Mr. Valentine Nkomadu -VS- Zenith Bank Plc.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

DATE: MAY 09, 2019

SUIT NO: NICN/LA/206/2015

BETWEEN:

VALENTINE NKOMADU – CLAIMANT

AND

ZENITH BANK PLC. – DEFENDANT

REPRESENTATION:

I Anyanwu, Esq., – for the Claimant;

O.E Konwa, Esq.,(with T. Ganikale, Esq.)– for the Defendant

JUDGMENT

The Claimant who served as Senior Manager and Pioneer Head of the Moloney, Lagos Branch of the Defendant Bank, commenced this Suit vide a General Form of Complaintdated and issued on 27^th May 2015, accompaniedwith the requisite frontloaded court processes, against his former employer, basicallychallenging his dismissal from the services of Defendant bank for lack of fair hearing.

The Claimant’s endorsed reliefs are as follows:

A Declaration that the dismissal of the claimant from his employment by the Defendant without fair hearing and observance of due procedure in the terms of his employment is wrongful.
An Order setting aside the dismissal of the claimant for lack of fair hearing.

iii. Special damages in the sum of N89, 585,829.37 which comprise all arrears of salaries, benefits and allowances which the claimant is entitled to from 4^th June 2009 when he was suspended without pay till the determination of this suit with interest at the rate of 21% per annum till judgement is delivered and thereafter at 10% on the judgement sum till final liquidation of the judgement.

An Order allowing the claimant an opportunity to resign his appointment with the Defendant from the date judgement is delivered in this suit.
General damages against the Defendant in the sum of N10, 000,000 (Ten Million Naira) for the pain and suffering occasioned on the claimant upon his wrongful dismissal by the defendant.

Upon service of the originating court processes, the Defendant reacted with Statement of Defence with other defence processes dated and filed on 13^thAugust 2015, denying the Claimant’s claims and set up facts to justify the Claimant’s dismissal from its services. The Claimant responded with Reply to the Statement of Defence dated and filed on 12^th November 2015 along with the Claimant’s Further Witness Statement on Oath deposed to on the same 12^th November 2015, wherein he joined issues with the Defendant on his claims.

The matter had suffered some setbacks since 2015 and passed through two courts before it was re-assigned to this court. The matter started de-novoin this court at the trial proceedings of 19^th April 2018. At the trial, the Claimant testified for himself as sole Claimant’s Witness (CW) and adopted his two sets of Witness Statement on Oath deposed to on 27^thMay 2015 and 12^th November 2015, respectively. CW himself tendered 19 sets of documents (10 sets listed in the Claimant’s list of documents dated 27^th May 2015 and 9 sets listed in the Claimant’s list of documents dated 26^th April 2018 and 3 documents were tendered through him by the Defendant during cross-examination, making a total of 22 sets of documents), all admitted in evidence and marked as ‘Exhibits CV1-CV22’.

The Exhibits are as follows: Letter of offer of employment by the defendant dated19^th August, 1996 (Exh.CV1); Letter of confirmation of the claimant’s employment as permanent staff of the Defendant dated 16/6/97 (Exh.CV2); Letter of Commendation by the Defendant dated 3^rd March, 1999 (Exh. CV3); Defendant’s Internal Memo of Indefinite Suspension of the Claimant dated 3^rd June, 2009 (Exh.CV4); Letter of Dismissal dated 30^th April, 2010 (Exh. CV5); Defendant’s Employee Handbook (Exh.CV6); Letter from the Claimant’s Solicitors dated 7^th June, 2010 (Exh. CV7); Defendant’s Letter dated 29^th June, 2010 to the Claimant’s Solicitor (Exh. CV8); Claimant Solicitor’s final letter of demand to Defendant dated 23^rd July, 2010 (Exh.CV9); Claimant’s payment details in the Defendant’s Bank with Statement of Account No.CA 6090300814.(Exh.CV10); Zenith Bank Plc’s Loan Disbursement Sheet (LDS) Exh.CV11); Certificate of Occupancy No. 12/12/1990 belonging to Joseph OlayinkaAdeniyi (Exh.CV12); Tripartite Legal Mortgage between Leap of Faith Agency Ltd, Joseph OlayinkaAdeniyi and Zenith Bank Plc (Exh.CV13); Letter of Authority by Leap Faith Agency Ltd dated 2/01/2008 authorizing Zenith Bank Plc to debit the sum of N1, 550,000 from its account for cost of perfecting the collateral. (Exh. CV14);

Letter of undertaking by Leap of Faith Agency Ltd dated 2^nd January, 2008 written to Zenith Bank Plc for Overdraft facility of N30,000,000 (Thirty Million Naira) (Exh. CV15); Offer of credit facility dated 28^th December, 2007 for N20,000,000 Bank Guarantee granted Leap of Faith Agency Ltd by Zenith Bank Plc (Exh. CV16); Board Resolution of Leap Faith Agency Ltd dated 23^rd November, 2007 (Exh. CV17); Board Resolution of Leap Faith Agency Ltd dated 7^th January, 2008 (Exh. CV18.); Bank Guarantee of N20,000,000 granted Leap of Faith Agency Ltd by Zenith Bank (Exh. CV19); Offer letter dated 29/11/17 for N30,000,000 credit facility granted Leap of Faith Agency Ltd by the Defendant (exh.CV20); Account Statement of Leap of Faith Agency Ltd on Account N0. CA 1011348802 and an accompanying Certificate of Identification (exh.CV21), and Statement of Account of AdekunleOyedeji on account N0. 1001996323 issued by Zenith Bank Plc (exh. CV 22).

From the pleadings and testimony of CW, the Claimant’s case is that he was that he was employed by the Defendant Bank as Executive Assistant 11 vide Letter of offer of employment by the defendant dated19^th August, 1996 (Exh.CV1) which employment was confirmed as permanent staff of the Defendant vide Letter of confirmation of the claimant’s employment dated 16/6/97 (Exh.CV2). That he served diligently and receiveda Letter of Commendation by the Defendant dated 3^rd March, 1999 (Exh. CV3), and was later promoted and rose to the position ofSenior Manager and Pioneer Head of the Moloney, Lagos Branch of the Defendant Bank before the unfortunate incident of his summary dismissal by the Defendant vide aLetter of Dismissal dated 30^th April, 2010 (Exh. CV5)after undergoing a 10-month suspension, vide theDefendant’s Internal Memo of Indefinite Suspension of the Claimant dated 3^rd June, 2009 (Exh.CV4)based on allegation that he violated credit policy of the Defendant bank by approving unauthorized facilities and engaged in procurement of fraudulent land documents for Customer’s loan collateralization.

CW testified that his dismissal from the employment as a result of some alleged unauthorized disbursements and fraudulent transactions involving some customers of the Defendant bank was wrongful as it was done without regard to due process as stipulated in the Defendant’s Employee Handbook, he was not given fair hearing and there was no evidence of his complicity in the alleged transactions as the transactions were duly approved by the authorized officers of the Defendant. CW maintained that he neither committed nor engaged in any credit violation in the discharge of his duties but followed all due process permitted by the Defendant for officers of his position as Senior Manager and Branch Head.

Relying on exh.CV11, CW further testified that contrary to allegation of the Defendant, the facilities and Bank Guarantee granted the Defendant’s customers under his supervision were duly approved by the Credit Committee and the Loan Disbursement Sheet (LDS) was duly signed by the approving Officers of the Defendant who are authorized to sign it before any loan is disbursed, which is an internal control mechanism of the Defendant and custom in the banking industry, a policy of which he did not breach.

On the account of one customer (Leap of Faith Agency Ltd) which account was alleged to be involved in the breach of the Defendant’s credit policy, CW contended that the two facilities granted Leap of Faith in the sum of N30,000,000vide an offer dated 29/11/07 and a Bank Guarantee of N20,000,000 totaling N50,000,000 were duly approved by the Credit Committee of the Defendant’s bank. That the facilities were secured by a legal mortgage for which the sum of N1,550,000 was debited from the customer’s account by the legal department of the Defendant for perfection of legal mortgage, but which turned out not to have been perfected. CW relied on the legal mortgage admitted as exh.CV 13.

CW pointed that theTitle documents presented as securities for the facilities granted Leap of Faith Agency Ltd (exh.CV13) were duly forwarded to the Legal Department of the defendant for searches. By banking practice and custom, it is the duty and obligation of the Legal Department to conduct searches on title documents of properties provided as securities for loans and issue a report to the Risk Management Group of the Defendant before the Loan Disbursement Sheet (LDS) is signed by the officers of the Defendant who are authorized to sign it.

That by exh.CV11 the document has a column for every officer of the Defendant who is authorized to sign it and they all duly signed. And that the Legal Department of the Defendant headed by one IfeanyiOmeke commented in their column of the LDS that “Branch has forwarded all documents for perfection of legal mortgage”. That despite debiting the sum for the perfection, it turned out that the document used for the loan was fraudulent but instead of the legal department being held, he was made a scape goat.

CW further testified that despite the gravity of the allegations made against him, he was neither issued with any query nor warning and was not given any opportunity to present his defence before any panel or disciplinary committee in observance of the procedure stated in the Employee handbook governing his contract of employment(Exh.CV6). CW contends that his dismissal was without fair hearing and due process, hence this suit, and prays the court to set aside his dismissal and grant his reliefs. He was thoroughly cross-examined by the Defendant’s counsel and he closed his case.

On the part of the Defendant, its defence was opened at the resumed trial proceedings of 14^th December 2018. One Doyin Olowe(Manager in the Defendant’s legal department) testified for the Defendant as DW, adopted his Witness Statement on Oath for the Defendant deposed to on 19^th April 2016. DW tendered 5 documents (listed as nos. 2, 6, 7, 9 &10 in the Defendant’s list of documents dated 13^th August 2015). The documents were all admitted in evidence and marked ‘Exhibits DV1-DV5’. The Exhibits are as follows: Offer letter to Great Abba International Commercial Co. Ltd dated 15^th November 2007 (Exh. DV 1); Statement of Account No. 1011415645 belonging to Great Abba International Ltd (Exh.DV 2); Statement of Account No. 1011320723 belonging to Lorrient Integrated Services Ltd (Exh. DV 3);Statement of Account No. 1011479528 belonging to GAP integrated Technology Ltd (Exh. DV 4); and Statement of Account No 1011283503 belonging to P.M.A Bros. Integrated Services Ltd (Exh. DV 5).

Going by the pleadings and testimony of DW, the case of the Defendant differs markedly from that of the Claimant on the alleged breach of the credit policy of the Defendant bank by the Claimant which culminated in his indefinite suspension and subsequent dismissal from the services of the Defendant.

DW testified that the Claimant violated the credit policy of the Defendant bank, as the Claimant made some recommendations to the management of the Defendant for loan approvals and disbursement and some violations were on loans approved based on the Claimant’s recommendation. The following customers’ accounts were pointed to be involved in the alleged breach of the credit policy: 1.Leap of Faith Agency Ltd; 2.Great Abba International Communication Ltd; 3.Lorrient Integrated Services Ltd; 4.AdekunleOyedeji; 5.Gap integrated technology Limited; and 6.P.M.A Bros Integrated Services Limited.

DW contended that having established some overdrawing of accounts of the customers without approval, the Claimant had breached the credit policy of the Defendant which allows him only to recommend credit and not approval, which informed his suspension and subsequent dismissal as he could not recover the said credits after he was given suspension to enable him recover same. To DW, the dismissal of the Claimant was justified even though he was not given query or subjected to any disciplinary hearing, only was summarily dismissed. DW prays the court to dismiss the suit.

Claimant’s counsel intensively cross-examined the DW and the Defence closed its case. Thereafter, Final Written Addresses were ordered to be filed and exchanged between both counsel.

COUNSEL’S SUBMISSIONS

Submissions by the Defendant’s Counsel:

Learned Defendant’s counsel, ObiajuluKonwa, Esq, in his Final Written Address dated and filed on 31^st December 2018, raised two issues for determination, viz: (1). Whether the Defendant was right in dismissing the Claimant from its employment?, and (2). Whether the Claimant is entitled to the reliefs sought?

Canvassing arguments on issue (1), it is counsel’s submission that the Defendant was right to have dismissed the Claimant from its employment. Although counsel conceded that exh.CV1 (letter of employment issued to the Claimant) and exh.CV 6 (The Defendant’s Employee’s Handbook) create a contract of employment between the parties, yet counsel, citing and relying on Nitel PLC V Akwa [2006] 2 NWLR (Pt. 964) 391; Commissioner of Works , Benue State v. Decon Ltd [1988] 3 NWLR (Pt. 83) 407 @ 425 5C, contended that ‘it is trite law that a master or an employer is entitled to suspend, retire, terminate or dismiss his or its servant or employee for good or bad reason or even for no reason at all’.Counsel further submitted that as an employer has the power to discipline its employee, the Defendant exercised the disciplinary measure of Suspension and Dismissal against the Claimant as contained in exh.CV4 (Internal Memo on Indefinite Suspension) and exh.CV 5 (Letter of Dismissal), which are some of the procedures through which the disciplinary power of the Defendant can be exercised as stated at page 46 paragraph 21 (B) of the Defendant’s employee Handbook (exh.CV6), which includes Query; Formal written warning; Suspension; Withholding of annual increment; Termination and Dismissal.

Counsel contended that the Claimant committed acts of misconduct which worked against the banking interest of the Defendant by allowing various unauthorized overdraft facilities from respective accounts under his care and watch as the Branch Head. Counsel relied on various transactions adduced in evidence at the trial: By offer letter dated 29^th November 2007 (Exh. CV 20) , Leap of Faith Agency Limited was granted a facility in the sum of N30,000,000 (Thirty Million Naira only) but the Claimant without authority of the Defendant allowed the company to draw beyond the approved credit limit as at 14^th December 2007 as shown in the statement of Account (Exh. CV 21) and subsequently the account continued to be overdrawn until it has a closing debit balance of N134,883,955.38 (One Hundred and Thirty-Four Million Eight Hundred and Eighty-Three Thousand Nine Hundred and Fifty-Five Naira Thirty Eight Kobo).

To counsel, the Claimant under cross examination admitted that on the 30^th November, 2007, 12^th February, 2008, 13^th May, 2009, 13^th July, 2009 and 6^th August 2009 the account of AdekunleOyedeji(Exh. CV 22) were overdrawn, a clear case of infraction of the credit policy of the Defendant as such overdrawing were made without the authorization of the Defendant. That in the Statement of Account of Lorrient Integrated Services Ltd (Exh. DV 3), there are clear cases when the account was overdrawn without authorization by the Defendant on 5^th September, 2007, 12^th September, 2007, 20^th November, 2007 and 13^th June, 2008. That in the Bank Statement of GAP Integrated Technology, Ltd (Exh. DV 4), the account was overdrawn without the authorization of the Defendant on 22^nd July, 2008, 28^th July, 2008, and 14^th October, 2008 (14^th October, 2008 shown the payment of N2,000,000 to person whom the Defendant suspects is the brother to the Claimant). That in the Bank Statement of P.M.A Bros. Integrated services Ltd (Exh. DV 5), there are clear cases of the account being overdrawn more particular on three occasions on 23^rd September, 2008 which were never authorized by the Defendant.

Counsel further contended that the Claimant did not furnish any evidence in rebuttal of exhibits CV 20, CV21, CV 22, DV 1, DV 2, DV3, DV4, and DV5 which border on the allegation that the respective accounts in which they relate were overdrawn without the consent or authorization of the Defendant being under the supervision of the Claimant.

Citing and relying on P.T.F. V I.F.M.S [2002] 16 NWLR (Pt. 794) 586; Aprofim Constr. Ltd v. Sidon Ltd [2006] 13 NWLR (Pt. 996) 73, counsel invited the court to hold that such evidence not being rebutted/challenged should be taken to establish the Defendant’s case that the heavy debit balances in those customers’ accounts arose majorly as a result of the Claimant allowing the accounts to be overdrawn without the authorization of the Defendant, a misconduct which the Defendant can punish the Claimant with outright dismissal as shown in Exh.CV5 pursuant to Paragraph 21 (B) of page 46 of the Employee Handbook (Exh.CV 6).Counsel argued that the Defendant having complied with the provision of Exh.CV6 (Employee’s Handbook) which forms the integral part of the contract of employment between the parties, the Defendant was right to have ended the contractual relationship with the Claimant by the dismissal as shown in Exh. CV 5 (Letter of dismissal).

On issue (2) -Whether the Claimant is entitled to the reliefs sought;counsel stoutly submitted that the Claimant is not entitled to the reliefs sought. In respect of the Claimant’s 1^st and 2^nd reliefs, wherein he sought for Declaration that his Dismissal was without fair hearing/due process and prayed that the dismissal be set aside, it is counsel’s submission that in dismissing the Claimant from the Defendant’s employment due process was followed. That the Defendant upon discovery that there was a breach of its credit policy by the Claimant by allowing certain customers without authority to overdraw their accounts under the Claimant’s custody as Branch Headsuspended him (Exh. CV4),so that he could recover the sum overdrawn in respect of those customers’ accounts. And thathe was dismissed following his failure to recover the sums overdrawn (Exh. CV5).

To counsel, the period of suspension which span for about 10 months (between 4^thJune 2009 and 30^th April, 2010) had provided the Claimant with an opportunity to recover the overdrawn funds which could have saved him from dismissal, but he did not utilize the opportunity afforded to him. Consequently, the Defendant was justified in dismissing him and would not be able to complain of lack of fair hearing. Counsel cited and relied on Chami v. UBA Plc [2010] 6 NWLR (Pt. 1191] 474 @ 497, to the effect that where a party decides not to utilize the opportunity offered, he cannot later be heard to complain of lack of fair hearing.

Counsel further argued that the Claimant’s act of breach of Credit Policy of the Defendant bank amounts to gross misconduct resulting in huge debit balances in the affected customers’ accounts, which entitles the Defendant to exercise its disciplinary power of Dismissal against the Claimant as his employer.

On Claimant’s 3^rd relief, for special damages for owed salaries and allowances withheld during the period of his suspension, counsel contended that the Claimant had under cross examination admitted that he did not work for the Defendant since 4^th June, 2009 when he was suspended and 30^th April, 2010 when he was dismissed from the Defendant’s employment. To counsel, assuming the court even holdsthat the dismissal/termination of the Claimant from the employment of the Defendant was wrongful still the Claimant cannot be entitled to wages (including allowances tied to his employment) for services he never rendered. Counsel cited and relied on Olatunbosun v. NISER (1980) 1 NSCC Vol. 19 Pt.1 page 1025 @ p. 1047 to the effect that ‘an employee whose contract has been unlawfully terminated cannot claim wages for services he never rendered’.

On the Claimant’s 4^th relief, seeking the court’s order to allow the Claimant return to the Defendant to resign his employment, counsel contends that granting such a relief would infringe on settled principle of employment law to the effect that in master-servant relationship, the employer can terminate the employment for good or bad reason or no reason at all, and a servant cannot be foisted on an unwilling master.

Learned Defendant’s counsel also submitted that the Claimant is not entitled to award of general damages, which is awardable based on materials placed before the court. To counsel, the Claimant seeking for general damages has a duty to place before this court evidence not only in proof of his case but also in proof of his entitlement to such damages. Counsel contends that, unfortunately, the Claimant failed to discharge this onus. Citing and relying onOkoro v. Dakolo [2006] 14 NWLR (Pt. 1000) 61 @ 434 Para. C–D; Smithkline Beecham Ltd v. Farmex Ltd [2010] INWLR (Pt. 1175) 285 @ 306 Para B-D, counsel submitted that the award of general damages would fail where the claim itself fails or the wrong alleged was not established by evidence.

On the whole, counsel urged the court to uphold the Defendant’s defence and dismiss the suit with substantial cost.

Submissions by Claimant’s Counsel:

Learned Claimant’s counsel, Casmir I. Anyanwu, Esq, on his part, settled the Claimant’s Final Written Address dated 13^th March 2019 and filed on 14^th March 2019, wherein he raised three issues for determination, viz:(1). Whether thedismissal of the Claimant from his employment without fair hearing and observance of due procedure in the terms of his employment is wrongful?(2).Whether the Claimant violated any Credit Policy of the Defendant or responsible for the alleged unauthorized disbursement of funds and overdrafts to the Defendant’s customers?, and (3). Whether considering the circumstances of this matter, pleadings and evidence before the Court, the claimant is entitled to the reliefs sought in this suit?

On issue (1), learned counsel submitted that the dismissal of the Claimant by the Defendant was in breach of the provisions of the Contract of employment between the parties, governed by the offer of employment (exh. CV1) and the Employee Handbook (exh. CV6), stating the terms and conditions of service.

Counsel pointed the various disciplinary measures to be meted for any erring employee by the Defendant, as stipulated in Paragraph 21.1(B) of exh. CV6, as follows: a.Query; b.Formal Written Warning; c.Suspension; d. Withholding of annual increment; e.Termination; and f.Dismissal.Counsel argued that fair hearing and due process was not afforded the Claimant in the course of his dismissal, pointing that the Claimant was not given query or warning or afforded an opportunity to be heard on the allegations against him as stipulated in Paragraph 21.1(B), 21.2, 21.3 (a) to (d) of exh. CV6. Citing and relying on Fiicharles Organ v. N.L.N.G Ltd &Ors (2013) Vol 5-7 MJSC (Pt.1) 173 @ Pp. 201-202 Paras. G-A; Imonikhe v. Unity Bank Plc (2011) 5 MJSC(Pt.II) 170; Eze v. Spring Bank Plc (2011) 12 MJSC (Pt.1) 1, counsel submitted that suchanact violated the Claimant’s right to fair hearing and constitutes a breach of his contract of employment by the Defendant.

On issue (2) , it is counsel contention that despite allegation of breach of credit policy of the Defendant which the Defendant anchored the dismissal of the Claimant on, the Defendant did not tender any Credit Policy in proof of its assertion and failed to lead any evidence in that regard. Citing and relying on Eyo v. Onuoha (2011) 3-4 MJSC 48 @ 71; Ss.131 and 132 of the Evidence Act, 2011, counsel further argued that the law is settled that he who alleges the existence of facts must prove that those facts exist and the burden of proof lies upon that person.

Counsel further submitted that since the Defendant did not present any evidence of its said Credit policy, same is deemed abandoned, and urged the court to so hold, citing and relying on Bilante International Ltd v. N.D.I.C (2010) ALL FWLR (Pt. 598) 804; Owners of M/V Gongola Hope v. Smurfit Cases Ltd (2007) ALL FWLR (PT. 388) 1005, SC; Military Gov., Lagos State v. Adeyiga (2012) 2 MJSC (Pt. 1) 76 @ P.133 Para E; Okechukwu v. Okafor (1961) 2 SCNLR 369.

Counsel further argued that based on evidence adduced at the trial, the Claimant did not authorize any over drawing of any of the customers’ accounts as alleged by the Defendant. That in respect of Leap of Faith account, Clause 5 (other conditions) contained in page 3 of exh. CV 20, stipulates that: “Any drawings in excess of the facility amount shall attract a penal fee of 1% flat per month in addition to charging prevailing interest rate”. And based on this blanket approval for extra drawings by the Defendant’s management, the Claimant did not unliterary grant any approval.

Counsel contended that the proceeds of the drawings are also income to the Defendant and the Claimant has no personal benefit from such proceeds, wondering what wrong the Claimant committed in attracting more funds to the Defendant in lawful discharge of his duty.

Counsel also pointed that in respect of the Leap of Faith facility, a cursory look at the statement of account of the company (exh.CV 21) shows that the Defendant debited the accounts of the customer for excess drawings by way of interest charge on Excess OD (Over Draft) by at least 1% or more. And apart from the debits as interest charge on excess OD, exhibit CV21 shows some debits as interest charges also. Moreover, referring to exh. CV11, counsel argued that the loan followed due process of approval and all relevant officers signed and it ought to be secured by a legal mortgage which the legal department of the Defendant neglected to perfect despite deduction of the charges from the customer’s account.

As regards the Great Abba International Commercial Co. Ltd’s account, counsel contended that exh.DV1 dated 15/11/07 contains an interest rate of 19% per annum. However, a careful calculation of the interest sums shown in the statement of account (exh.DV2 )shows that the Defendant was wrongly charging the customer an interest rate of 44.75% which is far and above the 19% interest rate stated in the offer letter (exh.DV1).

On AdekunleOyedeji’ account, counsel pointed that as shown in the Statement of Account (exh.CV22) it was a transferred account to the Claimant’s branch. And that the customer’s account was overdrawn on 30/11/07 and 7/10/08 and was not overdrawn on 12/2/08. That CW maintained during cross examination that the account was overdrawn because the customer, AdekunleOyedeji has a Credit Card approved by the bank and not the Claimant that enabled him to overdraw.Counsel contended that during cross- examination of DW, he admitted that a Credit Master Card was approved for AdekunleOyedeji by the Defendant. Counsel further pointed that a thorough look at exh. CV 22 shows that the customer uses a Credit Master Card issued him by the Defendant Bank. And that DW had further stated that where a customer exceeds a particular range of his credit line there will be a default interest rate applicable to the account.

Counsel finally submitted that the Claimant never violated any policy of the Defendant to warrant his summary dismissal, and urged the court to so hold.

On issue (3), it is counsel’s vehement submissions that the Defendant has led evidence to entitlement of his reliefs sought as required by the law. Counsel contends that the evidence of the employment relationship and contract of service was tendered and established. That the breach of the due process and fair hearing in respect of the dismissal of the Claimant by the Defendant was established at the trial, making his dismissal unlawful, as parties to employment contract are bound by the terms of the service contract and extrinsic evidence is not allowed to vary the terms of such contract. Counsel cited and relied on Shell Pet, Dev. Co. (Nig)Ltd v. Ifeta[2001] 11 NWLR (Pt.724) 476 @490 para G, 491 paras A-B; AtibaIyalamu Savings & Loans Ltd v. Suberu& Anor (2018) 3 MJSC (Pt.II), 74 Pp.104-105;KOIKI v. Magnusson [999] 8 NWLR (Pt. 615) 492, Owoichi v. PureChem Industries Limited (2015) 61 NLLR (Pt. 215) 510.

On special damages, counsel contended that the Claimant specified the particulars of special damages in the tune of N89, 585,829.37 which comprise of all arrears of salaries, benefits and allowances which the Claimant is entitled to from 4/06/2009 when he was suspended without pay till the determination of this suit with interest at the rate of 21% per annum till Judgment is delivered and thereafter at 10% on the judgment sum till the final liquidation of the judgment. Counsel pointed that during trial, the CW tendered exhs. CV1 and CV 10 (the Offer of employment and the Claimant’s Statement of Account with the Defendant, respectively), showing the items particularized in the Special damages as pleaded in Paragraph 21 (A) and (B) of the Claimant’s Statement of Facts, which would aid the court in arriving at a clear calculation of what the Claimant is entitled to.

Citing and relying onOdumosu v. ACB (1976) 11 SC 55; Ahmed &Ors v. Central Bank of Nigeria (2012) 7, MJSC 1 @ 30-31, paras F-B per Fabiyi JSC; Ekpenyong v. Nyong(1975) 2 SC 8, counsel submitted that the Claimant having placed material evidence and particulars of the special damagesis entitled to the grant of the special damages as claimed.

Counsel further submitted that since the Claimant was on suspension without pay for about 10 months he was still a staff of the Defendant and was suffering hardship of indefinite suspension he is still an employee and entitled to his remunerations, on the authority of Longe v. F.B.N. PLC [2010] 6 NWLR (Pt. 1189); Akwarandu v. Jemmtek Resources Limited (2015) 52 N.L.L.R (pt. 176)547. Counsel insists that theClaimant is entitled to the sum of ₦13, 552,990.00 being his entitlement for 10 months when he was placed on an indefinite suspension without pay.

On the claim for general damages, counsel argued that the claimed sum of N10, 000,000is for the pain and suffering occasioned on the claimant upon his wrongful dismissal by the Defendant. The Claimant maintains that the Claimant suffered great damage to his reputation as a banker who was dismissed at the level of a Senior Manager and Branch Head of the Defendant. Citing and relying on Ighosewe v. Delta Steel Co (2008) 3 FWLR (Pt. 428) 3825, counsel submitted that though the award of general damages is a prerogative of the court, the general damages available to the claimant in relation to the emotional injury shall include compensation for pain and suffering he went through as a result of the wrongful act of the Defendant in dismissing him from employment.

Concluding, counsel urged the court to uphold the Claimant’s case and grant his reliefs.

At the resumed proceedings of 15^th March 2019, both counsel adopted their respective Final Written Addresses, adumbrated on them and urged the court to uphold their respective submission in favour of the respective parties. The matter was thereafter adjourned for Judgment.

COURT’S DECISION

I took active part in the proceedings; painstakingly read the pleadings and processes, as well as submissions canvassed in the Final Written Addresses filed and exchanged by respective Counsel in advancing the case of the parties they represent, and keenly watched the Witnesses testify and noted their demeanors, and carefully evaluated the evidence tendered as exhibits in the proceedings, and conducted independent research for reliable authorities to resolve the issues in dispute between the parties.

Learned Defendant’s counsel had raisedand canvassed arguments on the two issues he raised for determination in defence of the suit against the Defendant, viz:(1). Whether the Defendant was right in dismissing the Claimant from its employment? and(2). Whether the Claimant is entitled to the reliefs sought?On the other hand, the Claimant’s counsel raised and canvassed legal submissions on three issues he raised for determination of the Claimant’s case, viz:(1).Whether the dismissal of the Claimant from his employment without fair hearing and observance of due procedure in the terms of his employment is wrongful? (2).Whether the Claimant violated any Credit Policy of the Defendant or responsible for the alleged unauthorized disbursement of funds and overdrafts to the Defendant’s customers?, and (3). Whether considering the circumstances of this matter, pleadings and evidence before the Court, the claimant is entitled to the reliefs sought in this suit?

Upon review of the issues and supporting submissions by both counsel, I have formed the view that the respective issues raised by both counsel are closely related and can conveniently be subsumed and taken together under the following threeencompassing issues:

(1) Whether the Dismissal of the Claimant by the Defendant was in breach of fair hearing and due process and therefore wrongful?

(2). Whether the Claimant committed misconduct in discharge of his duties with the Defendant to warrant his dismissal?

(3) Whether the Claimant has proved his case and entitled to the reliefs sought?

I will proceed to resolve the dispute along line of these three issues set out for determination.

On issue (1) – Whether the Dismissal of the Claimant by the Defendant was in breach of fair hearing and due process and therefore wrongful: The crux of the Defendant’s counsel’s submission in his similar issue (1), is thatin exercise of its disciplinary power over the Claimant as its erring employee, the Defendant was right to have dismissed the Claimant from its employment after his initial suspension for act of misconduct, as contained in exh.CV4 (Internal Memo on Indefinite Suspension) and exh.CV 5 (Letter of Dismissal), among other available disciplinary measures inpage 46 paragraph 21 (B) of the Defendant’s employee Handbook (exh.CV6), which includes Query; Formal written warning; Suspension; Withholding of annual increment; Termination and Dismissal.

On his part, Claimant’s counsel’s main thrust of argument on this issue, still placing reliance on the exh.CV6 isthat fair hearing and due process was not afforded the Claimant in the course of his dismissal, pointing that the Claimant was not given query or warning or afforded an opportunity to be heard on the allegations against him as stipulated in Paragraph 21.1(B), 21.2, 21.3 (a) to (d) of exh. CV6. Consequently, suchanact violated the Claimant’s right to fair hearing and constitutes a breach of his contract of employment by the Defendant.

In determining wrongfulness or otherwise of dismissal of an employee, the law is that the onus of proof is on the Claimant employee, who alleges that his dismissal is wrongful/unlawfully to prove the wrongfulness/unlawfulness of the dismissal. Thus, it is the duty of the Claimant to show by credible evidence how the alleged dismissal was wrongful. In Ndili v. Akinsumade [2000] 8NWLR (Pt.668)293 ;( 2000) LPELR-6910(CA), Pp.65-66, Paras.D-A, the court set out the test to adopt to determine whether an employee was wrongfully/unlawfully dismissed, thus:

“The test of whether the dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the dismissal conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rules of natural justice so as to render the formal compliance a travesty”

Applying the test on evidence on record, the Claimant, in his evidence, frontally challenged the dismissal as wrongful on ground of the Defendant’s failure to observe due process and lack of fair hearing, by not affording him any opportunity to defend himself over allegation bordering on misconduct levelled against him by the Defendant before exercising disciplinary measure of dismissal against him. Claimant relied on natural justice rule of fair hearing and the Disciplinary Procedure set out in the Defendant’s Employee Handbook (exh.CV6), which together with the Offer of Employment letter dated August 19, 1996 (exh.CV1) constitutes the contract of service between the parties.

The Paragraph 21.6 which deals with ‘Summary Dismissal’ states: “A staff may be summarily dismissed from the services of the ground of incompetence, gross negligence, misconduct or disobedience which makes his/her continued employment prejudicial to the proper working of the Bank.”Although the Defendant did not state any reason in the Dismissal Letter dated April 30 2010 (exh.CV5), where it merely stated: “This is to advise that effective April 3, 2010 you are dismissed from the services of the Bank. Please handover your identity card and other bank’s properties in your possession to the Head of Human Resources” , the reason was earlier stated in the Suspension letter in Internal Memo dated June 03,2009 (exh.CV4), which preceded the dismissal. It reads: “Our attention has been drawn to various illegal and unauthorized overdrafts disbursed by you to various customers. Investigations revealed that you: -Disbursed sums totaling N95.4m overdraft in excess of customers’ approved credit limits. – Unilaterally authorized the disbursement of other sums totaling N4.84m to some customers. Consequently, you are hereby placed on indefinite suspension without pay, effective June 4, 2009to enable you concentrate on the full recovery of the overdrafts disbursed in violation of the bank’s credit policies. Please handover the bank’s property in your possession to your zonal head.”

Claimant’s contention is that he was not confronted with any such allegation and not queried before his suspension and subsequent dismissal, contrary to the provisions of Paragraph 21.2 of Defendant’s Employee Handbook (exh.CV6) which requires at least a query to be issued to the employee involved in such alleged misconduct. It reads: “If an employee commits an offence which in the opinion of the Head of Dept/Unit is serious, such an employee can be issued with a query by his/her unit or departmental head which should be answered within 48 hours”.

The question remains, did the Defendant follow the extant service contract between the parties and rules of natural justice in dismissing the Claimant? From the records, it is common ground and not disputed between the parties, and I find that in coming to the decision to dismiss the Claimant following his earlier suspension for the alleged misconduct against him, the Defendant did not issue him query or confronted him with such allegations or afforded him any form of opportunity to be heard in defence of himself, at least to offer an explanation on his involvement in the alleged misconduct.

I find as contrary to the contract of service (Employee handbook), the Defendant’s failure to issue query and request for the Claimant’s response over such serious allegation of misconduct as stipulated in paragraph 21.2 of exh.CV6.Again, what the Defendant’s counsel described an opportunity to be heard was the suspension with the directive to the Claimant to recover the outstanding sums. To counsel, the Defendant was justified in dismissing the Claimant and that was not in breach of the contract of service or rules of fair hearing since he could not recover the overdraft sums during his 10-month suspension.

Counsel had evengone ahead to cite the case of Chami v. UBA (supra), to the effect that where a party decides not to utilize the opportunity offered him, he cannot later be heard to complain of lack of fair hearing. Was therereally an opportunity of hearing given to the Claimant or is the Defendant’s counsel just being puckish and boisterously heretical with his submissions? I find this line of reasoning by the learned Defence counsel as incongruous and not in any way suitable and helpful in the resolution of the issue under discourse. I therefore hasten to discountenance same. I so hold.

To my mind, in resolving issue of fair-hearing in administrative setup involving exercise of disciplinary measure against an employee in workplace, the crucial consideration at that stage is not whether the employee is guilty of the alleged misconduct or not, but more of, whether the employer had adopted such disciplinary procedure in accordance with due process and rules of natural justice.

On that note, I find that the Defendant just rashly administered the disciplinary measure of dismissal simplicita against the Claimant for the alleged misconduct without regard to due process and need to observe basic tenent of fair hearing; an intrinsic component of the hallowed twin rules of natural justice, without which even the best decision gets self-destruct.

In my view, this act is not only in breach of the provision of the extant contract of service between the parties but also constitutes a flagrant breach of natural justice rule of fair hearing- audi alteram patem. In Odunlami v. Nigerian Navy [2013] 12 NWLR (Pt. 1367) S.C.P. 20 @ P. 52, para. D, the Supreme Court explained that: “Audi alteram partemmeans hear the other side. It is a maxim denoting basic fairness and a canon of natural justice”.The Supreme Court in Citech Int’l Estates Ltd v. Francis [2014] 8 NWLR (Pt. 1408) S.C. P. 139 @ Pp. 163, paras.E-H; 170, paras. B-C re-echoed the legal effect of denial of right to fair hearing, thus:

“The denial of fair hearing is a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial, whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision”.

See also: Salu v. Egeibon [1994] 6 NWLR (Pt. 348) 23; Ndukauba v. Kolomo [2005] 4 NWLR (Pt. 915) 411; Adigun v. A-G., Oyo State [1987] 1 NWLR (Pt. 53) 678.

Again, a rearing preeminent question is, can there be a Dismissal without reason? An elucidated analysis of the consequential effect of Dismissal as against Termination becomes imperative in this discourse.Though Dismissal and Termination are both legally recognizedexit pathways for employee in employment relationship, and are often misconceived as interchangeable, somekeydistinguishing features mark them out with divergent outcome in employment exit pathways. Termination is a contractual exit available to both employer and employee, and may go with or without reason, as it may not be for disciplinary purpose, but just for mere compliance with extant contract of service to bring the employment relationship to a lawful end. On the other hand, Dismissal is solely a disciplinary measure available for only the employer with consequential denial of pecuniary entitlements of employee’s earned terminal benefits and image battering;casting doubt of future employability.

In my humble but tenacious view, for the simple reason that Dismissal has the adverse effect of taking away the employee’s earned terminal benefits, the employer is not at liberty to dismiss an employee without justifiable reason and observance of due process and fair hearing. The standard remains the same whether in statutory employment or master/servant employment governed by common law. The only difference is that unlike statutory employment where an employee can be forced on an unwilling master by reinstatement order, in the case of employee under master/servant regime, notwithstanding a finding of wrongful dismissal, the employee is not entitled to reinstatement, as that would mean foisting a servant on an unwilling master, contrary to the age-long employment canon rule- that in employment governed by common law, a servant cannot be foisted on an unwilling master, and vice versa. I so hold.

Consequently, I retain a stable view that in any kind of employment regime, (be it statutory or under common law), best practice is that Dismissal must be for justifiable reason and due observance of extant contract of service and fair hearing. Accordingly, an employer who decides to dismiss the employee is not only obliged to provide reason(s) for the Dismissal but also justify the reason(s) if challenged. Thus, the often adopted veiled reason of ‘services no longer required’ or muted reason is not applicable to Dismissal but limited to only Termination, subject to service of appropriate notice period or salary in lieu of notice. I so hold.

In light of the foregoing legal prescriptions on best practice of employment and labour relations, I have taken another look at the Dismissal Letter dated April 30 2010 (exh.CV5). The opening paragraph reads: “This is to advise that effective April 3, 2010 you are dismissed from the services of the Bank…” I find that no reason was stated. Another look at the provisions of the Employee Handbookdealing with Summary Dismissal in paragraph 21.6 reveals requirement for reason for the exercise of disciplinary measure of Dismissal. It reads: “A staff may be summarily dismissed from the service on ground of incompetence, gross negligence, misconduct or disobedience which makes his/her continued employment prejudicial to the proper working of the Bank”. Again, I find that the Defendant failed to comply with its own contract of service with the Clamant by failing to disclose the reason for exercising the disciplinary measure of dismissal against the Claimant.

In the circumstance, this issue (1) is resolved in favour of the Claimant. Accordingly, I hold that the Dismissal of the Claimant by the Defendant was in breach of fair hearing and due process and therefore wrongful.

On issue (2) –Whether the Claimant committed misconduct in discharge of his duties with the Defendant to warrant his dismissal:Although I did find and had declared as wrongful the Claimant’s dismissal by the Defendant, I will nevertheless proceed to evaluate evidence relating to the said dismissal, with a view to determine whether it was justified on the basis of the alleged misconduct levelled against the Claimant which precipitated the wrongful dismissal albeit for lack of fair hearing and non-compliance with the extant due process in the condition of service.

As rightly canvassed by the learned Defendant’s counsel, the law is quite settled that in an employment relationship governed by common law rule of master/servant, as in the instant case, the master can terminate the employment with or without reason. However, the corollary is that where the employer terminates the employment with reason, particularly based on allegation of misconduct, and the employee challenges same, the evidential burden is on the employer to justify the allegation of misconduct for the dismissal. See: Shell Petroleum Co.Ltd v. Olanrewaju [2008]18 NWLR (Pt.1118)SC1@Pp.19-20, Paras.H;A-B. InJoseph &Ors. v. Kwara State Polytechnic (2013) LPELR- 21398 (CA) the court held thus: “……I agree that under a common law principle of master/servant relationship, an employee can dismiss for any act of misconduct, which must be established by evidence, if the dismissal is challenged in Court.”

To justify the reason for the dismissal, the Defendant’s contention is that the Claimant was involved in breach of credit policy of the Defendant bank and engaged in other fraudulent transactions in connivance with the customers against the interest of the Defendant bank. Reliance was heavily placed onexhs. CV20, CV21, CV22, DV1, DV1, DV2 , DV3, DV4 and DV5, which border on the allegation that some customers’ account were overdrawn without authorization by the Defendant as alleged in the Suspension letter (exh. CV5).

The Defendant was more explicit on the alleged misconducts in its Reply letter dated June 29, 2010 (exh.CV8) to the Claimant’s Solicitor’ letter of Demand dated June 7 2010(exh.CV7). In paragraph 2 of the exh.CV8, the Defendant alleged against the Claimant that: “As Branch Head, he introduced a lot of fraudulent customers to the Bank, which he, in connivance with them defrauded the Bank of various sums of money”.

Defendant had goneahead to state in the exh.CV8, the steps being taken to instigate the incidents of misconduct involving the Claimant by sending petition to the Police and Economic & Financial Crimes Commission (EFCC). The paragraphs 5-7 of the exh. CV8 reads:“5. consequently, the Bank wrote a petition dated December 7, 2009 to the Commissioner of Police, Special Fraud Unit,Ikoyi, Lagos which petition is being investigated at the Special Fraud Unit, Ikoyi, Lagos. 6. The bank also wrote a petition to the Economic and Financial Crimes Commission (EFCC) on related issues to the above fraudulent dealings”.

In respect of violation of credit policy of the Defendant Bank as pleaded in paragraph 8 of the Statement of Defence and averred in paragraph 7 of the Witness Statement on Oath of Mr. Doyin Olowe (DW), it was testified that:” (a) Leap of Faith Agency Limited – The bank approved an N30Million overdraft facility for the customer. However, under the watch and supervision of the Claimant and without approval the account was overdrawn to the tune of N70Million with a debit balance of N134,883,955.38 (one hundred and thirty four million, eight hundred and eighty three thousand, nine hundred and fifty five naira, thirty eight kobo); (b) Great Abba International Communications Ltd- The Bank approved an invoice discounting facility of N10Million. However, under the supervision of the Claimant and without any approval the customer’s account was overdrawn leaving a debit balance of N51,045,653.26 (fifty one million, forty five thousand, six hundred and fifty three naira, twenty six kobo)”.

In paragraph 3 of exh.CV8, in respect of the Leap of Faith Agency account, the Defendant had alleged against the Claimant thus: “ Specifically, your client connived with one Mrs. AjibikeAdeowo Philips (MD/CEO of Leap of Faith Agency Limited) to present a cloned Certificate of Occupancy to the Bank to secure credit facility. Moreover, your client knowing full well that the property was nonexistent, failed to do a visitation report to the Bank and actively went ahead to make other fraudulent disbursements to the customer and other customers, which sums remain outstanding till date”.

Claimant had vehemently denied involvement in any such impropriety and joined issues with the Defendant on the said allegations. He offered explanations on each of the allegations. Of interest is his explanation in respect of loan/overdraft granted to Leap of Faith Agency Limited.Claimant testified that the loan granted the said customer was duly approved after all necessary verification by the approving committee was done and each required signatory duly signed before the loan was approved. That he did not grant the approval or neglect to carry out his necessary obligations in respect of his recommending the loan.

Claimant had testified that the loan was meant to be secured after the land documents were presented and he forwarded to the Defendant’s management, the land documents and corporate board resolutions of the customer company, including Valuation Report of the property conducted by renowned Estate Valuer. And upon presentation of the documents for the legal mortgage, the account of the customer was debited for amount covering the perfection fee by the Legal Department. Claimant had also emphasized that the legal department who was in charge of verification of land instruments and perfection of the legal mortgage to secure the loan was negligent and could not discharge their vital aspect of duty in the loan transaction, but delayed until about 9 months before coming up with the allegation that the land document was fraudulently cloned. Yet the management did not find any wrong doing with those in the legal department who neglected to perform that vital assignment in the interest of the Defendant Bank. This piece of evidence was neither denied in pleadings nor debunked at the trial. From the record, during cross-examination, DW (Defendant Bank’s Manager, Legal) was asked:

“Q: Look at exh.CV21 (statement of account of Leap of Faith Agency Ltd). In that statement, transaction dated 2^nd June 2008 shows a debit of N1,550,000. What was the debit for?

A: It is for perfection of legal mortgage.

Q: Was the mortgage perfected?

A: I believe it was. I am not so certain. It may not necessarily mean it is perfected.

Q: Is there proof of perfection?

A: I am not in a position to provide proof of the perfection”.

On the allegation of extra withdrawal above the initial approval by the customer under the supervision of the Claimant, I find the explanation given by the Claimant plausible. Claimant had testified that the loan instrument permitted the customer to withdraw extra funds beyond the initial approved facility subject to the customer being charged extra interest rate, which the customer utilized and the Defendant charged and earned extra funds from the charges. And thus, the Claimant committed no misconduct in such contractual arrangement. This testimony is confirmed by Clause 5; following line 14 titled Other Conditions of the Offer of Credit Facility dated November 29, 20079 (exh. CV20). It reads: “Any drawings in excess of the facility amount shall attract a penal fee of 1% flat per month in addition to charging prevailing interest rate”.

I have reviewed the entire testimonies of the CW and DW on this issue. I find the testimonies of CW more believable and reliable as they are anchored on documentary evidence of the transactions and supporting credible evidence elicited during the cross-examination of CW and DW. At the trial, I find that the Defendant did not contradict this material testimony of how the loan was granted and the basis of the over drawn customer’s account.ng and the interest the Defendant earned from it and the unperfected mortgage due to negligent conduct of the legal department. DW under cross-examination did not dispute the reason for non-perfection of the loan transaction or the reason for the overdrawn account given the clause 5 of the other conditions in the offer of facility letter, which permitted the customer to withdraw beyond initial approval limit. This piece of evidence stands established in favour of the Claimant. I so hold.

On the Great Abba International Commercial Co. Ltd’s account, I have examined exh.DV1 dated 15/11/07 which contains an interest rate of 19% per annum. However, a careful calculation of the interest sums shown in the statement of account (exh.DV2 )shows that the Defendant was instead charging the customer an interest rate of 44.75% which is far and above the 19% interest rate stated in the offer letter (exh.DV1), yet the Defendant alleged misconduct against the Claimant on this account.

I have also examined another account forming part of the allegation of misconduct against the Claimant – Statement of Account of AdekunleOyedeji (exh.CV22), which was testified to have been transferred account to the Claimant’s branch. It was overdrawn on 30/11/07 and 7/10/08 and was not overdrawn on 12/2/08. CW testified under cross-examination that the account was overdrawn because the customer, AdekunleOyedeji, was issued a Credit Card approved by the bank and not the Claimant that enabled him to overdraw. I also find that during cross- examination of DW, he admitted that a Credit Master Card was approved for AdekunleOyedeji by the Defendant. A review of exh. CV22 shows that the customer uses a Credit Master Card issued him by the Defendant Bank.DW also testified under cross-examination that the Defendant’s practice where a customer exceeds a particular range of his credit line was to apply a default interest rate charge on the account.

Although the alleged breach of the credit policy of the Defendant bank formed the crux of the Defendant’s basis of the exercise of disciplinary measure of summary dismissal against the Claimant, yet no evidence of any document evidencing the existence of the credit policy was tendered at the trial.

When asked under cross-examination,‘where is the Credit Policy?’ DW did not provide any. Rather, he referred to the Offer letter(exh.CV20).Upon examining the Offer letter for the N30M facility to Leap of Faith Agency Ltd, (exh.CV20),I find no provision dealing with Credit Policy for which the Claimant could have breached. Also, by exhCV8, the alleged infractions were said to have been reported to the Special Fraud Unit (SFU) of the Nigerian Police and the EFCC, and investigation was said to be ongoing as at June 2009. Almost ten years later at the trial of this matter, no evidence of the outcome of the said investigation was tendered to shed light into the culpability of the Claimant who lost his job on account of such allegations.

From the foregoing pieces of evidence, I find it doubtful as to whether the Defendant actually carried out thorough investigation as claimed in the Suspension letter issued to the Claimant which lasted for 10 months, or even during the suspension period culminating in his dismissal.

Flowing from the above findings, I no longer entertain any doubt whether the Claimant indeed committed such acts of misconduct to have warranted his summary dismissal by the Defendant.It is my view and I hold that the Claimant’s dismissal was not justified by the Defendant. I therefore resolve this issue (ii) in favour of the Claimant. Accordingly, I hold that the Claimant did not commit such misconduct in discharge of his duties with the Defendant to warrant his summary dismissal.

Having gone thus far, it is time to consider the reliefs sought for by the Claimant, anchoring issue (3)-whether the Claimant has proved his case and entitled to the reliefs sought?The case of the Claimant points to one declaratory relief of which positive determination would ground and anchor sustenance of the other substantive reliefs, in addition to claims for special damages for recovery of outstanding entitlements and damages for wrongful dismissal.

Relief (i) is declaratory. It seeks for a ‘Declaration that the dismissal of the Claimant from his employment by the Defendant without fair hearing and observance of due procedure in the terms of his employment is wrongful’.The extent of discharge of burden of proof on the Claimant seeking declaratory reliefs has been guided inDim v. Enemuo [2009] 10 NWLR (Pt. 1149) SC 353@Pp.380-381, Paras.F-D, to the effectthat even admission of the Claimant’s pleadings by the Defendant is not enough to anchor and sustain relief bordering on declaration of right. To ascertain if the Claimant satisfied this requirement, the pertinent question remains, did the Claimant lay sufficient and cogent evidence to support his declaratory relief?

I have earlier dealt with this question while resolving issue (1), and had come to the finding that, from available evidence on record based on the pleadings and adduced evidence at the trial, that the Claimant’s dismissal did not follow due process and was done in flagrant disregard to the tenents of the natural justice rule of fair hearing and in breach of the provisions of the extant condition of service guiding the parties’ employment relationship and binding on them. I maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties. In U.B.N Plc. v. Soares[2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court can wisely lend its judicial arms to do otherwise. I so hold.

I am therefore, satisfied that the Claimant has laid sufficient credible evidence in proof of his declaratory relief. To that effect, this relief (i) succeeds. It is hereby declared thatthe dismissal of the Claimant from his employment by the Defendant without fair hearing and observance of due procedure in the terms of his employment is wrongful. I so declare.

Relief (ii) is for an “Order setting aside the dismissal of the claimant for lack of fair hearing”. Having declared the Claimant’s dismissal wrongful in relief (i) above, and given that the employment relationship in issue is that of master/servant and reinstatement is not available for the Claimant, it is suffices that the dismissal is declared wrongful, meaning that no intended adverse effect of dismissal is still attached to the act of dismissal of the Claimant. This Relief is therefore unnecessary as it has been overtaken by the declaratoryrelief (i) above, already granted. I so hold.

Relief (iii) deals with claim for “Special damages in the sum of N89, 585,829.37 which comprise all arrears of salaries, benefits and allowances which the claimant is entitled to from 4^th June 2009 when he was suspended without pay till the determination of this suit with interest at the rate of 21% per annum till judgement is delivered and thereafter at 10% on the judgement sum till final liquidation of the judgement”.The claim for special damages for recovery of terminal benefits/ outstanding arears of salaries and allowances becomes valid as the Claimant’s dismissal has been declared wrongful, with consequential revival of the Claimant’s right to his seized salaries and allowances during the period of suspension and terminal benefits for his exiting the Defendant’s services not on account of dismissal.

Special damages are not granted as a matter of course but require pleading of material particulars and leading evidence in proof.See: Lufthansa German Airlines v.Ballanyne [2013] 1NWLR (Pt.1336) CA 527. To satisfy the requirement, inParagraph 21 (iii) of the Statement of Facts and Paragraph 22(iii) of the CW’s Witness Statement on Oath, the Claimant pleaded particulars of the Special damages and led evidence there to.The particulars were grouped into two categories- (A) Claim for period of Suspension totaling N13,552,990.45 and (B) From Dismissal to 2015 (April 2010 –April 2015), totaling N76,032,838.92.

I will quickly dispose of the category (B) as they fall after the dismissal which though wrongful effective brought the employment relationship to an end, and the Claimant cannot claim earnings beyond that date having not worked or deemed to still be in service of the Defendant during the period post-dismissal saga.Accordingly, this category (B)claims are hereby discountenanced.

On the remaining category (A) claims, in the sum of N13, 552.990.45, representing the Claimant’s salaries (June 2009-March 2010 in the sum of N631, 716.97 per month, and other allowances covering the same period (2009-2010).The Defendant’s main contention against this relief was that the Claimant was on suspension and did not work and therefore could not earn any such salaries and allowance during the period of the suspension and subsequent dismissal.

Learned Defendant’s counsel seems to have merely glossed over the legal status of an employee undergoing suspension, to the effect that such an employee remains in the service of the employer until the employment is brought to an end. The law is that suspension does not terminate an employment relationship rather it keeps the relationship in abeyance pending final termination or resumption of the normal employer/employee relationship. See: Longe v. First Bank Plc [2010] 6 NWLR (Pt.1189) SC1; Adekunle v. UBA Plc (2016) LPELR-41124 (CA).Thus, as a staff undergoing suspension still remains an employee and is entitled to remuneration even if withheld during the period of the suspension. This is the intendment of S.17 (1) Labour Act Cap.L1 Laws of the Federation 2004.I so hold. I have taken the same position in West African Cotton Co Ltd v. Oscar Amos (unreported Suit No. NICN/YL/10/2015, Judgment of which I delivered on 13^th June 2018).

Even Paragraph 21.4 of the Employee Handbook (exh. CV6) dealing with Suspension, alluded to suspended staff’s entitlement to payment of full pay if exonerated from allegation leading to the suspension. As canvassed by learned Defendant’s counsel, by paragraph 21.4 (c), payment of salary to staff undergoing suspension is at the discretion of the Defendant’s management, on the basis of which the Claimant was denied salary for the 10 months of his suspension, yet, the Defendant failed to observe the provisions of the paragraph21.4 (a) which states that: “All cases of suspension will be treated with dispatch”. 1n my view, 10 months suspension without pay cannot be said to be ‘with dispatch’. I so hold.

Having declared the Claimant’s dismissal wrongful and cancelled the effect thereof, the claimant’s right to be paid his seized salaries and allowances during the suspension period revives forthwith. In the circumstance, this aspect of relief (iii) succeeds to the extent that the Defendant is hereby ordered to pay the Claimant the sum of N13, 552.990.45, representing the Claimant’s salaries (June 2009-March 2010 in the sum of N631, 716.97 per month, and other allowances covering the same period (2009-2010). Since the employment is finally determined and the Defendant cannot be reinstated due to the status of the employment being master/servant relationship, as a consequential relief, the Defendant is further ordered to compute and pay to the Claimant his earned terminal benefit having served the Defendant meritoriously from Sept.1996 to April 2010, a period of about 14 years, rising from the position of Executive Assistant II, to Senior Manager and pioneer Branch Head of the Defendant Bank’s Moloney Branch, Lagos. I so hold.

As part of this relief (iii), the Claimant claims for interest on the owed salaries and allowance ‘at the rate of 21% per annum till judgement is delivered and thereafter at 10% on the judgement sum till final liquidation of the judgement’. Thus, the Claimant is seeking award of both pre-judgment and post judgment interest rate on the substantive sum awarded in favour of the Claimant. I had held in Alh.SalehBuba v. Adamawa State University Consultancy Services Ltd (Unreported Suit No. NICN/YL/02/2017, Judgment of which was delivered on May 17 2018), thatwherethe Claimant fails to make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages, that is required to not only be specifically pleaded but to also provide sufficient evidence to ground its award, the claim for pre-judgment interest cannot be sustained.

In Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F,the Supreme Court held that: “where interest is claimed, it must be proved before it can be granted”. I therefore find and hold that the claim for pre-judgment interest having not been proved is accordingly refused and dismissed.

On claim for post-judgment interest, award of post-judgment interest is guided by the Rules of the Court and based on the discretion of the court upon review of the circumstances of the case, and it would be presumptuous, speculative and role-swapping, for a party to fix the rate of post-judgment interest claimed. Accordingly, same is hereby discountenanced. I so hold.

Relief (iv) prays for an “Order allowing the claimant an opportunity to resign his appointment with the Defendant from the date judgement is delivered in this suit”. Since the instant employment governed by common law rule of master/servant,making an order allowing the Claimant to return back to the Defendant’s office to enable him resign, would amount to foisting a servant on an unwilling master, as rightly submitted by the learned Defendant’s counsel.

It remains the same effect even though the Claimant is praying to return back to the Defendant temporarily for the purpose of resignation. Incidentally, having declared his dismissal wrongful and quashed the adverse consequence thereof, the Claimant has no more need even to return to the previous employment for resignation upon determination of the employment. Accordingly, this relief (iv)fails, and it is hereby declined and dismissed.

Relief (v)seeks for “General damages against the Defendant in the sum of N10, 000,000 (Ten Million Naira) for the pain and suffering occasioned on the Claimant upon his wrongful dismissal by the Defendant”.I have earlier taken the position that where an employer wrongly dismissed his employee in an employment governed by the common law master/servant, as in the instant case, the remedy can only be assuaged in damages and nothing more. See: U.B.N v. Ogboh [1995]2NWLR (Pt.380)647. The measure of damages for wrongful dismissal has been guided by two regimes of legal principles for award of damages in employment claims; one limiting the entitlement to the period of notice not complied with as (in Olatunbosun v. N.I.S.R Council (1988) 1NSCC (1025)188)and the other that recognizes the sensitivity of the sector of the economy involved and the stigma attached to dismissed employee (as in British Airwaysv. Makanjuola[1993]8NWLR (Pt.309)276).

Given the circumstances of this instant case, I find that it is suitablefor application of the principles in the Makajuola’s case,for the fact that the banking sector is a very sensitive sector of the economy and a regulated industry where a dismissal from employment for misconduct is a dent on the integrity and employability of the dismissed employee, who is left with the stigma and bears the challenge of career cleansing.In the Makajuola’s case (supra) @P.289 Paras.C-D, it was held that:

“The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of the alleged malpractice. If wrongful termination of employment is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of required notice. But if it is due to the later i.e malpractice, then such a termination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period the notice was required”.

In his pleadings, Witness Statement on Oath and oral testimony at the trial, the Claimant testified, and the Defendant did not dispute, how he served the Defendant for about 14 years meritoriously, received commendation for excellent services and rose to the rank of Senior Manager and pioneer Head of Moloney Branch Lagos. He was dismissed after undergoing 10 months without pay, which dismissal later turned out to be declared wrongful for being unjustified, and exercised contrary to the extant condition of service with the Defendant and in breach of the natural justice rule of fair hearing.

In the circumstance, this relief (v) succeeds, to the extent that I award the sum of N2,000,000.00 (two million naira) as damages in favour of the Claimant against the Defendant for the wrongful dismissal. I so hold.

For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:

Relief (i) succeeds. It is hereby declared that the dismissal of the Claimant from his employment by the Defendant without fair hearing and observance of due procedure in the terms of his employment is wrongful.

Relief (ii) is declined as unnecessary having been subsumed under the effect of wrongful dismissal so declared in Relief (i).

The aspect of Relief (iii) on Special damages regarding the Claimant’s seized salaries and allowances during his suspension periodsucceeds to the extent that the Defendant is hereby ordered to pay the Claimant the sum of N13, 552.990.45, representing the Claimant’s salaries (June 2009-March 2010 in the sum of N631, 716.97 per month), and other allowances covering the same period (2009-2010).

As a Consequential Relief, the Defendant is further ordered to compute and pay to the Claimant his earned terminal benefit having served the Defendant meritoriously from Sept.1996 to April 2010, a period of about 14 years, rising from the position of Executive Assistant II, to Senior Manager and pioneer Branch Head of the Defendant Bank’s Moloney Branch, Lagos.

The aspect of Relief (iii) dealing with Special damages for period after determination of the employment is hereby discountenanced and dismissed.

The aspect of Relief (iii) dealing with claim for Pre-Judgment and Post-Judgment interest fails and is hereby discountenanced and dismissed.

Relief (iv) fails, and it is hereby declined and dismissed.

Relief (v) succeeds, to the extent that I award the sum of N2,000,000.00 (two million naira) as damages in favour of the Claimant against the Defendant for the wrongful dismissal.

I award N500,000 cost in favour of the Claimant against the Defendant.

Monetarypayment in this Judgment shall be paid by the Defendant to the Claimant within one (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.

Judgment is entered accordingly.

———————————————–

HON. JUSTICE N.C.S OGBUANYA

JUDGE

09/5/19