MRS MATILDA IDIALU -VS- UDA MICRO-FINANCE BANK & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DELIVERED TODAY 22^ND JANUARY, 2020

BETWEEN

SUIT NO: NICN/BEN/04/2017

MRS MATILDA IDIALU CLAIMANT

UDA MICRO-FINANCE BANK DEFENDANTS
MR GREGORY I. OKOSUN

REPRESENTATION:

D.E Adodo Holding the brief of Julius Abure for the Claimant

L.E. Aghawegehe for the Defendants

JUDGMENT

This suit was initiated on the 27^th March, 2017 vide a complaint by the claimant, accompanied by the Statement of Facts, depositions on Oath, list of witnesses and documents to be relied upon. The originating processes were later amended by an order of court of 13^th December, 2017. The claimant vide his extant complaint filed on the 13^th of December, 2017 claims against the defendants the following reliefs:

A declaration that the procedures followed by the defendants in dismissing the appointment of the claimant with the 1^st defendant is inconsistent with the procedures laid down by the Bank’s Regulations/staff manual
A declaration that the dismissal of the claimant’s appointment with the 1^st defendant vide a “Disclaimer’’ publication dated 11^th day of January, 2017 is inconsistent with the provisions of the Bank’s Regulation/Staff manual
An order on the 1^st defendant to pay the claimant the sum of N190, 520 being claimant’s unpaid half salary for the months of September, October, November and December, 2016.
An order on the 1^st defendant to pay to the claimant the sum of #95, 260 being one-month salary for January in lieu of notice.
An order on the 1^st defendant to pay the claimant the sum of #85, 000 (Eighty-Five thousand Naira) being her annual leave allowance.
An order on the defendant to pay the claimant the sum of #1, 170, 382. :50 (One million One hundred and Seventy thousand Three hundred and Eighty-Two Naira, fifty kobo) being her contribution to the staff trust fund retirement savings account.
An order on the 1^st defendant to pay the claimant the sum of N1,500,000 (One Million Five Hundred Thousand Naira) being money deducted from her salaries since her employment as staff monthly contribution.
An order for the payment of the sum of N20,000,000 (Twenty Million Naira) to the claimant as general damages for unlawful dismissal from the service of the 1^st defendant.
Ten percent interest on the judgment sum until the date of liquidation.

The claimant’s case is that she was employed by the 1^st defendant in year 2001 and her appointment was confirmed vide a letter dated 24^th January 2002. The claimant averred that while working for the defendants, she was dutiful in the performance of her duties and this resulted in her been promoted as head, credit and marketing in August 2014. The claimant stated that on 30^th September, 2016, she received memo asking her to explain four loan facilities advanced to some customers, and responded to same by exonerating herself. The claimant stated that later to her surprise on the 11^th January, 2017, when she reported for work, the security men of the 1^st defendant, on the instruction of the 2^nd defendant, refused to allow her entry into her office, she added that this was done without any prior notice of termination of her employment. The claimant also averred that she saw a publication by the 1^st defendant, titled ‘’Disclaimer’’ which was to the effect that she no longer works with the 1^st defendant, pasted at strategic places in the bank premises.

The claimant asserted that her duty schedule did not include granting loans of such magnitude to anyone, as only three directors of the bank retains such a power i.e. the 2^nd defendant, Mr. Paul Agboninifo, and Bishop Igbinose, and the loans were duly authorized and approved by them. The claimant also stated that it was when the accounts were alleged to be non-performing that, the 2^nd defendant denied approving the loan and tagged them as unauthorized.

The claimant alleged that the 2^nd defendant was only trying to deceive the board of directors by tagging the loans as unauthorized, even when all the while he was personally servicing the loans. The claimant stated that the 2^nd defendant had paid a total of N10,000,000. 00k in his bid to redeem the loans in question.

The claimant averred that the 2^nd defendant brought the applicants to her department with the instruction that their applications be processed expressly as the applicants are known to him. The claimant stated further that when the issue of non-performance of these accounts came up, the 2^nd defendant called all the staff and told them there’s no fraud in the bank, that no one has committed any fraud and threatened to sack anyone who said anything to the contrary.

The claimant stated that sometimes in August, 2016, the 2^nd defendant demanded for the files on the four loans and the claimant who sensed some foul play, hurriedly copied the files before handing them over to the 2^nd defendant, she stated that the 2^nd Defendant till date has refused/neglected to return the files and denied approving the loans. The claimant added that when the managing director inquired about the loans, she duly informed him that the 2^nd defendant personally brought the applicants, who he claimed were his people.

It is the claimant’s statement also that on 11^th January, 2016, she was informed that some policemen came to her house, but met her absence. On finding out about the visit, she protested to the Commissioner of Police in Benin who took over investigation of the matter and indicted Mr. Paul Ehiarekhian Okosun (the account opening officer who also happens to be the 2^nd defendant’s relative), Mr. Gideon Ose Eromon and the 2^nd defendant. Upon seeing the direction of the investigation, the 2^nd defendant convinced the board of directors to write a letter discontinuing the investigation.

The claimant averred that the procedure laid down in the bank’s staff manual which is the applicable conditions of service governing her employment with the 1^st defendant, was not followed in the process of her dismissal. The claimant stated that all throughout the period of her travail, the 1^st defendant refused to pay her monthly salary of N95,000.00k, (Ninety-Five Thousand Naira) as she was only paid half of her salaries for the months of September, October, November and December, 2016. Also the 1^st defendant has refused, neglected and failed to pay all her entitlements and emoluments, inclusive of her contributions to the bank’s contributory pension scheme in the sum of N1.5 Million thereafter. Wherefore the claims against the Defendants as aforestated.

The defendants filed their amended joint statement of defence on 21^st November, 2018, wherein they denied all the averments in the statement of facts as if same were set out and denied seriatim.

The defendants’ contention is that the claimant failed to show up for work for over a month, hence the disclaimer that was published by the 1^st defendant. They contended further that the claimant was asked to make available to the Customer Services Officers, complete particulars of the four accounts; i) Hope, ii) Ivie, iii) Purpose and iv) Osehi, which were opened at her instance with incomplete documentation. The defendants added that the claimant failed to accede to this request because of the fraud she committed in conjunction with the other staff of the 1^st defendant in respect of the four accounts. They averred that the claimant created fictitious accounts and signed disbursement vouchers in respect of same as manager.

The defendants also stated that it is a policy of the 1^st defendant that a customer must have maintained an account with the 1^st defendant for at least three months before they can enjoy any facility from the 1^st defendant but the claimant breached this policy in relation to those four accounts. They added that it is the duty of the 1^st defendant’s manager and the claimant to verify the claims of applicants for loans by appraising same, before sending them to the directors for approval, but the claimant and her cohorts misled the 1^st defendant into granting the loans in question, premised on the belief that the claimant had done her job properly.

The defendants stated that when the claimant and the then manager of the 1^st defendant, Mr. Oizemede Omage, were asked to disclose the owners of the stated accounts, they vehemently refused and the claimant was thereafter queried in respect of her role in the N22, 000, 000k fraud in the bank, but instead of disclosing the owners of these accounts when the claimant appeared before the board of directors after she was issued with the query, she, rather promised to ensure the re-payment of the loans.

It is the defendants’ contention that the claimant in a bid to cover her atrocities and prevent the 1^st defendant from knowing the identity of the people behind the accounts, removed the files relating to them. They averred that the 1^st defendant waited in vain for the repayment of the loans as promised, and thereafter the 1^st defendant classified the accounts as non-performing whilst the Claimant was redeployed to Debt Recovery Unit to recover the said loans. The defendants also averred that the claimant in connivance with Mr. Oizemede Omage, granted another facility to one Johnbull Odion and used other self-help group names.

The defendants denied the allegation that the 2^nd defendant instructed the security of the bank to prevent the claimant from entering her office and stated that it was the claimant who abandoned her employment. They also pleaded that the disclaimer notice on the claimant was put up after discovering that the claimant and Mr. Oizemede Omage were going about telling the 1^st defendant’s customers that the Bank was about to collapse and advising customers to withdraw their money. They also denied that the 2^nd defendant instructed the claimant to process the applications of the four accounts on the ground that they were personally known to him.

The defendants denied the allegations against the 2^nd defendant that(i) he called the staff of the 1^st defendant and told them that there was no fraud in the bank(ii) called the claimant privately not to tell anyone about the transaction(iii) and collected the files on the said loans from the claimant.

The defendant averred that the fraud was reported to the police at Ekpoma, but the claimant evaded arrest and wrote a petition to the Commissioner of Police in Benin City, and the Police were as yet to conclude their investigation before the 1^st defendant wrote a petition to the Economic and Financial Crimes Commission for the proper investigation of the case. The defendants further denied that the 2^nd defendant and some other persons were indicted by the police for fraud.

The defendants stated that the 1^st defendant is not owing the claimant any entitlement, and she is not entitled to a month salary in lieu of notice, given that she abandoned her employment.

The claimant filed a consequential reply to the amended joint statement of defence on 11^th February, 2019, wherein she contended that she was never absent from her duty until she was prevented from entering her office on 11^th January, 2018 sic on the 2^nd defendant’s instruction. She stated further that she signed the attendance register everyday up to the 11^th January, 2017, hence she was paid her December 2017 sic Salary.

It is the claimant’s contention that she did not create fictitious accounts and was not in charge of account opening in the Bank. The claimant stated that the person in charge of opening of accounts is Mr. Gideon Eromon who admitted before the police that he deleted the passports in respect of the four accounts, and added that it is not part of her schedule of duty to sign payment vouchers and she did not at any time sign payment vouchers to disburse funds to the four accounts, she continued that there was no breach of banking rules and regulations in the transaction in question.

The claimant also averred that the people behind the said accounts have written to the 1^st defendant to make arrangements for repayment of the said loans, and stated further that in ‘’Group Loan’’, the applicant need not have operated the account for three months, before applying for a loan, all that is required is for the applicant to pay his/her quota, she thereafter cited some clients who were granted loans without fulfilling the requirement.

The claimant therefore restated that she is entitled to the reliefs sought.

Trial commenced in this suit on 27^th March, 2019 with Oizemede Omage testifying as CW1, he adopted his statement on oath and was cross examined. CW1’s signature specimen was admitted in evidence and marked Exhibit MD1. The claimant later testified as CW2, she adopted all of her statements on oath and tendered documents which were admitted in evidence and marked Exhibits MD2-MD7, she was duly cross-examined during which her signature specimen was admitted in evidence and marked Exhibit MD8. The claimant subsequently closed her case and this matter was adjourned to 30^th May, 2019 for defence. The defence opened their case on 30^th May, 2019 with Mr. Gregory I. Okosun testifying as DW1, he adopted his statement on oath and was cross-examined. Mr. Ayo Collins testified as DW2, he adopted his witness statement on oath and was also cross-examined. The defence closed their case and this matter was adjourned for adoption of final written address. Learned Counsel on both sides eventually adopted their final written addresses on 29^th October, 2019, and the matter was adjourned for judgment today.

In his final written, learned counsel to the defendant submitted four issues for determination, viz:

1) Whether or not the claimant has proved that she was unlawfully dismissed from the employment of the 1^st defendant.

2) Whether or not from the evidence before this Honourable Court, it can be said that the claimant’s trustfund retirement savings is with the 1^st defendant for which 1^st defendant is required to pay to the claimant

3) Whether or not claimant has proved that the 1^st defendant deducted another fund monthly from the claimant’s salary as staff pension fund which it manages on behalf of the claimant

4) Whether or not the claimant is entitled to the sum #20,000,000 as general damages for unlawful dismissal.

On the first issue, counsel submitted that the claimant has failed to prove that she was wrongfully dismissed by the 1^st defendant. He argued that aside Exhibit MD6, there is no other document before the court suggesting that the claimant was indeed dismissed. He argued that the claimant had alleged that she was prevented by security men from entering her office on 11^th January 2017, and that she stated in paragraph 2(a) of her consequential amended reply to the joint statement of defense and paragraph 3(a) of her additional statement on oath that she was paid her December 2017, (sic) salary and this implies that the claimant worked till December, 2017 (sic), thus by necessary implication, she has no justification for filing this action in March, 2017,when she was still in the employment of the 1^st defendant till December, 2017(sic) averred by her. Thus, her evidence he argued is contradictory and should not be believed, he added that the contradictory statements of the claimant makes her unreliable and unbelievable and since the court cannot pick and choose from the evidence of the claimant, he urged the court to hold that the claimant is not a reliable witness. He cited the case of Emeka v Okoroafor & Ors. (2017) 268 L.R.C.N 132 @ 223 EEJJ & 234A.

Learned counsel argued further that where an employee alleges wrongful dismissal, it rests on such an employee, to place before the court, the terms of the contract of employment and how the said contract was breached. He cited Okomu Oil Palms Co. Ltd. v Iserhienrhien (2001) 85 LRCN 873@ 882HI & 883A Ratio 1.

Learned Counsel argued that Exhibit MD6 cannot be said to be an actual dismissal and the word dismissal cannot be read into it since it is not expressly stated. He also argued that assuming without conceding that Exhibit MD6 is a dismissal of the claimant’s employment, it cannot be said to be unlawful as it was issued by the 1^st defendant after the claimant had abandoned her duty for over a month and had gone about to spread lies about the 1^st defendant. The defence submitted that by the provision of Paragraph 5.1(b) and (c) of Exhibit MD2, the claimant was guilty of grave misconduct for which she can be summarily dismissed by the 1^st defendant as her actions has destroyed the confidence that should ordinarily exist between an employer and employee. He cited Eze v Spring Bank Plc. (2012) 203 LRCN 157 @ 1876JJ Ratio 2, and urged the Court to resolve issue one in favour of the defendants.

On issue two, counsel contended that the claimant tendered Exhibit MD7 in respect of the pension scheme for which the 1^st defendant made deductions from her salary and she agreed that this money is being managed by Trustfund Pension Administrators. This shows that the money in question is not in the 1^st defendant’s custody and since the 1^st defendant cannot give what it doesn’t have, He urged the court to resolve this issue in favour of the defendants

On issue three, it was the submission of counsel that the burden of proof of the fact that another deduction was being made from her salaries is retained by the claimant and she failed to provide any document to establish this assertion. He stated further that the court cannot be expected to give an order that is indefinite, hence he urged the court to hold that the claimant has failed to prove her case and resolve issue three in favour of the defendants.

On issue Four, it was argued by counsel that on the assumption that the claimant’s dismissal is held to be unlawful, the claimant is not entitled to the N20,000,000.00k claimed as general damages but a month’s salary in lieu of notice. He stated that this is by the provision of paragraph 2.4 of Exhibit MD7 and relied on the case of Ifeta v SPDC (Nig.) Ltd. (2006) 142 LRCN 2664 @@ 2695 FK Ratio 11.

Counsel also argued that the claim for N85,000.00k as annual leave allowance, was not pleaded and no evidence was led in this regard, to the claimant. He submitted that the claimant having failed to lead evidence that she is entitled to the stated sum is deemed to have abandoned the relief.

Finally, counsel concluded that the claimant is not entitled to any financial benefit from the 1^st defendant having been dismissed and urged the court to so hold.

Claimant’s counsel filed his final written address on 23^rd September, 2019. He distilled 6 issues for determination, viz;

1) Whether from the facts of this case, the allegation of crime (fraud) to wit (a) creations of fake and fictitious accounts with fake passports, addresses and phone numbers, (b) disbursing loans to these fake accounts and signing the disbursement vouchers, were established against the claimant to warrant the summary dismissal of her employment with the 1^st defendant.

2) Whether there was any evidence to show that the claimant was absent from duty for one month proceeding the summary dismissal of her employment on the 11^th day of January, 2017.

3) Whether the disclaimer publication affectively determined, terminated and effectively brought the claimant’s employment to an end.

4) If the answer to issue 3 is in the affirmative, then what is the effective date of the dismissal of claimant’s employment.

5) Whether the dismissal of the claimant’s employment was done in accordance with the terms and conditions of the contract of employment.

6) What is the quantum of damages in a case of wrongful dismissal bordering on criminal allegation.

On the first issue, learned counsel contended that the defendants have failed to prove the allegation of fraud levied against the claimant to warrant her dismissal. he argued that the claimant averred and led evidence to establish that she is not the account opening officer and no account was opened at her instance. He added that the claimant has established that she does not sign payment vouchers or carry out the requisite appraisal of loan applications. He continued further that despite the depth of the assertions by the claimant, the defendants did not plead or lead evidence to counter same. He therefore urged the court to hold that these assertions are unchallenged and uncontroverted and urged the Court to accept same as true.

Counsel contended further that having raised the allegation of fraud, which is a crime, against the claimant, it falls on the defendant to prove same beyond reasonable doubt. He drew the attention of the court to the fact that despite the fact that the claimant named the persons who were directly responsible for opening of account and appraisal of loans, the defendants failed to call them in proof of the criminal allegation against the claimant. Counsel submitted that the only logical inference from the defendants’ failure to call these people as witnesses is that their evidence would be adverse to the defendants’ case. He cited Section 167(d) of the Evidence Act, 2011. He added that DW1 is not a reliable witness, having denied knowledge of the officer in charge of opening of new accounts in the 1^st defendant, despite the fact that he is in charge of day to day affairs of the 1^st defendant. He submitted in the light of the foregoing that the defendants have failed to prove the criminal allegation against the claimant and urged the Court to so hold.

On issue two, learned counsel submitted that the defendants have failed to establish the assertion that the claimant abandoned her duty. He argued that the claimant’s averment and evidence is that she never abandoned her work and she was at her duty post till 11^th January, 2017, when she was denied access to her office, this account he stated was corroborated by Oizemede Omage (CW1) in his testimony. He also drew the attention of the court to the fact that a notice to produce the staff attendance book covering November 2017-January 2018 (sic) was filed and served on the defendants, but they failed to comply with this notice because they know that the Register will confirm the assertions of the claimant. He argued that this piece of evidence was not challenged nor controverted by the defendants and urged the court to accept it as true. He cited Mobil Prod. (Nig.) Unltd. v Udo (2008) 36 WRN 53 at 90.

Learned Counsel also contended that having averred that the claimant was absent from her duty post for over a month preceding her dismissal, the onus of proof on that fact rests on the defendants. He relied on Section 31C and 132 of the Evidence Act, and urged the court to resolve this issue in favour of the claimant.

On the fourth issue, learned counsel submitted that a close look at Exhibit MD6 reveals and fixes the effective date of termination of the claimant’s employment as 11^th January, 2017. He argued further that documentary evidence is the best form of evidence and the content of a document cannot be varied by oral evidence. He therefore urged the court to hold that the claimant’s employment was terminated on 11^th January, 2017.

In arguing the fifth issue, counsel submitted that the claimant’s employment was terminated in breach of the terms contained in the staff manual i.e. Exhibit MB2 (sic). Claimant’s counsel admitted that the relationship between the parties is that of master/servant, and the 1^st defendant is at liberty to terminate the claimant’s employment for good or bad or no reason at all but this must be done in accordance with the terms of the contract of employment, otherwise it will be invalid. He relied on Gateway Bank v Abosede (2002) 1 WRN 135 at 156, and argued that the defendants did not comply with the provisions in Exhibit MB2(sic), especially S. 5.0, 5.9, 5.10, 5.12 and 5.13. He submitted that the defendants did not lead any evidence to show compliance with Exhibit MD2, and, their bare assertions in the pleadings, especially on the allegation of fraud, is not enough.

Learned counsel also argued that the claimant’s dismissal will still not stand if it is hinged on the alleged absence from work because the defendants failed to prove that she was indeed absent at those times. He consequently urged the court to hold that the claimant’s employment was not properly terminated.

On the quantum of damages in a case of wrongful dismissal bordering on criminal allegation, it was submitted by counsel that having established a case of wrongful dismissal against the defendants, the claimant is entitled to the reliefs sought. He placed reliance on the case of Nigerian Gas Co. Ltd. v Dudusola (2005) 18 NWLR (Pt. 957) p. 292 at 300 R. 1, and submitted that the measure or assessment of damages, by the general position of the law, is what the claimant would have earned had the contract been determined as stipulated in the contract of employment, however he argued that this case falls under the exception that where the wrongful dismissal is as a result of an alleged malpractice, it carried with it a stigma on the character of the employee for which the employee shall be entitled to substantial damages far beyond her salary for the period the notice was required. He cited the case of British Airways Ltd. Makanjuola (1993) 8. NWLR (Pt. 311) p. 276, and continued that the defendants’ publication in Exhibit MD6 portray the claimant in a bad light and casted a slur on her integrity while eroding her chances of getting another job especially in the banking industry. He submitted on this ground that the claimant is entitled to substantial damages for the damage done to her character.

In conclusion, counsel submitted that; (1) the defendants did not establish the allegation of fraud against the claimant and did not prove that the claimant disbursed loans or sign any disbursement vouchers, (2) the defendants could not show that the claimant went about casting aspersion on the integrity of her employer, (3) the defendant could not prove that the claimant was absent from duty for one month preceding her dismissal from 1^st defendant’s employment on 11^th January, 2017, (4) the ‘disclaimer’ publication had the effect of dismissing the claimant and seriously dented her image, (5) the effective date of the claimant’s dismissal is 11^th January, 2017 as stated in the ‘disclaimer’ (6) the claimant was not properly dismissed having regards to the terms and conditions guiding her employment.

In response to the address of the defendants on the perceived contradiction in the evidence of the claimant, learned counsel submitted in adumbration, after adopting his final address, that the claimants averment in paragraph 2(b) of the consequential Reply to the amended joint statement of defence filed 11^th February, 2019, and deposition in paragraph 3(b) of the claimant’s additional witness statement on oath, that she received her salary for December, 2017 from the 1^st defendant, is a typographical error, and the intended date in that paragraph is December, 2016, as all evidence adduced at trial and the facts in this case points to the fact that the claimant was dismissed in January, 2017 and hence could not have been with the 1^st defendant in December, 2017. He finally urged the court to grant the claimant’s reliefs

I have well considered the pleadings and evidence led by both parties in this case, and I have listened with keen attention to the witnesses called and scrutinized the Exhibits tendered including the final submissions of counsel in this case. I have thereafter resolved that two issues will effectively determine this case to wit;

1) Whether or not the claimant’s appointment was properly determined.

2) Whether or not the claimant is entitled to the reliefs sought

It is very important to resolve the preliminary issues that arose in this case before delving into the issues for determination. It is on record that the claimant in paragraph 2(b) of her consequential reply to the Amended joint statement of defence filed on 11^th February, 2019, averred that she was paid her salary for “December 2017”. This was restated in paragraph 3 (b) of her statement on oath deposed to on 11^th February, 2019. The defendants raised this issue in their final address, pointing out, that this assertion clearly implies that the claimant was working at the 1^st Defendant and received her salary as at December 2017, while in another breath she also stated that she was dismissed by the 1^st defendant in January, 2017, thus making her evidence contradictory and unreliable. The claimant’s counsel on his own part addressed the issue and stated that the recurring “December, 2017” is a typographical error, and that the intended date in the aforementioned paragraphs is December, 2016.

I have found it pertinent to examine all the processes, evidence and arguments canvassed before this court to reach a finding on this issue, and I find that the date intended is “December, 2016” as this is in line with the evidence adduced in this case by both parties in this suit. It has been held that the object of Courts is to decide the rights of parties, not to punish them for mistakes they make in the conduct of their cases. Thus, if a Court is minded that the way in which a party has framed his case will not lead to a decision on the real matter in controversy, it is empowered to correct such errors, if it can be done without injustice. See the case of Taiwo Okeowo & Ors.v Mrs. D.A Migliore & Ors. (1989) All N.L.R 282. This court is minded that it cannot decide on the real object of controversy in this suit if these errors are allowed to stand, therefore, I find that the date in question is a typographical error and same is hereby to be treated as December, 2016”. Consequently, the defendants’ argument on this issue is hereby discountenanced. I so hold.

The 1^st issue to be resolved in the determination of this case is whether the claimant’s appointment was properly determined, and this will be divided into two sub-issues; i, whether the claimant abandoned her employment ii, whether the claimant’s appointment was validly terminated/dismissed. On the first sub-issue, I find that the claimant in this case pleaded and led evidence to the effect that on 11^th January, 2017, she was prevented from entering her office by the security men who were acting on the instruction of the 2^nd defendant and that she saw a disclaimer i.e. Exhibit MD6 pasted in the premises of the 1^st defendant, notifying the public that she has ceased to be a staff of the 1^st defendant from that day, this testimony was corroborated by CW1 in his evidence before this court. The defendants on the other hand pleaded and led evidence that the claimant was absent from work for over a month before the 11^th day of January, hence the disclaimer, they also denied the assertion that the 2^nd defendant instructed the security personnel to deny the claimant access to her office. The defendants added that the activities of the claimant in connivance with Oizemede Omage (CW1) necessitated the disclaimer put up by the 1^st defendant. The conclusion to be drawn from the above evidence is that the claimant was indeed prevented from entering her office by security personnel of the 1^st defendant on the 11^th January 2017, as it can be deduced that she would not have been allowed entry based on the content of Exhibit MD6 i.e. a disclaimer. Also, it is also germane to point out from the record, that, the claimant filed a notice to produce among other things, the attendance register of the 1^st defendant from November 2016 to January 2017. It is on record that the defendants failed to produce the register and did not deem it fit to proffer any reason for that failure. The provision of Section 167(d) of the Evidence Act 2011, will therefore be applicable in this instance, and the court is allowed to conclude that the production of the register will be unfavorable to the case of the defendants. Furthermore, the position of the law is that a person who asserts a particular fact bears the burden to proof same. This is explained by the maxim ‘’ei qui affirmat non ei qui negat incumbit probation’’ which means the burden of proof lies on one who alleges, and not on him who denies. See the case of Dibal v Eguma (2016) LPELR-41236 and Section 131 of the Evidence Act, 2011. The defendants in this case have alleged that the claimant was absent from work for over a month before 11^th January, 2017 and that the claimant and CW1 were circulating false news and advising customers to withdraw their deposits from the Bank while questioning the financial standing of the 1^st defendant. These assertions of the defendants were however not backed up with credible evidence, as no evidence was led on them, hence they are unproven. Consequent upon the above, I find in favour of the claimant that she did not abandon her employment with the 1^st defendant, but was indeed denied entry to the premises based on Exhibit MD 6. I so hold.

The second sub-issue is, whether the claimant’s employment was validly terminated/dismissed. In order to resolve this, it is vital to consider and determine the meaning and nature of dismissal vis-à-vis termination in Labour law. The term ‘’dismissal’’ is said to mean deprivation of office, the fact or process of being fired from employment and/or a written or spoken statement of such act. Dismissal is by its nature punitive and depending on the contract of employment very often entails a loss of terminal benefits. See the case of Alhaji M.K. v First Bank of Nigeria Plc. (2011) LPELR-8971 (CA). I have found that the evidence of the claimant to the effect that she was denied access to her office on 11^th January, 2017, is credible and this connotes a deprivation of office. Furthermore, the disclaimer, though not personally addressed to the claimant, is by its nature a communication of the discontinuance of the claimant’s employment with the 1^st defendant. The first paragraph of Exhibit MD6 reads;

‘’This is to notify the general public that Mr. Oizemede Omage former Manager, and Mrs. Matilda Idialu, former Head of Credit and Marketing Department at Uda Microfimamce Bank Ltd, Ekpoma Branch whose passport photographs appeared above ceased to be members of staff of the bank since 11^th January, 2017’’.

Termination of employment on the other hand connotes the end of an employment, whilst the employee will be entitled to his/her terminal benefits. The content of Exhibit MD6 and the evidence of the defendants clearly leads to the conclusion that the claimant’s employment did not terminate on a friendly note, and the position taken by the defendants before this court that the claimant is not entitled to any terminal benefits clearly speaks louder than words, and reiterates the fact that the claimant was actually dismissed by the 1^st defendant via Exhibit MD6 on 11^th January, 2017. This is in line with the chain of events that led to the dismissal, thus it is clear that it is punitive wherein the claimant is supposed to lose her terminal benefits. I am in no doubt therefore, that the claimant was dismissed by the 1^st defendant, vide Exhibit MD 6 on the 11^th of January, 2017. I so hold.

On the propriety of the claimant’s dismissal, it is the uncontroverted position of the law that an employee seeking a remedy for wrongful dismissal as in the present suit, bears the onus to prove; (a) the contract of employment (b) the terms of the contract of employment, and (c) in what way or manner the said terms were breached by the employer. See UBA Plc. v Oranuba (2013) LPELR-20692 (CA). The claimant in pursuance of the above pleaded Exhibits MD2 (staff manual of the 1^st defendant) and MD5 (letter of confirmation of appointment dated 24^th, January, 2002, and led evidence that she was dismissed by the 1^st defendant in breach of the provisions of Exhibit MD2.

It is a common principle of law that in a master/servant relationship, an employer is not bound to give reasons for terminating his employee’s employment but where he does, the burden rests on him to establish such reasons. See the case of Institute of Health ABU Hospital Management Board v Anyip (2011) LPELR-1517(SC). Learned defence counsel has argued that the claimant’s dismissal was a result of her abandonment of her employment for over a month and the fraud she committed in respect of some loan accounts while in the employment of the 1^st defendant. It is my finding as stated earlier in this judgment, that the defendants did not prove this issue of abandonment of her employment, I therefore find it unnecessary to repeat my findings on this again. However, on the allegation of fraud, it is the law that an allegation of crime in criminal or civil cases must be proven beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011 and the case of UBA Plc. v Ogochukwu (2014) LPELR-24267 (CA).

The defendant alleged and led evidence that the claimant created fictitious accounts with fake passports, addresses and phone numbers, and signed as the manager while disbursing loans to certain applicants, and in doing so violated the 1^st defendant’s manual of operations. The claimant in reply contested these allegations and led evidence that she was not in charge of opening of accounts, and did not approve loans or sign payment vouchers, she stated that her duty is only to recommend loan applicants to the manager and added that verification of loan applications were done by marketers working under her. DW1 in his evidence before this court admitted under cross-examination that the claimant is not in charge of approval of loans and that the power to approve loans reside with him along with other directors of the 1^st defendant. DW1 stated that all loan applicants must open accounts with the 1^st defendant and that relevant information are fed into the computer by another officer of the Bank. It is part of the claimant’s deposition in paragraph 3 (o) of her statement on oath dated 4^th July, 2017 that the people behind the accounts in dispute had written to the 1^st defendant on the mode of rescheduled payment and I find that this piece of evidence was not contested by the defendant.

The cumulative effect of the above evidence creates a gigantic hole in the allegation of fraud raised by the defendants against the claimant. I find that if indeed evidence was found by the defendants on the allegation of fraud, this borders on criminal allegations that needed to be proved beyond reasonable doubt. There is no evidence before me that the claimant in this case was ever charged for fraud or is under any criminal investigation for the alleged fraud, based on this reasoning, I find that the defendant has failed woefully to prove the allegation of fraud in the instant case beyond reasonable doubt. This leads to the inexorable conclusion that the claimant’s dismissal is not in accordance with Exhibit MD2, and premised on this ground, I find and hold that the dismissal of the claimant by the defendant is wrongful.

On issue two, the claimant is seeking the payment of a sum of N95, 260.00k as her one-month salary in lieu of notice. It is trite law that the remedy for an employee who successfully claims for wrongful dismissal is in damages which is assessed based on what the employee is entitled to in line with the conditions of service, i.e. salary in lieu of notice. See Olabode Adewunmi v Nigerian Eagle Flour Mills. Paragraph 2.4 of Exhibit MD2 allows either party to terminate the contract of employment by giving one month’s notice or salary in lieu of notice to the other party. In respect of this claim, I find from the record that the claimant filed a notice to produce on 26^th February, 2018 requesting the defendants to produce the statement of account of the claimant for Account number 12103000028 for December, 2016 and same was served on the defendants on 1^st of March, 2018, the defendants however failed to produce the documents in question, the position of the law is that, once a notice to produced is served on a party, and he fails to produce the documents, secondary evidence of such documents can be tendered by the other party see Andrew Venn v Access Bank Plc (2014) LPELR-24077 (CA). Secondary evidence by the provisions of section 87(e) of the Evidence Act 2011 includes an oral account of the content of a document, thus, I find that the court can rely on the uncontested testimony of the claimant on her salaries. Further to this, it is also the position of the law that when a party is issued a notice to produce a document and failed to so do, the court will be right to impute that the contents of the document is unfavorable to the party’s case, see section 167 (d) of the Evidence Act 2011 and the case of United Bank of Africa v Ibeh Esther Ogochukwu (2014) LPELR-24267 (CA).

It is based upon the above, that I find that the claimant has proved that her monthly salary is N95,260.00k as asserted by her and that she is entitled to same for the wrongful dismissal of her employment. Consequently, I hereby award a sum of N95,260.00k to the claimant as her one-month salary in lieu of notice. I so hold.

On the claim for N190,520 .00k being her unpaid half salary for September to December, 2016, the claimant pleaded and deposed in her statement on oath that the 1^st defendant refused to pay her full salary from September-December, 2016, but instead placed her on half-salary for the stated months. Neither this claim nor the evidence of the claimant in this regard was controverted by the defendants. In actual fact, DW2 confirmed that the claimant was on half salary for the stated four months under cross examination on 30^th May, 2019. It is the law that a fact is deemed admitted if it is neither denied specifically nor denied by implication. See Amah v Amah (2016) LPELE-41087 (CA), also, it is trite that what is admitted needs no further proof. See Section 135 of the Evidence Act 2011. It is based on these authorities and the expositions above, that I find that the claimant is entitled to N190,520.00k as the unpaid balance of her salaries for the months of September, October, November and December, 2016. I so hold.

The claimant sought the payment of a sum of N85,000.00k as her annual leave allowance. This relief falls within the scope of special damages which must be specifically pleaded and proved strictly and concisely, see the case of Mantec Water Treatment Nig. Ltd v Petroleum (Special) Trust Fund (2007) LPELR-9030 (CA). The claimant however, neither led any evidence in support and in prove of her entitlement to this relief, nor the year for which she is claiming, thus the relief fails as it is speculative and is unproven. I so hold.

The claimant also sought an order for the defendants to pay her a sum of N1,170,382.50 as her contributions to the staff retirement savings account, being held by Trustfund Pension Administrators. I have held earlier that the claimant’s dismissal by the defendants is wrongful, more so she is entitled to savings in her retirement funds being held by her pension administrator as a matter of law. It is in evidence before this court that the savings were remitted to the pension fund administrator upon deduction of same by the defendants see Exhibit MD7, and this is to the knowledge of the claimant. I see no basis for the claimant to bring a claim for her retirement benefits against the defendants in this case knowing the funds are domiciled with the Pension administrator, except for the fact that the claimant led evidence that she cannot access the funds in that account without the authorization of the 1^st defendant. It is consequent upon this that I hereby order the defendants to within seven (7) days authorize, the payment of the claimant’s pension funds being held by Trustfund Pension Administrators forthwith. I so hold.

The claimant claims the sum of N1,500,000.00k being sum deducted from her salaries as staff monthly contribution by the 1^st Defendant since her employment. The position of law is that he who asserts must prove. See Amaran v Education Trust Fund (2014) lpelr-22859(CA) and Section 131 of the Evidence Act 2011. The burden of proof that the deductions were made rests on the claimant, and since there is nothing before this court to show that the deductions were indeed made or the amount deducted, the court will not go on a voyage of discovery in search of evidence on behalf of any party. It is the duty of the claimant to present the evidence in proof of her claims i.e. pay-slips and other documents showing the alleged deductions. This evidential burden placed on the claimant was however not discharged and it is subsequent upon this that her claim under this heading inevitably fails. I so hold.

On the claim for general damages of N20,000,000.00k for her unlawful dismissal. There is no doubt that the employment relationship between the parties in this case is that of Master/Servant, and the dismissal of the claimant in this wise can only be termed as wrongful and not unlawful, the position of the law is that an award of general damages for wrongful dismissal is usually not granted in employment cases, in that what is computed for a successful party is not general damages, but proven special damages which is what the employee will ordinarily be entitled to had his employment been determined in line with the contract of employment, see New Nigeria Newspapers Ltd. v Felix Atoyebi (2013) LPELR-21489 (CA). However, it is also the position of the law that where there is a wrong there is a remedy “ubi jus ibi remedium”. The claimant in this case led evidence that she was locked out by the security agents of the 1^st defendant, and a disclaimer notice was published by the Bank, which was to the effect that she was no longer an employee of the Bank and “anybody who transacts with her does so at his own risk”, this according to her, casted a slur on her integrity and eroded her chances of getting another job, especially in the banking industry. I have held earlier that the defendants in this case were unable to prove the allegation of fraud, abandonment of employment and spreading of false information about the Bank against the claimant, and it is in due consideration of the evidence adduced before me, that I arrive at the conclusion that the claimant in this case has successfully proved that the action of the defendants in this case has damaged her integrity and standing as a professional, I find therefore that the damage done to her can only be assuaged by an award of general damages in this case, see Promasidor (Nig)Ltd & Anor v Ashikia (2019) LPELR-CA/L/381/2013. A 2019 case where it was held by Ogakwu J.C.A as follows;

The primary object of an award of damages is to compensate the Claimant for the harm done to him. See B.B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62 and AJAYI vs. AKAWA (2018) LPELR (44933) 1 at 28. In the award of general damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. General damages are awarded to assuage the loss which flows naturally from the defendant’s act. It does not have to be specifically pleaded. It suffices if it is generally averred. The general damages are presumed to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of exact calculation. It is quantified by relying on what a reasonable man’s judgment would be in the circumstance: ELF PETROLEUM vs. UMAH (2018) LPELR (43600) 1 at 27-28, ?FEDERAL MORTGAGE FINANCE LTD vs. EKPO (2004) 2 NWLR (PT 856) 100 at 132, LAR vs. STIRLING ASTALDI LTD (1977) 11-12 SC 53 and OMONUWA vs. WAHABI (1976) 4 SC 37. It was therefore proper for the lower Court to award the damages for the proven wrong done to the Original Claimant.”

Consequently, I hereby award a sum of N2,000,000.00k as general damages to the claimant to be paid by the defendants in this case. I so hold.

In conclusion the claimant’s action succeeds in part and for the avoidance of doubt, I declare and order as follows;

1) The dismissal of the claimant by the 1^st defendant is wrongful

2) The defendants are to pay to the claimant the sum of N95, 260.00k as one-month salary in lieu of notice for the wrongful dismissal of the claimant.

3) The defendants claim for the sum of N85,000.00k as her annual leave allowance fails.

4) The defendants are to pay to the claimant claims the sum of N190,520.00k which is the balance of her unpaid half salary for the months of September to December, 2016.

5) The defendants are ordered to authorize the payment of the claimant’s retirement funds in Trustfund Pension Administrators within seven (7) days of this judgment.

6) The claim for the sum of N1,500,000 .00k as sum deducted from claimant’s salaries as staff monthly contribution by the defendants fails.

7) The claimant is hereby awarded a sum of N2M as general damages to be paid by the defendants.

8) All sums awarded in this judgment are to be paid by the defendants within 30 days from the date of this judgment, failing which they will attract a 10% interest per annum.

A cost of N100,000.00k is awarded against the defendants.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge