant has proved his case on the preponderance of evidence to entitle him to the reliefs sought. He answered in the affirmative. He then pointed out that he has main and alternative relief. Reliefs 1 and 2 in the main reliefs are the same in the alternative reliefs. The 3rd relief on the main relief is to re-instate the plaintiff as a staff of the defendant. That it is when the Court finds relief 3 of the main relief not appropriate, that it will be urged to grant reliefs 3, 4, 5, 6 and 7 of the alternative reliefs.

 

  1. To the claimant, by relief 1, he is urging the Court to declare his dismissal wrongful and unlawful in that he was dismissed while he was still undergoing criminal trial over the same grounds for which he was dismissed. He referred to paragraphs 1,2,3, 4,5 and 6 of his statement of fact, paragraphs 1, 2, 3, 4,5, 6 and 7 of his witness statement on oath of 19th June 2018 and Exhibits C1, C2, C3, C4 and C5 as sufficiently proof that he was duly employed by the defendant. That these facts were not controverted, urging that they be taken as correct and true, citing Uket v. FRN[2008] All FWLR (Pt. 411) at 923 andAlagbe v. Abimbola[1978] 2 SC 39.

 

  1. The claimant went on thatsince he has successfully established that he was properly employed, the next task is for him to prove that the dismissal was wrongful and unlawful.That the ground upon which he contends that the dismissal was wrongful and unlawful is that he was dismissed while he was still standing trial over the same ground upon which he was discharge and acquitted by the Magistrate Court Federal Capital Territory in Exhibit C6; referring to paragraphs 12, 13, 14, 15, 16, 19, 20, 21 and 22 of the statement of fact and paragraphs 14, 15, 16, 18, 19, 20 and 28 of the witness statement on oath as well as Exhibit C9(the dismissal letter), which in paragraph 1 reads:

Please be informed of the management’s decision to dismiss you from the Bank’s employment with effect from 23rd March, 2015 as a result of your breach of the Bank’s policies and procedure. In particular it has been noted that you compromised your password, and that this action facilitated a fraud committed against the Bank.

That from Exhibit C9, it will be seen that the reason why the defendant dismissed the claimant was because the claimant was alleged to have compromised his password which facilitated a fraudulent act that was committed against the bank. That a community reading of Exhibits C6, C9, C10 and paragraph 2 of Exhibit C11 will reveal that the ground upon which the defendant dismissed the clamant was the same ground upon which the claimant was tried in the criminal trial, which is that theclaimant compromised his password which facilitated the fraudulent withdrawal of funds from the defendant’s bank. That the ground for both the criminal trial and the dismissal all flow from one and the same transaction.

 

  1. That under cross-examination, DW attempted to decipher the grounds of the criminal trial from the grounds for the dismissal by saying that the issues which the defendant reported to the FCT Police Command and which formed the criminal allegation at the Magistrate Court was the act of the claimant compromising his password, which led to the fraudulent withdrawal of funds from the customers of the defendant while the grounds upon which the claimant was dismissed were based on on gross misconduct. However, that the defendant did not state the nature of the gross misconduct or the offenses that constituted the gross misconduct. The claimant accordingly urged the Court to disregard the evidence of DW in that regard as under section 128(1) of the Evidence Act, oral evidence cannot be admitted to contradict, alter, add to or vary a contract or document unless such evidence falls within any of the matters that may be proved by such oral evidence, citing Hon. John O. Fasogbon v. Prince Adewole A. Layade & ors [1999] 11 NWLR (Pt. 628) 489 – 490. That section 128(1)(a) – (e) of the Evidence Act only permits parole evidence which will not be inconsistent with the terms of the relevant contract or document, citing Macaulay v. NAL Merchant Bank Ltd[1990] NWLR (Pt. 144) 183 at 311 and Fortune International Bank Plc v. Pegasus Trading[2004] 4 NWLR (Pt. 863) 369. That in the present case, the oral evidence of DW that the claimant was dismissed based on gross-misconduct contradicts the content of Exhibits C6, C9 and C11; as such, same is inadmissible in the circumstance. That this piece of evidence further contradicts the same DW evidence under examination in chief as deposed to in paragraph 16 of his witness statement on oath. The said paragraph 16 of the DWI witness statement on oath reads thus:

…By the memo, the claimant was to explain his role in respect of the perpetrated fraud as stated below:

(a) Gross misconduct in that you compromised your password which was used to defraud the bank to the tune of N36,410,000.00.

(b) Gross misconduct in that by your action above you exposed the Bank to financial, legal and reputational risks.

Furthermore, that the oral evidence of DW in this regard is best an afterthought and the law as espoused inOghenevweta v.The State[1982] 1-2 SC andNdid v.The State[2007] 5 SC 175 is that statements made afterthought should not be treated as credible statements. The claimant then urged the Court not to regard DW as a witness of truth and to so hold and disregard his oral evidencein this regard.

 

  1. The claimant went on that it was wrong and unlawful for the defendant to have dismissed him over the same facts upon which he was being tried at Federal Capital Territory Magistrate Court in CMC/AB/CR/45/2014.That more importantly was that he was discharged and acquitted of the alleged offence, which acquittal is an indication that he was innocent of the allegation made against him by the defendant. That by Exhibit C6, the trial of the claimant commenced on the 16/12/2014 and ended on 10th November 2017 vide a ruling on no case submission.Meanwhile,that the claimant was dismissed on 23rd March 2015 when he was still standing his criminal trial. Accordingly, that the correct position is that he was dismissed on grounds of criminal offences which were the same offences as those for which he was tried in Exhibit C6. That it was his dismissal while he was still standing a criminal trial that has made the dismissal wrongful and unlawful, urging the Court to so hold.

 

  1. To the claimant, it is trite law pursuant to section 174 of the 1999 Constitution that it is only a competent court of law that can try a person for a criminal offence.That Daniel v. FRN[2014] 8 NWLR (Pt. 1410) and Okike v. LPDC[2005] 15 NWLR (Pt. 949) 471 stressed the position of the law that it is only a court of law that can try a person over any criminal allegation. That this was what led the defendant to report the alleged crime to the Nigeria Police (FCT Command). But rather than wait for the court to pronounce on the alleged offence, the defendant pre-judged the court and dismissed the claimant based on the same offence which was the subject matter before the Magistrate Court in Exhibit C6.

 

  1. The claimant went on that in a bid to justify its action the defendant in paragraphs 5, 6, 7, 8, 9, 12 and 19 of the statement of defence averred and gave evidence in paragraphs 6, 7, 8, 9, 10, 13, 14, 15, 16 and 19 of the witness statement on oath that it invited the claimant to its disciplinary panel but that the claimant refused to appear. That the defendant stated that it thereafter caused its Financial Crimes Control Unit (FCC) to conduct a forensic investigation into the alleged crime and the unit found the claimant guilty. The defendant stated further that by their disciplinary policy, which according to the defendant the claimant was aware of, the resultant effect was outright dismissal and not disengagement. The defendant tendered the disciplinary policy documents in evidence and the documents were admitted and marked Exhibits D3, D4 and D5 respectively.Exhibit D3 is titled “Group Human Capital Disciplinary Process and Sanctions Policy”. Exhibit D4 is titled “Group Physical Security”. Exhibit D5 is titled “Stanbic IBTC Human Capital Disciplinary Enquiry Operating Manual”. The claimant in paragraph 1, 2, 3, 4, 5, 6, 8 and 16 of his reply to statement of defence denied the above averments and gave evidence in support in paragraphs 3, 4, 5, 6, 7, 8 and 11 of his witness statement on oath of 12th October 2018.

 

  1. The claimant then urgedthe Court to discountenance the said Exhibits D3, D4 and D5 and not to place evidential value on same because they are not “valid policy documents” that can bind the claimant. That under cross-examination, DW stated that for any of the defendant’s policy documents to be valid it must be signed by the Chief Executive Officer of the Bank. That Exhibits D3, D4 and D5 which are supposed policy documents of the defendants, meant to guide and bind the claimant are not signed;they are, therefore, invalid and so are inapplicable in the circumstance and not binding on the claimant.

 

  1. That another ground for which the said Exhibits D3, D4 and D5 should be declared invalid is because they did not form part of the terms and conditions of the contract of employment between the defendant and the claimant. That they were never known to the claimant from the commencement of the contract of employment till the time the claimant was unlawfully dismissed. That he in paragraphs 1 and 2 of his reply to his statement of defence and paragraphs 3,4, 5 and 6 of his additional witness statement on oath stated that he saw the documents for the first time when the defendant frontloaded them in this suit. Ironically, thatExhibit C1 did not make reference to Exhibits D3, D4 and D5 or any other document that will bind parties in their going concern. That the action of the defendant at trial and the evidence of DW corroborated the evidence of CW in this regard.That the defendant had attempted totender the said Exhibits D3, D4 and D5 in its soft copy vide a “disc”. It was upon the intervention of this Court that the defendant vide a motion printed the documents and frontloaded them. Meanwhile,Exhibit C1 did not refer the claimant to any “disc” or other document that was intended to bind them. To the claimant then, it will be against the rule of natural justice, good conscience and equity for him to now be bound by a supposed policy document which he just became aware of at trial. That the said documents were never tendered at the Magistrate Court during the criminal trial.

 

  1. The claimant, however, conceded that while an employer and an employee are in the going concern, the employer can formulate policies that were not in the original terms and condition of employment. But that such policies should as a matter of complying with the rule of natural justice be brought to the knowledge of the employee especially if such policy when violated will amount to gross misconduct. That he cannot be bound by the policy in a document he was never aware of or executed. That his relationship with the defendant is contractual in nature;and in contract there is always offer and acceptance. That it is only what a party accepts that will bind that party. That there are situations where a letter of offer will refer the offeree to other documents not specified in the main letter of offer. In such a situation, the offeree will be bound by subsequent policy documents. That in this case, he accepted Exhibit C1 as the terms and condition of employment. This he did by signing the letter of offer which according to the defendant “constituted the principal terms of employment of contract between the claimant and the defendant”; referring to paragraph 5 of the 4th page of Exhibit C1 which reads as follows:

This offer constitutes the principal terms of the employment contract between you and the bank. In your own interests, you should read it carefully. If you have any queries, or need help, contact Oladepo Tolu at oladipose@Stanbic.Com.

That paragraph 6 reads:

This offer is only subject to satisfactory…and referrals certificate from previous employers.

That it was never indicated that there were other policy or secondary documents that will bind the claimant. That there is no evidence that the said policy was brought to the claimant’s attention after he started work; as such, it will be against the rule of nature tonow bind him with policy documents he was never aware of either at commencement or in the course of the employment, urging the Court to hold that the document that contains the terms and conditions of employment is Exhibit C1 and nothing more.

 

  1. The claimant further submitted that the defendant’s invitation for him to appear before its disciplinary and investigating unit over these fraudulent transactions when he was still undergoing criminal trial over the same issues before the Federal Capital Territory Magistrate Court in Exhibit C6 was not borne out of good faith;it was meant to window-dress the entire unlawful process. That it is also not correct that the offence which the defendant was investigating and which it wanted him to answer was different from the offence for which the claimant was standing trial for vide Exhibit C6.That DW’s deposition in paragraph 15 of his witness statement on oath (which was why the claimant was invited to face the defendant disciplinary unit) is the same with the content of Exhibits C6, C9 and C11. That what the defendant wanted the claimant to answer was the offence “that the claimant compromised his password which led to the fraudulent transfer of a customer’s fund. My Lord Exhibit C6 contains the same offence. The claimant then urged the Court to hold that by the provision of section 174 of the 1999 Constitution and the cases of Daniel v. FRN[2014] 8 NWLR (Pt. 1410) and Okike v. LPDC[2005] 15 NWLR (Pt. 949) 471 earlier cited thedefendant lacked the authority and locus to try the claimant over the said offence being a criminal offence.

 

  1. The claimant continued that it is not in dispute that the nature of employment between him and the defendant does not have statutory flavor as such it can only be regulated by the terms and conditions of the employment which evidence in this case has revealed is stated only in the claimant’s letter of employment (Exhibits C1and C2). That by the nature of the employment,the defendant can terminate the claimant’s employment in accordance with the terms of employment and pay him his terminal benefits.But where the defendant has dismissed the claimant on the ground of a criminal offence, particularly when the claimant is being tried for the same criminal offence, the law is that the defendant has to wait for the Court to determine the culpability of the claimant before it can dismiss the claimant, citing Eze v. Spring Bank Plc[2012]Vol. 20 WRN at 30 where theSupreme Court held as follows: “When the act of gross misconduct has criminal content similar to the one as in the case of Denloye and like cases mentioned herein that the courts will first pronounce on the acts of gross-misconduct one way or the other before an employer embarks on the act of dismissing an employee”. That this principle of law applies to a situation akin to the fact of this case where the case against the claimant though termed “gross misconduct” has criminal content. That this Court presided over by His Lordship, Hon. Justice M.N. Esowe held the same opinion at page 38 of the printed judgment in SuitNo. NICN/AB/244.2012 (unreported) between Innocent Igila &ors v. China Civil Engineering and Construction Company (CCECCO Nigeria Ltd. That in that case the defendant dismissed the claimants while the claimants were still facing criminal trial in a Magistrate Court, Life Camp, Federal Capital Territory Abuja. His Lordship held as follows:

To me, before the defendant can rightfully or correctly dismiss the claimants on these allegations, they should have been given opportunity to defend themselves or must have been convicted by a court over these offences. The allegations of dismissal of the claimants, were anchored on criminal offences. The claimants were arrested and charged to court to answer to the crimes allege by the defendants, and before the claimant were discharged, they were already dismissed by the defendants, the defendants could not wait till the conclusion of the matter before the Magistrate Court, neither did they call the claimants to defend themselves. To me this is wrongful, and I so hold.

That this position of the law has not changed. The claimant then urged the Court to hold that in view of the evidence before the Court the dismissal of the claimant was wrongful and unlawful and grant claimant’s relief  (1).

 

  1. To the claimant, the defendant’s contention is that the claimant has not discharged the evidential burden placed on him by law in proof of all the alleged facts; and thatthe defendant argued this position under 2 sub-issues.On the 1st sub-issue, that the defendant referred this Court to a plethora of cases to support its argument that “wrongful and unlawful dismissal” from employment occurs when an employer did not dismiss the employee in accordance with the procedures for dismissal as provided in the terms and conditions of service governing the employment, referring the Court to Exhibits C1, D3, D4 and D5 as the documents containing the terms of employment with which the claimant was employed with.

 

  1. It is the submission of the claimant that the grounds upon which the claimant claims that his dismissal was unlawful and wrongful is as follows:

(1) That he was dismissed while he was still facing trial in charge No. CMU/AB/CR/45/2017 at the Magistrate Court Zone 6, FCT, Abuja over a complaint that was made against him by the defendant.

(2) That the same offence for which he was tried, discharged and acquitted was the same offence for which he was dismissed by the defendant.

That form this, it is crystal clear that the ground being canvassed by the defendant as the ground to connote unlawful and wrongful dismissal is different from the ground being relied upon by the claimant, relying once againP.C. Mike Eze v. Spring Bank Plc (supra). That the defendant did not provide an inch of a contrary position to the claimant’s position. That the cases cited by the defendant to the effect that it is only when an employer did not comply with the procedure laid down in the terms and conditions of employment in dismissing an employee that constitutes unlawful and wrongful dismissal is inapplicable in the present circumstance as that is not the case of the claimant.

 

  1. The claimant end on that assuming without conceding that the only ground that will arise before a dismissal will be termed “unlawful and wrongful” is as canvassed by the defendant, then his dismissal was unlawful and wrongful given that the only valid and reliable document that has the terms and conditions of his employment is Exhibit C1. That Exhibits D3, D4 and D5 were proven under the cross examination of DW not to be valid documents same having not been signed by the defendant’s Chief Executive Officer as earlier argued.

 

  1. The claimant agreed that before an employer (in this case the defendant) will dismiss the claimant, the claimant must not be tried before a court of law for gross-misconduct, citingAvre v. NIPOST(supra). That this principle accords with the situation where an employer desires to dismiss an employee in accordance with the terms and condition of employment without the employer initiating a criminal trial/process against the complainant. In other words, that the only duty which the employer has is to make sure that the terms and conditions binding both parties are complied with. That in the instant scenario, the employee is not meant to face criminal trial before the dismissal. He may face criminal trial after the dismissal. That when the employer breaches the terms and conditions for dismissal, it amounts to unlawful and wrongful dismissal in one way. That this was what the courts in the plethora of cases cited by the defendant meant.

 

  1. The claimant, however, asked as to what happens when the employer rushes to court over what it terms gross misconduct and initiates criminal trial by his complaint; and whether the employer can dismiss the employee on the same gross misconduct that the employee is facing trial for. That this was what the court was faced with in the case of P.C. Eze v. Spring Bank Plc when it held that it will amount to an unlawful and wrongful dismissal for an employer to dismiss an employer while the employer is facing criminal trial over the same criminal allegation upon which he is dismissed. That the courts have remained consistent in this position of the law, urging the Court to follow same, as holding otherwise will amount to employers resorting to self-help and undermining the adjudicatory powers of the court.That where parties have submitted their disputes to the court, they should wait for the court’s decision. That it would have been different if the defendant had gone ahead to dismiss the claimant without initiating the criminal trial but since the defendant decided to initiate criminal trial before the claimant was allegedly dismissed, then the defendant ought to have waited for the Magistrate Court to deliver judgment before it proceeded to dismiss the claimant. The claimant then urged the Court to discountenance the argument of the defendant in this regard as the case law cited is inapplicable to the present circumstance.

 

  1. The claimant proceeded that the 2nd relief is for this Court to set aside the purported dismissal of the claimant for being wrongful and unlawful. That the 2nd relief is premised on the 1st relief; as such,if this Court finds from the evidence so far led that the dismissal of the claimant by the defendant was wrong and unlawful, then it should set aside the wrongful and unlawful dismissal.

 

  1. The 3rd relief is for an order of this Court directing the defendant to pay the claimant his entitlement being N347,880.33(Three Hundred and Forty-Seven Thousand, Eight Hundred and Eighty Naira, Thirty-Three Kobo) monthly from 23rd March 2015 till the claimant is duly re-instated and his appointment is properly determined. To the claimant, he specifically pleaded his financial entitlement in paragraph 7 of his statement of facts and gave evidence in support in paragraph 8 of his witness statement on oath. That the defendant did not controvert the figures stated in paragraph 7 of statement of facts. That the defendant under cross-examination did not also controvert the figures stated in paragraph 8 of the witness statement on oath. That the law is that facts pleaded which are not controverted should be deemed admitted and such facts must be taken as true and correct, citingUket v. FRN (supra) andAlagbe v. Abimbola (supra).That to further prove these figures, the claimant tendered his pay-slip (Exhibit C5) in evidence, urging the Court to take the uncontroverted facts pleaded in paragraph 7 of the statement of facts, paragraph 8 of CW’s witness statement on oath and Exhibit C5 as correct and true and grant relief 3.

 

  1. The defendant had argued that in a master/servant relationship, the claimant’s remedy in the event that he establishes wrongful dismissal lies only in damages, relying on UTC Nigeria Ltd v. Peters (supra). To the claimant, the principle of law in UTC Nigeria Ltd v. Peters (supra) would apply where the dismissal is not in accordance with the terms and conditions of employment. That in that case the employee is not meant to go through the trauma of facing criminal trial.But that where, as in the instant case, the claimant was meant to face criminal trial and later discharged and acquitted over the offence for which he was dismissed, one of the remedies is for reinstatement, particularly when the court has declared the dismissal unlawful and wrongful.That stigma of dismissal will no longer be in the curriculum vitae of the claimant.That the relief to reinstate the claimant is not to foist a servant on an unwilling master but for justice to have been seen to be done.

 

  1. That in the event that the Court is reluctant to order reinstatement, the Court should order amongst other reliefs that the defendant should replace the dismissal with termination. This is because with the word “dismissal” the claimant is stigmatized and practically impossible to secure jobs in other organizations. But if it is “termination”, then the claimant will be able to secure a job elsewhere.That though the claimant’s reliefs did not expressly ask for “termination”, this Court can by way of consequential order direct that the term “dismissal” be converted to “termination” that is after the dismissal has been set aside. That the discharge and acquittal of the claimant automatically cleanses the claimant of all criminal allegations which should entitle the claimant to all his financial benefits.

 

  1. The claimant went on that his alternative reliefs will only come to fruition if this Court finds that his dismissal was wrongful, unlawful and liable to be paid his financial entitlements but not to be reinstated. That by the reliefs, if the claimant will be reinstated, then the entitlements will be paid up till the time the claimant is reinstated and his employment properly determined. But if this Court finds that the claimant will not be reinstated, then his alternative relief 3 will be for the defendant to continue to pay the claimant his financial entitlement monthly pending when the judgment sum is liquidated. Consequently, his reliefs 4, 5 and 6 of the alternative reliefs will follow.

 

  1. Relief 4 is for an order of this Court directing the defendant to pay to the claimant the sum of N10,000,000.00 being damages for the malicious prosecution of the claimant by the defendant. That for the claimant to succeed in proving that he was maliciously prosecuted by the defendant, the claimant has the onus to prove the following:

(1) That the defendant prosecuted him in the sense that he set the law in motion against him.

(2) That the plaintiff was discharged and acquitted.

(3) That the prosecution was without reasonable and probable cause.

(4) That the prosecution was actuated by malice by the defendants against the plaintiff.

 

  1. On the first element, the claimant submitted that he has led credible evidence to prove that it was the defendant that set the law in motion against him. That he in paragraphs 9, 10, 12, 21, 22, 23, 24 and 25 averred to the facts that it was the defendant that handed him over to the Nigeria Police, Federal Capital Territory Command, which thereafter charged him to the Magistrate Court vide Exhibit C6 and that the police conducted investigation and submitted same to defendant which the defendant tendered in evidence in this case as Exhibit C10. That the defendant replied to the above paragraph in paragraphs 10, 11 and 25 of their statement of defence. The summary of their defence is that the defendant being a corporate body has the duty in law to report the claimant’s conduct to the Police which it did. That it was the Police that investigated and prosecuted the claimant.The grouse of the claimant is that despite the Police Report i.e.Exhibit C10 and the defendant’sExhibit D6 i.e. Group Financial Crime Control Forensic Investigation Report, which exonerated him of the allegation of compromising his password, the defendant still proceeded and prosecuted him on the allegation of him compromising his password which allegedly led to the fraud in the defendant’s bank.That the Police had in Exhibit C6 concluded that there was no case of compromise of password made against the claimant. That the defendant at page 2 of Exhibit D6 found that the system used for posting the fraudulent transaction was that of one Adedayo Ogunleye and not that of the claimant. Furthermore, that the postings were made between 7:00pm and 8:55pm.Meanwhile both the bank and the claimant closed at about 6:11pm on that 5/12/2014, referring to pages 16 and 18 of Exhibit C11 and page 2 of Exhibit D6. That despite these exonerations, the defendant still at page 3 of Exhibit D6 directed that the claimant should be prosecuted and the claimant was actually prosecuted until he was discharged and acquitted by the court. That it is on this basis that the claimant argues that it was the defendant that set the law in motion against the claimant. That by Exhibit C12, he was discharged and acquitted of the alleged offence for which he was maliciously tried.

 

  1. The defendant had referred the Court to Texaco Nigeria Plc v. Kehinde (supra) to argue that the claimant has not led evidence in support of his claim for malicious prosecution. To the claimant, interestingly in that case the Court of Appeal held that malice will arise if where at the end of investigations of a complaint by the Police no case was revealed but the complainant insisted that the Police must charge the plaintiff to court. That this was exactly what transpired in this case. That the Police in FCT Command had reported that the claimant has no case to answer yet the defendant by their conduct insisted that the claimant should be prosecuted, urging the Court to hold that the claimant was maliciously prosecuted.

 

  1. The claimant continued that from the evidence on record, it was not his computer system that was used to effect the fraudulent transfer. That he had closed for the day with the bank before the alleged fraudulent transfer was effected. That it is also evident that such transfer from a customer’s account cannot be made outside the banking hall. That the account which the monies were transferred into were traced and some of the monies recovered. But none of these accounts or the account holder was traced to the claimant. To the claimant then, his prosecution was without reasonable and probable cause, urging the Court to so hold. That from the evidence on record, it is obvious that his prosecution was actuated by malice and that was why the defendant dismissed him even while his trial was still pending at the Magistrate Court.

 

  1. Reliefs 5 and 7 are seeking the orders of this court for the defendant to pay the claimant N30,000,000.00 (Thirty Million Naira) and N5,000,000.00 (Five Million Naira) as damages for his wrongful and unlawful dismissal and cost of prosecuting this suit respectively. That in paragraphs 28, 30 and 36 of the statement of fact, he averred to what he has suffered owing to the wrongful and unlawful dismissal particularly that it has to do with financial integrity capable of depriving him job elsewhere. That he gave evidence in support of these facts in paragraphs 29, 32 and 35 of the witness statement on oath. That these averments were not controverted, urging the Court to take the facts as the true and correct facts and grant reliefs 5 and 7 of the claim. Relying on section 19(D) of the National Industrial (NIC) Act 2006, the claimant submitted that the circumstances of this case where the claimant was dismissed even when none of the independent investigating institutions i.e. police and court have found him guilty of compromising his password is one that will persuade the Court to exercise its discretion in favor of the claimant by granting reliefs 5 and 7.

 

  1. The defendant had argued that the claimant is not entitled to the damages claimed because damages can only accrue where there is a breach of contract. That since the claimant has not been able to prove any breach of contract, he is therefore not entitled to damages of any sort. To the claimant, this is not the correct position of the law. That the law as expressed in the Latin maxim,Ubi jus Ibi remedium, is where there is a wrong, there is a remedy. That in the instant case, the defendant committed a wrong against the claimant; as such remedy in the form of damages should naturally accrue, urgingthe Court to grant the damages sought.In conclusion, the claimant urged the Court to grant all his reliefs as he has been able to lead credible evidence to support his claim.

 

THE DEFENDANT’S REPLY ON POINTS OF LAW

  1. In replying on points of law, the defendant submitted that on the claimant’s response to the objection raised as to the admissibility of Exhibits C6, C10, C1l and C12, it is crucial to note that the case of Torti v. Ukpabi copiously cited by the claimant did not make reference to the document under consideration being a public document. That while it is generally trite that for a document to be generally admissible, it has to relevant, pleaded and admissible under the law, the components of admissibility as it relates to public documents are clearly defined underthe Evidence Act and by case law, relying on sections 102 to 105 of the Evidence Act 2011. Accordingly, that the claimant has failed to comply with the conditions for admissibility of public documents and the referenced exhibits are, therefore, liable to be expunged from the Court’s records. Also, that the argument on judicial notice cannot avail the claimant as the entire gamut of section 122 of the Evidence Act does not enjoin the Court to take judicial notice of the High Court exercising supervisory powers over the Magistrate Court as to justify a situation where an official of the High Court can validly certify a document emanating from the Magistrate Court. That in terms of administration, both the High Court and the Magistrate Court have well defined jurisdiction and sphere of operations and it does not thus hold water to argue that an official of the High Court can validly certify a document emanating from the Magistrate Court. Furthermore, that the insistence on this requirement does not amount to insistence on technicality, citingEmmanuel v. Umana & ors (no citation is given).

 

  1. The defendant then reiterated that the lawfulness or otherwise of a dismissal or termination under an employment contract is solely dependent on the terms of the said contract and the rules of fair hearing, such that when the conditions of service have been complied with, the law will not allow an employee to import extraneous reasons to substantiate a tenuous allegation of unlawful breach of contract. In this regard, it is our position that the terms of contract between parties were fully complied with.In addition, that the claimant did not at any time contend that due procedure enshrined in the contract of employment were not followed as their entire case rested on the issue of dismissal while a criminal action was pending. Therefore, that the defendant has established that the terms of contract were duly followed and any dismissal done in line with the terms of contract cannot be deemed unlawful, urging the Court to so hold.

 

  1. Furthermore, that the ruling in P. C. Mike Ezev. Spring Bank Plc[2011] LPELR-2892(SC) is clear. That in that case, it was stressed that except where a contract of employment clearly states otherwise, the master who sees that the action of the servant is based on fraudulent or dishonest acts can summarily dismiss him without waiting to report to the police and wait for the conclusion of a subsequent criminal trial.

 

  1. With respect to the claimant’s position on the evidential value to be placed on Exhibits D3 to D5, the defendant submitted that the Court is only guided by its record. In this regard, that the evidence of DW only sought to make reference to the practice of the defendant in appending signatures to policy documents. However, it is the defendant’s position that a document speaks for itself; as such, oral evidence is not permissible to vary or modify the contents of a document. Thus, once a document has passed the admissibility test, it is only the Court, upon a proper consideration of all the facts and circumstances of the case, that can determine the probative value to be assigned to the said document.

 

  1. That as the Court will find, the defendant as an employer under a master-servant relationship is well within their rights to draw up conditions if service applicable to its employee. Accordingly, the claimant’s purported obliviousness of these conditions does not affect the defendant’s right in this regard including the right to carry out disciplinary procedure based on its policy in which the principles of fair hearing were fully enshrined, urging the Court to so hold. That assuming this is not the case and Exhibits D3 to D5 are not in existence, the material question is whether an employer under a master-servant relationship has powers to discipline and consequently dismiss an employee for gross misconduct. The defendant answered in the affirmative and stated that such right indeed exists. That the major requirement of the law is that the principles of fair hearing are adhered to. That the defendant showed adherence to this principle and all evidence in this regard was not controverted by the claimant.Again, that facts not controverted are deemed admitted. More importantly, that the claimant did not make out any issue of fair hearing in his pleadings which he is bound by. That it is thus crystal clear that the claimant admits indeed the defendant’s compliance with fair hearing.

 

  1. On the claimant’s submission urging the Court to reinstate him on the ground that he was discharged and acquitted, the defendant submitted again that this prayer is bound to fail as the law does not recognize any instance where reinstatement is available under a master and servant relationship. That the claimant seems to be acutely aware of this as no single authority was cited in support of his position that reinstatement is available in a master-servant relationship.

 

  1. That the claimant also failed to clearly distinguish between the case of UTC v. Peter and the instant case as it is clear that in both cases, the Courts were called upon to interpret the contract of employment towards determining whether dismissal is lawful or not, urging the Court to so hold. The defendant urged the Court not to place reliance on Suit No. NICN/ABJ/244.2012 (unreported) between Innocent Igila & ors v. China Civil Engineering and Construction Company (CCECCO) Nigeria Ltdcited by the claimant as being an unreported case, it is expected practice for the claimant to furnish the certified true copy of thejudgment to the Court and counsel on the other side to afford the opportunity to peruse the said judgement and possibly distinguish it from the instant case. That this requirement was not compiled with, urging the Court to discountenance any submission in this regard. The defendant also urged the Court not to countenance any submission urging the Court to grant the remedy of replacing dismissal with termination given that this remedy was not sought in the course of trial; neither was any evidence led to substantiate same. That it is trite that parties are bound by their pleadings and the address of Counsel cannot take the peace of evidence as same is only meant to guide the Court, urging the Court to so hold.In conclusion, the defendant urged the Court to discountenance the tenuous arguments contained in the claimant’s final written address and to dismiss the claimant’s case with substantial cost.

 

COURT’S DECISION

  1. I have carefully considered the processes filed and the submissions of the parties. I start off with some preliminary matters noticeable in the final written addresses of the parties. First, contrary to Order 45 Rule 2(1) of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017), which enjoins that a written address shall be typed-written with 14 font size with double spacing format, the defendant’s written address offended these provisions in that it was not type-written with 14 font size, nor was it double line spacing. What this means is that the 31-paged written address of the defendant clearly went beyond the 35-paged limit sanctioned under Order 45 Rule 2(2) of the Rules.

 

  1. Secondly, the defendant in paragraph 6.33 of its written address referred to the unreported case of UBA v. Musa [2006] CA/J/165/2006 but did not send to the Court the certified true copy (CTC) of it as enjoined by Order 45 Rule 3(1) of the NICN Rules 2017. The defendant would in paragraph 2.0.15 of its reply on points of law complain about the claimant not furnishing it and the Court of the CTC of the unreported case of Innocent Igila & ors v. China Civil Engineering and Construction Company (CCECCO) Nigeria Ltd cited and relied on by the claimant. The claimant later sent in the CTC of the case. This is aside from the citation of cases without the citation such as Emmanuel v. Umana in paragraph 4.7 of the defendant’s written address.

 

  1. Thirdly, same Order 45 Rule 2(2) of the NICN Rules 2017 enjoins that a written address shall be set out in paragraphs and numbered serially. A look at the claimant’s written address will show that the claimant has two paragraphs 4.0 at pages 4 and 8 of his written address. He then has three paragraphs 4.1. Two of them are at page 5, while the third is at page 9. He has paragraph 4.2 at both pages 2 and 10; paragraphs 4.3 and 4.4 at both pages 6 and 11; paragraphs 4.5 and 4.6 at both pages 7 and 13; and paragraph 4.7 at both pages 8 and 14.

 

  1. By Order 45 Rule 3(2) of the NICN Rules 2017, failure to comply with Rules 2 and 3(1) of Order 45 may render the written address incompetent. I could readily visit the written addresses of the parties with this sanction but chose not to in the interest of justice.

 

  1. I now turn to the issue of the admissibility of some of the documents objected to by especially the defendant. The defendant hadobjected to the admissibility of ExhibitsC6 (First Information Report from AMAC), C10 (CTC of Police Investigation Report), C11 (Records of Proceedings from Chief Magistrates Court) and C12 (Ruling on No Case Submission) on the ground that they had invalid certification being public documents. These documents are certified, only that the defendant argues that they are not certified by the appropriate authority. The defendant is not arguing that they do not exist. Only that they are invalidly certified. I see this as a clear case for the application of section 12 of the National Industrial Court (NIC) Act 2006, which permits this Court, in the interest of justice, to depart from the Evidence Act. Though not cited by the defendant, I am not unaware of SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013, the judgment of which was delivered on 21st December 2016, a case in dealing with the issue of admissibility of public documents held that section 12(2) of the NIC Act cannot operate to encumber the provisions of the Evidence Act 2011 since the Evidence Act 2011 is a later Act to the NIC Act 2006. However, SEC v. Abilo Ubobosois distinguishable on a number of grounds chief amongst which is section 4(2)(b) of the Interpretation Act Cap I23 LFN 2004, to the effect that where an enactment is repealed and another enactment is substituted for it, any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. This provision was not brought to the attention of the Court of Appeal in SEC v. Abilo Uboboso. Also not pointed out to the Court of Appeal is the fact that section 12(2) of the NIC Act 2006 is not delimited by time or date; it uses the phrase “Evidence Act”, not “Evidence Act 1990 or 2004”. In any event, section 3 of the Evidence Act 2011 provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”. A fortiori, if another legislation makes any evidence inadmissible, the intention of the legislature in that regard must be respected. In other words, section 3 must be read to mean nothing in this Act shall prejudice the admissibility or otherwise i.e. inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria. The NIC Act 2006 is an Act validly in force in Nigeria. Section 12 is thus a provision validly in force. I do not accordingly see merit in the defendant’s objection to Exhibits C6, C10, C11 and C12. They remain admitted. The only issue left is the weight to be attached to each of them. I so hold.

 

  1. To the claimant, because Exhibits D3, D4 and D5, which are supposed policy documents of the defendants, meant to guide and bind the claimant, are not signed, they are invalid and so are inapplicable in this case. In paragraph 38 of Mrs Roseline Ekeng v. International Energy Insurance Plc unreported Suit No. NICN/LA/122/2016, the judgment of which was delivered on 18th June 2019, this Court held thus:

…conditions of service are most often not signed, or even dated in the manner canvassed by the defendant. Employees are also not required to sign conditions of service. In other words, the applicability of conditions of service or staff handbooks is not dependent on their being dated, or signed by either the employer and/or employee…

The law is that an employer has the right to change the conditions of service.And Mbachu v. AIRBDA[2006] 14 NWLR (Pt. 1000) 691 SC, for instance, held that an employer can at his discretion prune the schedule of duties of an employee; and the employee cannot preclude the employer from doing so. I do not accordingly see any merit in the objection of the claimant to Exhibits D3, D4 and D5. They remain admitted. The only issue left is the weight to be attached to each of them. I so hold.

 

  1. The claimant explained his case thus. That he has main and alternative reliefs. Reliefs 1 and 2 in the main reliefs are the same in the alternative reliefs. The 3rd of the main reliefs is to re-instate him as a staff of the defendant. That it is when the Court finds relief 3 of the main reliefs not appropriate, that it will be urged to grant reliefs 3, 4, 5, 6 and 7 of the alternative reliefs. Now, the claimant’s case is that he was dismissed while he was standing criminal trial in respect of same criminal facts even when his employer, the defendant, could not await the verdict of the criminal trial, which at the end was resolved in his favour. In other words, he can only be dismissed if in the criminal trial he was found guilty since the facts of misconduct and crime were one and the same. The claimant also stressed that the defendant ought to have awaited the outcome of the criminal trial before any talk of dismissal can be looked into; even at this, only if the claimant is found criminally guilty. The claimant accordingly placed great reliance on a decision of this Court by Her Ladyship, Hon. Justice M.N. Esowe in Innocent Igila &ors v. China Civil Engineering and Construction Company (CCECCO Nigeria Ltd unreported SuitNo. NICN/AB/244.2012, the judgment of which was delivered on 31st October 2016. The claimant quoted a passage from the judgment upon which he relied. For ease of reference, I will re-quote the said passage. It runs thus:

To me, before the defendant can rightfully or correctly dismiss the claimants on these allegations, they should have been given opportunity to defend themselves or must have been convicted by a court over these offences. The allegations of dismissal of the claimants, were anchored on criminal offences. The claimants were arrested and charged to court to answer to the crimes allege by the defendants, and before the claimant were discharged, they were already dismissed by the defendants, the defendants could not wait till the conclusion of the matter before the Magistrate Court, neither did they call the claimants to defend themselves. To me this is wrongful, and I so hold.

 

  1. I do not think that the claimant understood the import of this passage. Her Ladyship in saying that “before the defendant can rightfully or correctly dismiss the claimants on these allegations, they should have been given opportunity to defend themselves or must have been convicted by a court over these offences” and then concluding that “the defendants could not wait till the conclusion of the matter before the Magistrate Court, neither did they call the claimants to defend themselves”, could only mean that any of two things is allowed an employer faced with the scenario of the instant claimant: to give the claimant a hearing; or allow the criminal trial come to its logical conclusion. The evidence before this Court, which I agree with, is that the claimant was invited to a disciplinary hearing, but he refused to honour the invitation. Under cross-examination, the claimant as CW acknowledged that he was invited to attend the disciplinary session in respect of acts of gross misconduct detailed in the memo of Feb. 13, 2015 (Exhibit C7) but that he did not attend because his matter was in Court then. He denied being informed that in the event of his failing to attend the disciplinary session the Bank could take necessary action in line with its policies. The claimant as CW was quite specific that even after Exhibits D1 and D2, he did not attend the disciplinary hearing as his matter was in court. Here, the claimant wrongly assumed that the criminal trial coming to an end is the only option opened to an employee, hence his refusal to honor the invitations to face the disciplinary hearing. Fair hearing is about opportunity today. See Ziideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1 and Imonikhe v. Unity Bank Plc [2011] LPELR-1503(SC); [2011] 12 NWLR (Pt. 1262) 624 SC. Once the claimant refused to take up the opportunity offered by the defendant, he has only himself to blame. The law today is that an employee need not await for the outcome of a criminal trial before taking disciplinary measures against an employee; so long as the employee is given fair hearing.

 

  1. The Supreme Court in Arinze v. FBN Ltd [2004] 12 NWLR (Pt. 888) 663 held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. To the Court, it is, therefore, erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT [2008] 5 NWLR (Pt. 1081) 604 CA, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In fact, AG, Kwara State v. Ojulari [2007] 1 NWLR (Pt. 1016) 551 CA held that the prosecution of an employee for gross misconduct before a court of law is not a sine qua non to the exercise of the power of summary dismissal by an employer; it depends on the circumstances of each case.

 

  1. In thus refusing to honour the invitation of the defendant to face disciplinary hearing on the excuse that his case was before a criminal court, I find and hold that the claimant was given opportunity, which opportunity he wasted by refusing to use. It is not open to the claimant to now complain that his dismissal must await the outcome of the criminal trial.

 

  1. Since, by the Supreme Court inGabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, “a claim is circumscribed by the reliefs claimed”, the claimant’s case must be circumscribed by the reliefs he claims. By his own explanation, his main claims are reliefs (1) and (2), which incidentally are the same as per his main and ancillary reliefs. For ease of reference, I reproduce them:

(1) A declaration that the purported dismissal of the claimant by the defendant while charge number CMC/AB/CR/2014 was pending is wrongful, null and ab-initio the reasons for the dismissal being the subject matter in the said charge No CMC/AB/CR/2014 and same having been determined in favour of the claimant.

(1) An order of this Honourable Court setting aside the purported dismissal of the claimant by the defendant for being wrongful and unlawful.

A look at these reliefs, especially relief (1), will show that the claimant hinges the wrongfulness and unlawfulness of his dismissal on the fact that it was done “while charge number CMC/AB/CR/2014 was pending”. It is for this reason that the claimant would in paragraph 5.7 of his written address, after citing, and quoting from, Innocent Igila &ors v. China Civil Engineering and Construction Company (CCECCO Nigeria Ltd, submit that “this position of the law has not changed” and so the Court should “hold that in view of the evidence before the Court…the dismissal of the claimant was wrongful and unlawful and grant claimant’s relief No. 1”. The claimant was emphatic in paragraph 6.0 of his written address when he gave two grounds upon which he claims that his dismissal was unlawful and wrongful i.e. his dismissal occurred while his criminal trial was pending; and the offence for which he was tried, discharged and acquitted was same with that for which he was dismissed.

 

  1. The argument of the claimant in paragraphs 6.3 and 6.4 of his written address to the effect that where parties submit to the criminal jurisdiction of the court, they have to await its outcome before anything civil can be done is a misconception on the part of the claimant. So too is the argument that an employer can only dismiss an employee if criminal trial is not initiated. Equally a misconception is the argument that an employer who initiates criminal trial can only dismiss after the criminal trial finds the employee guilty. It has never been the law that the pendency of a criminal case precludes the pendency of a civil case on the same facts. And the fact that a criminal trial ends in favour of the defendant does not preclude a civil action on same facts going against him.

 

  1. Since I have discountenanced this reasoning of the claimant, it means that the claimant’s case no longer has any basis and so must fail in its totality. It is thus needless considering all the other reliefs, since they are all hinged on the success of relief (1) as claimed; excepting of course relief (4) of the alternative reliefs as to malicious prosecution. I, therefore, find and hold that the claimant’s case in terms of his dismissal has no merit whatsoever. It fails and so is hereby dismissed.

 

  1. The claimant prayed in paragraph 7.0 of his written address that should the Court not be disposed to reinstating him, the dismissal should be converted to termination so as to enable him get all his financial benefits. Aside from the fact that I have held that he did not prove his case as to dismissal as claimed, there is the issue, as he himself acknowledged, that his reliefs do not have this prayer as a specific relief. He classified his prayer as one of a consequential relief. I do not think it is. And by Gabriel Ativie v. Kabelmetal (Nig.) Ltd (supra):

The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed (my emphasis).

Like I pointed out earlier, the fact of discharge and acquittal by the Magistrate Court does not entail the absence of gross misconduct on the part of the claimant. He was offered the opportunity to appear before a panel to establish that he did not misconduct himself. He turned down the opportunity by refusing to appear before the panel. The panel returned a verdict of guilt. The claimant has only himself to blame here. The talk of converting dismissal to termination does not accordingly arise. I so find and hold.

 

  1. On the issue of malicious prosecution under relief (4) of the alternative reliefs, the claimant had argued in paragraph 7.4 of his written address that the Police had in Exhibit C6 concluded that there was no case of compromise of password made against the claimant. I read through Exhibit C6 and could not find such a conclusion.

 

  1. The claimant had also submitted that despite the Police Report i.e.Exhibit C10 and the defendant’sExhibit D6 i.e. Group Financial Crime Control Forensic Investigation Report, which exonerated him of the allegation of compromising his password, the defendant still proceeded and prosecuted him on the allegation of him compromising his password which allegedly led to the fraud in the defendant’s bank. I looked more carefully at Exhibit D6 especially page 2 referred to by the claimant. The second bullet point has it thus:

All transfers posted and authorized with user IDs A168687 and A168699, belonging to Sunny Nwokeukwu [Asset Custodian, Gwagwalada Branch, Abuja] and Adedayo Ogunleye [HSS, Gwagwalada Branch, Abuja] respectively.

This cannot be said to be exoneration. The fact that in the third bullet point it is stated that “the system used for posting [the] transactions was that of the HSS, Adedayo”, does not take away the sting of the second bullet point.

 

  1. I also took a closer look at Exhibit C10, the Police Investigation Report, which the claimant said also exonerated him. In the report, the Police were quite explicit that the defendant complained about two of its staff: Adedayo Ogunleye and Sunday Nwakwuma. Under Conclusion/Recommendation, the Police has it that the unauthorized transfers “was done using the posting right/login password of the suspects” [note the use of the word “suspects” in plural], although it is “curious to note that there was no report of compromised password nor hacking into the server of Stanbic IBTC Bank”. The Police went on that “in view of the foregoing the first and second suspect were found culpable to the offences…” The Police then concluded that “the suspects were charged to Chief Magistrate Wuse Zone 6 for prosecution”. I do not see how the claimant can read from this that he was exonerated by the Police as to ground an action in malicious prosecution. The claimant must be reading Exhibit C10 upside down. The fact that there was no report of compromised password nor hacking into the bank’s server, does not imply that the claimant was exonerated. If anything, it confirms that the fraud was an inside job. Note that the Police was very specific that the 1st and 2nd suspects (the claimant was the 2nd suspect) were found culpable and charged to the Chief Magistrate Court Wuse Zone 6. This is not exoneration.

 

  1. I do not accordingly find any malice or the absence of a reasonable and probable cause, two critical ingredients required of the claimant in proof of the claim for malicious prosecution. The claim of the claimant in that regard accordingly fails and so is dismissed.

 

  1. On the whole, the claimant’s claims lack merit. They fail and so are all dismissed.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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