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National Industrial Court

Mrs Omotola Shafqat Ogungbuaro -VS- Access Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

 

DATE: OCTOBER 30, 2018                                                            SUIT NO. NICN/LA/289/2014

 

BETWEEN

Mrs Omolola Shafqat Ogungbuaro                         –                                                           Claimant

 

AND

Access Bank Plc                                                      –                                                         Defendant

 

REPRESENTATION

Babatunde Badejo, for the claimant.

Alex Muoka, for the defendant.

 

JUDGMENT

  1. The claimant commenced this action by a complaint and a statement of facts dated 26th day of June 2014 and accompanied with the originating processes. The claimant is praying against the defendant for the following reliefs:

(a) A declaration that the claimant was not negligent and as a result, the recommendation of the management of the defendant on October 23, 2014 indicting the claimant is null and void.

(b) A declaration that the various sums of money deducted by the defendant from the accounts of the claimant are illegal, unconstitutional, null and void and same be reversed.

(b) A declaration that the sum of N1,647,307.92 (One Million, Six Hundred and Forty-Seven Thousand, Three Hundred and Seven Naira, Ninety-Two Kobo) being the total sum of money the defendant illegally deducted from the claimant’s various accounts be refunded to the claimant by the defendant with an interest at the rate of Nigerian treasury bill of 12% on the N1,647,307.92 (One Million, Six Hundred and Forty-Seven Thousand, Three Hundred and Seven Naira, Ninety-Two Kobo) from February 28, 2014 until judgment is delivered and thereafter until the judgment sum is fully liquidated.

PARTICULARS

Illegal deduction from November 2013 Salary               N81,250.00

Illegal deduction from December 2013 Salary                N81,250.00

2013 end of the year earned medical allowance                         N150,000.00

2013 earned passage allowance                                        N112,500.00

Illegal deduction from ex staff account                         N1,222,307.92

TOTAL                    N1,647,307.92

(d) General damages in the sum of N25,000,000.00 (Twenty-Five Million Naira) only in favour of the claimant for the pain, traumatization, frustration, emotional injuries and loss of quality life suffered as a result of the defendant’s action.

(5e) An order directing/compelling the defendant to give the claimant an unbiased and satisfactory reference letter upon demand.

(f) The cost of instituting the action in the sum of N1,000,000.00 (One Million Naira) only.

 

  1. The defendant in denying the claimant’s claims filed its statement of defence, which was amended by an order of this Court made on 6th October 2016. The defendant in its amended statement of defence filed on 17th October 2016 joined issues with the claimant.

 

  1. At the trial, the claimant testified on her own behalf as CW and tendered Exhibits C1 to C18. For the defendant, Mr. Boniface Egege, an Internal Auditor and Investigator with the defendant, testified as DW and tendered Exhibits D1 to D5. At the close of trial, parties filed their respective final written addresses. The claimant filed her final written address first given that the defendant did not file its final address as ordered by the Court on 15th February 2017. Accordingly, the claimant’s final written address was filed on 15th May 2017, while the defendant’s was filed on 18th April 2018. The claimant’s reply on points of law was filed on 27th April 2018.

 

THE CASE OF THE CLAIMANT

  1. The claimant’s case is that on the 10th October 2013, while she was out marketing the defendant’s products to other customers, she received a request via an electronic mail on his blackberry mobile phone from Plenco Industries Limited to transfer the sum of N2,500,00.00 (Two Million, Five Hundred Thousand Naira) only to Zenith Bank Plc. That upon receipt of the customer’s request by electronic mail, she tried to contact the management of Plenco Industries Limited on phone to confirm if the transfer request is to be treated but was unsuccessful. That she subsequently contacted one Miss Emilia Ezeji who is the secretary of Awolowo Branch, Ikoyi, Lagos on phone to help her send indemnity forms to Plenco Industries Limited pending the time she returns from the field after marketing. That by the time she got back to the branch, the secretary had treated the transfer request by signing on it and taking same to operations unit head for onward transfer of funds to Zenith Bank Pic without her authorization or knowledge. To the claimant, it is the customary practice of the defendant that where a transfer request is made by a customer, the account officer of the customer can confirm the request by appending his/her signature on the transfer request before it is treated by the Operations Unit Head but where the account officer is not around, the Operations Unit Head or the Branch Service Head or the Relationship Manager in the branch is authorized to confirm transfer request before it can be treated by Operations Unit Head for onward transfer of funds to the beneficiary as indicated on the customer’s fund transfer request.

 

  1. The claimant continued that at about 9:30am the following day 11th October 2013, Plenco Industries Limited subsequently sent a letter to the branch that N2,500,000.00 (Two Million Five Hundred Thousand Naira) was missing. That the Internal Audit of the defendant thereafter setup an investigative panel to look into the fraudulent transactions on the said Plenco Industries Limited’s account of October 10, 2013. That during interrogation and investigation by the Internal Audit of the defendant, the secretary (Miss Emilia Ezeji) admitted that the claimant asked her to send indemnity forms to Plenco Industries Limited but she assumed that she also instructed her to confirm the request for treatment. That while she was waiting for the Internal Audit report of the defendant, the defendant on 23rd October 2013 sent an electronic mail informing her of the defendant’s management recommendation to the effect that the sum of N1,625,000 (One Million, Six Hundred and Twenty-Five Thousand Naira) should be recovered from her at a monthly deduction of N81,250.00 (Eighty-One Thousand, Two Hundred and Fifty Naira) only for a period of 20 months. That she registered his grievances against the unjust and unwarranted recommendation of the defendant’s Internal Audit on 28th October 2013 on the basis that she did not authorize the secretary, Miss Emilia Ezeji to confirm the Plenco Industries Limited’s transfer request but only asked her to send indemnity forms. The claimant also stated that she was not availed a copy of the report which indicted her and subsequently appealed to the management to reconsider the case for the purpose of doing justice since she did not know anything about fraudulent transaction.

 

  1. The claimant went on that dissatisfied with the recommendation of the defendant’s internal audit recommendation, she subsequently forwarded a memo dated 18th November 2013 to the Group Managing Director (GMD), Mr. Aigboje Aig-Imoukhuede seeking for the reversal of unjust recommendation of the Internal Audit. That the GMD reacted to his memo by instructing the Internal Audit and Human Resources to revisit her case, which revisit was not done despite repeated reminders. That the defendant commenced deduction of N81,250.00 (Eighty-One Thousand, Two Hundred and Fifty Naira) only from her staff account on November 22, 2013 and the second deduction was effected on December 20, 2013. That her 2013 end of the year earned medical allowance in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) only and earned passage allowance in the sum of N112,500.00 (One Hundred and Twelve Thousand, Five Hundred Naira) only respectively were unlawfully deducted by the defendant on December 31, 2013. That when the impunity of the defendant could no longer be condoned, she tendered his resignation letter on December 9, 2013.

 

  1. Furthermore, that sometime in August 2013, her husband, Mr. Ogungbuaro Taiwo Bosinuola, paid tuition fee of $23,280 (Twenty-Three Thousand, Two Hundred and Eighty Dollars) equivalent of N3,400,000.00 (Three Million, Four Hundred Thousand Naira) only for his Master’s programme at University of Windsor, Ontario, Canada through her staff account number 0001720497 with the defendant. That she sought approval from the defendant via an electronic mail to pay her said husband’s tuition fee to the University of Windsor, Ontario, Canada through her staff account and the defendant granted her request. That her husband, Mr. Ogungbuaro Taiwo Bosinuola, was refused visa by the Canadian High Commissioner sometime in December 2013, which resulted in the repatriation of the tuition fee earlier paid to University of Windsor, Ontario, Canada to her account with the defendant. That she duly notified the defendant of the said repatriation of her husband’s tuition fee and instructed the defendant to pay in the said money to her savings account number 003241686 with the defendant since her staff account number 0001720497 has been closed based on her exit from the employment of the defendant or in the alternative, issue a bank cheque in her name for the said amount of money. That the defendant ignored her letter and without her express consent or knowledge paid her husband’s tuition fee into an ex-staff (salary) account number 0689023521 and subsequently debited the sum of N1,222,307.92 (One Million, Two Hundred and Twenty-Two Thousand, Three Hundred and Seven Naira, Ninety-Two Kobo) only from the said ex-staff (salary) account on February 28, 2014. That having become frustrated by the unreasonable actions of the defendant, she personally wrote a letter to the GMD of the defendant in which she raised serious objection to the defendant’s action and made a formal demand that the total sum of N1,672,798.85 (One Million, Six Hundred and Seventy-Two Thousand, Seven Hundred and Ninety-Eight Naira, Eighty-Five Kobo) only illegally debited from her various accounts by the defendant be refunded back to her. That upon receipt of her demand letter dated March 7, 2014, the defendant in reply alleged that she was never accused of any fraud, rather she was held liable for negligence that led the defendant to be defrauded the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) only.

 

THE CASE OF THE DEFENDANT

  1. To the defendant, the claimant was employed by the defendant and posted to the Awolowo Road Branch of the defendant upon being confirmed by the defendant on August 3, 2009. That the Secretary of Awolowo Branch of the Bank had treated the transfer request upon the claimant’s instructions by the time the claimant got to the office. That although it is not the practice of the defendant to make the report of the Internal Audit Investigation available to staff, the claimant was advised of the outcome and findings of the investigation. The claimant and other staff involved in the case were invited and questioned by, and made statements to, the defendant’s Internal Audit Investigation Unit. That the investigation report carried out by the Internal Audit found the claimant guilty of negligence by her failing to confirm an email request purportedly emanating from a staff of a customer company (Plenco Industries Limited) before calling the Branch’s Secretary to attend to the request and scan indemnity forms to the sender of the mail. That the claimant and the two other staff found culpable (Kunbi Kuti and Emilia Ezeji) were duly informed of the findings and recommendation of the Internal Audit Investigation Unit, which recommendation was that the customer’s account be credited with the N2,500,000.00 and the loss recovered from the claimant for not confirming the transaction which was above the Bank’s confirmation threshold, and Kunbi Kuti for not adhering properly to the provisions of the standard operating procedure for non-cheque funds transfer. The defendant went on that the recommendation of the Internal Audit investigation was that the claimant should refund 65% of the fraud loss. The defendant further averred that the recommendation was premised on the negligence of the claimant to confirm the email before attending to it. That the claimant was duly informed that pursuant to the sanctions recommendation of the Internal Audit Investigation Unit the sum of N1,625,000.00 (or 65% of the loss) would be recovered from her by monthly deductions of N81,250.00 from her salary for a period of 20 months. The Internal Audit Investigation also recommended that 35% of the loss should be recovered from Kunbi Kuti, whilst Emilia Ezeji should be sanctioned by being returned to her employer (MS Outsourcing) for her negligence in processing the transaction and for carrying out transactions outside her core functions as a Secretary.

 

  1. The defendant proceeded that the claimant manages the customer’s account and was expected to understand the customer’s transaction dynamics, which she failed to do. That Plenco Industries Limited had never issued any written instructions for the transfer of any amount to a third party. Their transactions were always done via cheque withdrawals. That the email instruction ought to have placed the claimant on alert. That the claimant received the purported email from the customer and brought to the attention of the Secretary of the Branch. That the claimant’s instructions to the branch Secretary was not clear on what to do after she had requested her to forward the bank’s standard indemnity to the customer. That the claimant was clearly negligent in not seeing that the purported email instruction from the customer was a scam or fake email which emanated from ‘plenconigerian@gmail.com’ whereas the customer’s email address is ‘plenconigeria@gmail.com’. That the customer’s confirmation threshold, which the claimant was aware of is N500,000.00. That the transaction as to N2,500,000.00 was above the threshold and ought to have been confirmed by the account officer. Also that the claimant took no further action when she realized that the transaction had been consummated upon her arrival at the branch knowing full well that the transaction was not confirmed in line with the customer’s mandate. She was expected to have still gotten in touch with the customer to confirm the transaction, even if it was late; that way the fraud loss would have been minimized as the beneficiary’s Bank would have been contacted promptly to block the fraudulent account.

 

  1. The defendant went on that the claimant tendered her resignation letter dated 9th September 2013 terminating her employment with the defendant only on the ground that she wanted to pursue her personal development. That no actions of the defendant could have traumatized the claimant emotionally and or crippled her financially to the extent of her not meeting her financial obligations, as the defendant’s actions were based on the negligence and carelessness of the claimant to her official duties. That the claimant in her capacity as a banker should exercise the required professionalism, probity and integrity in the course of performing her duties and as well as managing customer accounts. That the claimant as an employee of the defendant has a duty of care to act in the best interest of the defendant in the performance of her duties. That the claimant’s act of carelessness and negligence is considered a serious offence as enshrined in the Employees’ Handbook of the defendant, which attracts severe penalty and sanctions by the Bank. The claimant is thus NOT entitled to the reliefs claimed or any relief for the reasons alleged.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant submitted three issues for determination, namely:
  • Whether the claimant was negligent in the discharge of her duties as the Account Officer of Plenco Industries Limited on the 10th day of October 2013 as alleged by the defendant.
  • Whether the defendant afforded the claimant a fair and reasonable trial.
  • Whether the claimant is not entitled to the reliefs sought by her complaint and statement of fact dated 26th day of June 2014 in view of the facts and circumstances of this case.

 

  1. On issue (1), The claimant referred to MTN v. Mundra Ventures (Nig) Ltd [2016] LPELR-40343 (CA), Koya v. UBA Ltd [1997] 1 NWLR (Pt. 481) 41 and Osigwe v. Unipetrol Ltd [2005] 5 NWLR (Pt. 918) 261 as laying down that in a claim for damages for negligence, the plaintiff must plead and prove the three requirements of: the defendant owing the plaintiff a duty to exercise due care; the defendant failing to exercise due care or breaching the duty of care; and the defendant’s failure causing the injury suffered by the plaintiff. She proceeded to conceptualize negligence referring to Blacks Law Dictionary 8th Edition at page 1032 in the process, and then submitted that in the instant case, it is not in dispute that the claimant owed the defendant a duty of care as a Banking Officer (BO) of not only Plenco Industries Limited as a customer but also to the defendant. That the question, however, is whether the claimant breached that duty of care. She answered is in the negative. That she gave and led evidence that she received the transfer instruction via email on her blackberry mobile phone and called the Secretary of the defendant to send indemnity forms to the customer pending the time she would confirm the transfer request from the customer’s accountant having tried severally to reach him on phone without success and handle the transaction when she gets back to the branch from a marketing field.

 

  1. The claimant referred to paragraphs 6 and 15(c) of the defendant’s amended statement of defence which state that:

The investigation report carried out by the Internal Audit – Investigation of the defendant found the claimant guilty of negligence by her failing to confirm an email request purportedly emanating from a staff of a customer company (Plenco Industries Limited) before calling the branch Secretary to attend to the request and scan indemnity form to the sender of the mail.

 

The Claimant was negligent in not seeing that the purported email instruction from the customer was a scam or fake mail which emanated from “plenconigerian@gmail.com” whereas the customer’s email address is “plenconigeria@gmail.com.

To the claimant, the defendant’s investigation carried out by the Internal Audit found at paragraphs 4.17 and 4.18 respectively of Exhibit D5 that:

A review of the purported mail address from Plenco revealed that the email (address) plenconigeria@gmail.com which is actually Plenco Industries Limited email address (was used) in sending the mail. However, replies to the mail were redirected to another address plenconigerian@gmail.com. The letter “n” was inserted after the word in the fake email address. The fraudulent insertion could only be dictated at when the recipient of the original mail replies to all.

 

The transfer instruction was sent using the letter head similar to the one used (by the) customer in forwarding their complaints to us. The signature on the instruction appears genuine when compared with the customer’s mandate.

 

  1. The claimant then submitted that contrary to paragraph 15(c) of the amended statement of defence, the transfer request emanated from the customer’s registered email address (plenconigeria@gmail.com) with the defendant. It was on the following day that it was detected that replies to the email were re-directed to another email address: plenconigerian@gmail.com. That it is apparent that DW lied under oath when he clearly stated in paragraph 16 of his written deposition that the “mail emanated from plenconigetirian@gmail.com whereas the customer’s email address is plenconigeriae.mail.com” which is in conflict with paragraph 4.17 of Exhibit 5. The claimant referred to paragraphs 8 and 9 of her written statement on oath in respect of her reply to the amended statement of defence which confirms paragraph 4.17 of Exhibit D5. That it is very apposite that the evidence led and given in respect of the defendant’s allegation that the claimant was negligent could not be sustained because it is at variance with the Report of the Internal Audit Investigation Unit of the defendant (Exhibit D5). Also referred to are paragraphs 4.3, 4.5, 4.8 and in particular 4.17. The claimant urged the Court to take a cursory look at Exhibits D3 and D4 respectively which are written statements by Emilia Ezeji and the claimant respectively to the Head of Investigation Unit of the defendant. That CW never gave evidence that she replied to the email before putting a call through to the Secretary of the Branch to send indemnity forms to the customer.

 

  1. Similarly, that in paragraph 6 of the amended statement of defence, the defendant alleged that the Secretary of the Awolowo branch of the defendant treated the transfer request upon the claimant’s instruction by the time the claimant got to the office. Furthermore, that in paragraph 15(b) of the same amended statement of defence, the defendant said that the claimant’s instruction to the branch secretary was not clear on what to do after she had requested her to forward the bank’s standard indemnity to the customer. To the claimant, parties are bound by their evidence which must be consistent with their case as presented to the Court; parties are not allowed to approbate and reprobate at the same time. That the defendant found as captured in the last paragraph of 4.10 of Exhibit D5 that Emilia Ezeji, the branch Secretary, “felt that the Account Officer already confirmed the transaction when she called and as such did not bother confirming the transaction directly from the customer”. That this is also contrary to Exhibit D2 which is a letter dated 11th October 2013 from Plenco Industries Limited to the defendant stating that: “The telephonic conversation from Ms. Emilia Ezeji to Mr. AMIT SHARMA (ACCOUNT HEAD for PLENCO INO LTD) also is a proof that PLENCO never asked Ms. Emilia Ezeji to go ahead and proceed for the transfer”.

 

  1. Finally, that paragraph 4.23 of Exhibit D5 gave a vivid narration of what transpired between Ms Emilia Ezeji and Kunbi Kuti (BO – Assistant BM) which eventually led to the fraud loss of N2.5 Million. That in paragraph 4.23 the transfer instruction was rejected twice by the Retail Operation (Kunbi Kuti) because he took notice at the Account Officer (the claimant herein) was not in the branch at that time the branch Secretary presented the transfer instructions to him. That it was when the Secretary (Ms Emilia Ezeji) wrote “confirmed by AMIT” on the transfer instruction before he accepted the transfer request from her and treated it on the third attempt. That was after the Secretary had spoken with AMIT SHARMA (the customer’s account head who had denied receiving any indemnity from the Secretary). It is the same Secretary who said that she thought the Account Officer had confirmed the transaction, and again, it is apparent that she did call the account head of the customer to confirm the transaction. Assuming without conceding that the claimant specifically instructed the secretary to treat the request, the branch secretary would probably have written “confirmed by Omolola Ogungbuaro” on the transfer instruction, and not “Confirmed by AMIT”. That with all these facts and findings made by the Internal Audit Investigation as captured in Exhibit D5, the Internal Audit in paragraph 8.2 of the report (Exhibit D5) recommended that: “The loss should be recovered from the Account Officer Omolola Ogunghuaro for not confirming the transaction, which was above the Bank’s confirmation threshold”.

 

  1. To the claimant, this is totally unacceptable in view of the fact that the conclusion and recommendation of the Internal Audit Investigation Unit of the defendant cannot be supported having regard to both the oral and documentary evidence presented to it by the parties, urging the Court declare the conclusion as well as the recommendations therein null and void. That there is no where it is said or found by the Internal Audit during its investigation or in its report (Exhibit D5) that the claimant personally confirmed or approved the transaction leading to the fraud loss of 2.5 Million Naira. The claimant submitted further that it is a basic principle of law that parties are bound by their pleadings and it is the case they present on the basis of those pleadings that must be considered by the courts of law, referring to Afrotec Technical Services (Nig) Ltd v. Mia & Sons Ltd & anor [2001] 1 MJSC 90; as well as Punch (Nig) Ltd v. Jumsum (Nig) Ltd [2010] 36 WRN 119 where it was held that pleadings no matter how beautifully couched cannot constitute evidence. That DW told the Court that the transaction leading to the fraud loss was approved by Emilia Ezeji, the Secretary and Kunbi Kuti, the Retail Operation respectively.

 

  1. That it is also worthy of note that the sanctions prescribed in paragraph/clause 13.0 titled, “Disciplinary Rules and Procedure” at pages 37 and 38 of Exhibit D1, which is the defendant’s Employees Handbook, were not strictly followed by the defendant, which ultimately rendered the recommendations of the Internal Audit Investigation also null and void; further referring to paragraph 27 of the defendant’s written statement on oath sworn to on 17th October 2016. The claimant also urged the Court to take a cursory look at paragraph 4.11 of Exhibit D5 where it will be seen that the Internal Audit of the defendant made a finding to the effect that the transaction leading to the fraud loss of N2.5 Million was “consummated alone without the input of the Account Officer”, the claimant herein, by the Secretary of the branch, Ms Emilia Ezeji and the Internal Audit came to the conclusion that the claimant did not confirm the transaction as captured in paragraph 8.2 of Exhibit D5. The secretary’s defence was that “she was saddled with such responsibilities…which included treating customer’s transfers of any amount (when marketers) are not around”. The claimant urged the Court to take notice that the Secretary never claimed that the claimant herein instructed her to treat the transfer request of the customer or any customer whatsoever at any point in time, further referring to Exhibit D3, which is Emilia Ezeji’s statement to the internal audit unit of the defendant. That the claimant who had more than 5 (Five) years of experience working in the defendant would have called the Operations Unit Head or the Branch Service Head or the Relationship Manager in the branch who are the only authorized personnel that can confirm a transfer request where the Account Officer of the customer was not in the Branch to personally confirm fund transfer requests, referring to paragraph 12 of CW’s written deposition on oath sworn to on 26th June 2014. Similarly, that DW who testified for the defendant at the trial of this case confirmed to this Court during cross-examination that the transaction was approved by Emilia Ezeji, the branch Secretary and Kunbi Kuti, the Retail Operation. That paragraph 4.11 of Exhibit D5 also confirmed this position that the fraud loss of N2.5 Million was “consummated alone without the input of the Account Officer” the claimant herein, by the Secretary of the branch, Ms. Emilia Ezeji. It is thus the claimant’s submission that this further corroborates the evidence of the claimant before this Court that the claimant did not at any point in time approve or authorize the transaction that resulted in this suit. In any event, that admitted facts require no further proof, referring to section 123 of the Evidence Act 2011 as well as Bello v. Eweka [1981] 1 SC 107, Motunwase v. Sorungbe [1988] 4 NWLR (Pt. 92) 90, AG, Federation v. Ajayi [2000] 12 NWLR (Pt. 682) 509, Salau & ors v. Parakoyi [2001] 1 NWLR (Pt. 695) 446 at 456, Nkwocha v. Ofurum [2002] 5 NWLR (Pt. 761) 506 at 524-525 and Maja v. Samouris [2002] 7 NWLR (Pt. 765) 78 at 101.

 

  1. Issue (2) is whether the defendant afforded the claimant a fair and reasonable trial. To the claimant, it is trite that fair trial is a principle of justice and fairness which imposes obligations on persons who have power to make decisions affecting other people to act fairly, in good faith without bias and to afford a person the opportunity to be heard and adequately state his case before a decision is made, referring to Garba & ors v. University of Maiduguri [1986] 1 NWLR (Pt. 18) 550, Legal Practitioners Disciplinary Committee v. Gani Fawehinmi [1985] 2 NWLR (Pt. 7) 300 and section 36(1) of the 1999 Constitution. That following the perverse recommendation of the Internal Audit Investigation Unit of the defendant, the claimant wrote Exhibits C6, C6(a), C7 and C17 which were appeal memos to the management of the defendant to review her case and exonerate her from the fraud. That DW admitted during cross-examination that he knew that the claimant was not satisfied with the recommendation of the Internal Audit Investigation Unit and also went further to state that “the matter was neither revisited nor her case referred to the Disciplinary Committee because she did not adduce any new fact or state anything different when she wrote (Exhibits C6, C6a, 7 and 17 respectively) to the Defendant”.

 

  1. The claimant went on that this is in consonance with the CW’s testimony during cross-examination that she was never “invited by any Disciplinary Committee or Panel”. That in re-examination as to whether Internal Audit Investigation Unit and Disciplinary Committee or Panel is one and the same thing, her answer was that they are two different bodies of the defendant. That it is also worthy of note that the defendant in paragraph 8.7 of Exhibit D5 recommended that “the matter should be reported to the police with the aim of arresting and prosecuting the fraudsters”; but on the contrary, DW clearly stated during cross-examination that security agencies/law enforcement agencies were not invited or briefed of the fraud. The claimant wondered the manner of the investigation carried out by the Internal Audit Investigation Unit other than a window dressing of the defendant’s agenda. As a matter of fact, that the opportunity to arrest and possibly prosecute the fraudsters presented itself when another fraudulent request was made from the same customer’s account for the sum of N5,000,000.00 (Five Million Naira) using the same registered email address with the defendant (plenconigeria@gmail.com) but the defendant chose to look the other way by simply blocking and frustrating the fraudulent request, referring to paragraph 7.5 of Exhibit D5. That the security agencies/law enforcement agencies know what to do if they had been briefed of the fraud, more so that Exhibit D5 in paragraph 7.3 captured it that: “The Bank lost the sum of N2.5 million as a result of the fraud”. That since the defendant claimed to have lost thus sum of money, why then would the defendant turn around to illegally recover 65% of the fraud loss from the claimant? It is the claimant’s submission that the Bank loss should not be taken as the claimant’s loss as the defendant is trying to do. That the defendant also went ahead in its ocean of illegality and error to claim the tuition fees of Ogungbuaro Taiwo Bosinuola (the claimant’s husband) which the claimant notified the defendant of and the defendant graciously gave approval to the claimant to use her staff account to pay the said tuition fees to University of Windsor, Ontario, Canada.

 

  1. The claimant then asked whether, from the totality of these facts before the Internal Audit Investigation Unit and management of the defendant and as presented to this Court, it can be concluded that the claimant was given a fair and reasonable trial. The claimant answered in the negative and urged the Court to so hold. That the defendant’s Disciplinary Committee is superior to the Internal Audit and it would have been a viable forum for the claimant to re-present her case for reconsideration as against the perverse recommendation of the Internal Audit Investigation Unit of the defendant, citing Uoengwu v. Uzuegor [2003] 13 NWLR (Pt. 836) 136 on the circumstances under which the decision of a Court, which also includes administrative tribunals, will be said to be perverse. It is the claimant’s submission, therefore, that the Internal Audit Investigation Unit of the defendant mis-conceived the thrust of the case as presented, took sentiments and irrelevant matters into consideration and went outside the issues thereby jeopardizing the merit of the claimant’s case. The claimant then urged the Court to hold that the claimant was not afforded a reasonable and fair trial by the defendant in view of the circumstances of this case; and that the tort of negligence is a matter of fact not law.

 

  1. Issue (3) is whether the claimant is not entitled to the reliefs she seeks. Citing section 131(1) of the Evidence Act 2011 and Ezinwa v. Agu [2004] 3 NWLR (Pt. 861) 431, the claimant submitted that she led and gave credible evidence backing up her claims before this Court. That the burden to proof that the claimant was negligent rested on the defendant which the defendant failed to discharge, and the burden did not shift to the claimant. The claimant went on that considering the issue of damages, which was well deliberated upon in Omonuwa v. Wahabi [1976] 4 SC 37, equity demands that the claimant be restored to the status quo ante bellum, which is such as have been suffered by her in consequence of the defendant’s action, which according to her did not only traumatize her emotionally but has also crippled her financially as she can no longer meet her financial obligations and the immediate needs of her family. That it is even worse that her husband’s tuition fees was treated by the defendant as the claimant’s money despite the fact that she got approval from the defendant to transmit the sum of $23,280 (Twenty-Three Thousand, Two Hundred and Eighty Dollars) equivalent of N3,400,000.00 (Three Million, Four Hundred Thousand Naira) only for her husband’s Masters programme at University of Windsor, Ontario, Canada through her staff account number 0001720497 (Exhibit C12) with the defendant to University of Windsor, Ontario, Canada and also duly notified the defendant by Exhibit C10 that the defendant should issue a cheque for the refund of the said tuition fees following the refusal of the Canadian High Commissioner to issue her husband a Student Visa. Paragraph 22 of DW written deposition confirmed the claimant’s position that she “obtained approval” to use her staff account to pay for her husband’s tuition fees. She referred to G. Chitex Ind. Ltd v. OBI Nig. Ltd [2005] 42 WRN 1 SC, which stated that generally the amount to be paid to a party as damages in breach of contract is the amount it will entail to put that person in the position he would have been if there had been any breach of contract. Additionally, that section 19(d) of the National Industrial Act (NIC) Act 2006 empowers this Court to make an award of compensation or damages in any circumstance dealing with any matter that this Court has jurisdiction to hear, urging the Court to so grant the damages as claimed by the claimant.

 

  1. The claimant continued that the cost of instituting this action in the sum N1,000,000.00 (One Million Naira) was specifically pleaded in paragraph 32 of the claimant’s written statement on oath sworn to on 26th June 2014. That this piece of evidence was not contradicted by the defence counsel during the cross-examination of CW. To the claimant, she stated that her counsel (on record) was paid the sum of N1,000,000.00 (One Million Naira) in two tranches of N500,000.00 (Five Hundred Thousand) Naira only each by her husband. That this is as a result of Exhibit C18, which is the solicitors’ bill of charges issued by the law firm of Babatunde Badejo & Co to the claimant on 7th May 2014 for the purpose of ensuring that justice was done to her case by seeking legal redress for her in a court of law.

 

  1. Finally, it is the claimant’s submission that she is entitled to an unbiased and satisfactory reference letter upon demand having put in 5 (five) quality years of her life serving in the defendant. That the defendant did not even state any cogent or justifiable reason to buttress paragraph 33 of DW’s witness written statement on oath deposed to on 17th October 2016 other than the fact that the defendant’s purpose is to silence the claimant professionally and render her useless. The claimant concluded by submitting that she is entitled to the claims as per her complaint and statement of facts, which was uncontradicted and is, therefore, entitled to judgment as she has given credible evidence to firmly establish her claims.

 

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant on its part submitted the following three issues for determination:
  • Whether the deduction of the sum of N1,647,307.92 by the defendant from the claimant’s account in payment of the N1,625,000.00 (65%) surcharge for loss occasioned by the claimant’s negligence was unlawful, unfair, unjust, unconstitutional and so should be paid back to the claimant.
  • Whether, if the answer to issue (1) above is in the positive, the claimant is entitled to pre-judgment interest.
  • Whether in the circumstances of this case the claimant is entitled to the other reliefs claimed.

 

  1. For issue (i), the defendant submitted that given the claimant’s submission that she was not negligent, the claimant’s counsel conveniently forgot that the evidence that the email instruction did not come from the customer’s actual email address was not introduced for the first time in Exhibit D5 or in the witness statement of DW. That it was also contained in Exhibit D2, which was the complaint letter issued by the customer, Plenco Industries Limited, the very next day following the incident (i.e. on 11th October 2013). That the customer stated: “On checking the email inbox of Ms. Emilia Ezeji and the querying account officer Ms. Omolola Shafqat Ogungbuaro for Plenco Industries Ltd from your Branch…Following facts came into picture…she received email from plenconigerian@gmail.com which is not Plenco Ind. Ltd. registered email. Plenco Ind. Ltd’s registered email is plenconigeria@gmail.com”. That quite apart from the issue of the fraudulent fund transfer instruction coming from a spammed email (which should have been noticed by the claimant), it is the defendant’s case that the fraud and loss would have been prevented if the claimant had bothered to pursue confirmation of the instruction from the customer before same was treated, as she was meant to do by her normal course of duties. That Exhibit D5 stated clearly in paragraph 4.15: “Omolola however admitted that she did not confirm the transaction before it was treated”; and in paragraph 4.19: “The Customer’s mandate provides that either of the two signatories to the account must confirm transaction. The customer’s confirmation threshold is N500,000.00”. That Exhibit D5 in paragraphs 5.1 – 5.3 found three control lapses including “treating transaction above the Bank’s confirmation threshold without confirming transaction from the customer”.

 

  1. The defendant continued that in the course of her cross-examination, CW admitted that her duties included understanding the customer’s transaction dynamics and confirming instructions from the customer. That she admitted that she knew that the customer had a confirmation requirement for payment over N500,000.00. She admitted that she did not confirm the transaction from the customer. That the claimant in paragraph 4.10 of her written address also made this point. That counsel stated therein: “The Defendant found as captured in the last paragraph of 4.0 of Exhibit D5 that Emilia Ezeji, the Branch Secretary “felt that the Account Officer already confirmed the transaction when she called and as such did not bother confirming the transaction directly from the customer”. That this evidence is consistent with the evidence repeatedly adduced by the defendant and also elicited from CW under cross-examination that it was her duty as Account Officer to confirm instructions from the customer. That it should be noted that Exhibit D5 was the Report of the Investigation into the incident and the findings therein are based on the interaction of the Investigation Unit with all the parties including their written statements. Exhibit D3 is the hand-written statement of Ms Emilia Ezeji. At lines 11 – 13 on page 2, she stated: “She then told me to forward Indemnity to them so I can treat it”; and at lines 7 – 9 on page 3, that: “I went ahead to treat, thinking that Lola (the Claimant) has confirmed as other marketers do”.

 

  1. To the defendant, the arguments in the claimant attempting to put a slant on Exhibit D5 that Exhibit D5 found that the fraudulent transaction was “consummated alone without the input of the Account Officer” and that “the transaction leading to the fraud loss was approved by Emilia Ezeji, the Secretary and Kunbi Kuti, the Retail Operation respectively” are misconceived. That the findings and recommendations in Exhibit D5 must be taken as a whole and not piecemeal. That it was the claimant’s duty as the Account Officer to confirm instructions or transactions from the customer, and she failed to do so in this case. She was negligent and or intentionally mismanaged her fiduciary duty. That paragraphs 4.10 – 4.12 of Exhibit D5 contain an account of Emilia Ezeji’s response to the query issued to her. Part of the initial allegation against her was that “she consummated a transaction of N2.5m alone without the input of the Account Officer”. This allegation was a question put to Emilia Ezeji, it was NOT a finding or conclusion of the defendant’s Internal Audit – Investigation Unit. That the conclusions of the defendant’s Internal Audit – Investigation Unit are contained in paragraphs 7.1 -7.7 of Exhibit D5 and they are clear and categorical.

 

  1. The defendant agreed with the authorities on negligence cited by the claimant but proceeded to submit that the defendant has adduced compelling evidence (even through CW in cross-examination) of breach of the duty of care and or the failure of the claimant to take reasonable care. That Exhibit D5 found the claimant, Ms Emilia Ezeji and Mr. Kunbi Kuti (who were involved in treating the spurious or fraudulent payment request) culpable to varying degrees. The conclusions in paragraphs 7.1 – 7.7 of Exhibit D5 are clear and unequivocal. In relation to the claimant, Exhibit D5 was categorical. In paragraph 7.4 of Exhibit D5, the Investigation Unit found conclusively that: “The transaction was successful due to the negligence of the Account Officer Omolola Ogungbuaro and the TO Emilia Ezeji”. That the totality of the findings and recommendations in Exhibit D5 show that the claimant and the others were clearly negligent and or they intentionally mismanaged their fiduciary responsibilities. Futher, that paragraph 8.2 of Exhibit D5 found the claimant culpable in the following terms: “The loss should be recovered from the Account Officer Omolola Ogungbuaro for not confirming the transaction, which was above the Bank’s confirmation threshold and Kunbi Kuti for not adhering completely to the provisions of the SOP on NCFT”. That the issue is clear, Exhibit D5 made a categorical finding of negligence against the claimant (referrng to paragraph 7.4 of Exhibit D5). That the claimant had clearly failed in the performance of her duty and a loss had resulted. The claimant was found culpable and recommended for sanction by way of surcharge for the loss. That there was nothing in the claimant’s case presentation (pleadings and or evidence-in-chief or elicited under cross-examination) to show that the claimant questioned or challenged the bonafide constitution or modus operandi of the defendant’s Investigation Unit. In fact, that DW was not cross-examined on Exhibit D5. The claimant is, therefore, deemed to have admitted Exhibit D5.

 

  1. The defendant then submitted that the real question is whether it was right for the defendant to impose the surcharge sanction on the claimant in the circumstances of this case. This Court previously held in Shefiu Adejare v. MDS Logistics Plc unreported Suit No. NICN/LA/20/2013, the judgment of which was delivered on 28th June 2016, that:

The Courts have generally held that an employee cannot be surcharged (i.e. make somebody repay from personal funds any losses stemming from negligent or intentional mismanagement of a fiduciary responsibility) by an employer without first being given a hearing on the issue; or where there are more than one culprits, the yardstick used for the apportionment of indebtedness and hence the surcharge. See Alhaji A.R. Animashaun v. UCH [1996] LPELR-492 (SC); [1996] 10 NWLR (Pt. 476) 65 and Abayomi Adesunbo Adetoro v. Access Bank unreported Suit No. NICN/LA/293/2013 the judgment of which was delivered on 23rd February 2016.

To the defendant, in the instant case, the claimant was afforded a hearing on the issue. That CW admitted under cross-examination that she was invited by an investigative panel of the defendant in respect of the incident and that she had the opportunity to state her side of the story at the investigation panel at the Audit Unit where she was asked to write her statement of what happened. That Exhibit D4 is the claimant’s hand-written statement dated 17th October 2013 to the Head of the defendant’s Investigation Unit. It was admitted in evidence and was not denied by the claimant. That there was more than one person involved in the incident leading to the loss. All of them were invited and heard, and after the investigation, the basis for the apportionment of the surcharge as between the persons involved (including the claimant) was communicated to them. The claimant even tried unsuccessfully to appeal against the surcharge.

 

  1. That the claimant had argued that “the sanctions prescribed in paragraph/clause 13.0 titled Disciplinary Rules and Procedure on pages 37 and 38 of Exhibit D1 which is the Defendant’s Employees Handbook were not strictly followed by the Defendant, which ultimately rendered the recommendations of the Internal Audit Investigation Unit also null and void”. The defendant referred to section 13.2 of Exhibit D1 (at page 37), which defines ‘Serious Offences’ to include: “Neglecting to perform any work, which it was his/her duty to have performed, or carelessly or improperly performing any work, which from its nature was his/her duty to perform carefully and properly”; and section 13.3.1 of Exhibit D 1 (at page 38), which states that: “If an employee is suspected of dishonesty or any other serious misconduct, such employee will be suspended from duty during which period investigations shall be concluded”. That in the course of her cross-examination, CW initially denied that she had been “invited by a disciplinary committee” in connection with the incident. She, however, then admitted that she “was invited by an investigative panel of the Defendant in respect of the incident”. That this was consistent with the provisions of Exhibit D1. That the arguments of the claimant on this point are, therefore, misconceived and an attempt to convolute issues.

 

  1. That the claimant attempted to make some kind of distinction between a disciplinary committee and an investigation panel of the defendant. That in relation to this incident in question and in line with Exhibit D1, the proper recourse of the defendant was to an investigative panel, section 13.3.1 providing for investigation of the ‘serious misconduct’. That there is no suggestion in section 13.0 of Exhibit D1 that the matter should be referred to a disciplinary committee. It is thus the claimant’s submission that in the circumstances of this case, the surcharge was right and met the criteria laid down by this Court in previous decisions following the decision of the Supreme Court. The defendant then urged the Court to resolve issue (1) in the defendant’s favour and hold that the deduction of the sum of N1,647,307.92 by the defendant from the claimant’s account in payment of the N1,625,000.00 (65%) surcharge for loss occasioned by the claimant’s negligent or intentional mismanagement of a fiduciary responsibility was lawful, fair, just, constitutional and so should not be paid back to the claimant. That the claimant’s reliefs (a), (b) and (c) should accordingly be refused.

 

  1. Issue (2) is whether the claimant is entitled to pre-judgment interest should the claimant be entitled to a refund of the surcharge. The claimant is claiming interest at the rate of Nigerian treasury bill of 12% on the N1,647,307.92 deducted from February 28, 2014 until judgment is delivered and thereafter until the judgment sum is fully liquidated. The defendant submitted that the claim for pre-judgment interest does not arise at all; and that even if it arises, the claimant is not entitled to it. That it is settled that for a claimant to be entitled to pre-judgment interest, he is required to plead the entitlement to the interest and the basis for the entitlement by statute or agreement between the parties, or under established mercantile custom or in equity, citing Dantama v. Unity Bank Plc [2015] 12 WRN 126 at 146. That in the present case, beyond the relief claimed, the claimant did not in her statement of facts or evidence plead any entitlement to pre-judgment interest and or the basis for same whether by statute or agreement between the parties, or under established mercantile custom or in equity. In any event, that the Rules of this Court recognize and allow only post-judgment interest and not pre-judgment interest, citing Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), which is in pari material with Order 21 Rule 4 of the NICN 2007, a provision interpreted by this Court in Kurt Severinsen v. Emerging Markets Telecommunication Service Limited [2012] 27 NLLR 374 at 464 as disallowing pre-judgment interset. That this Court cannot accordingly award the relief as to pre-judgment interest.

 

  1. Issue (3) is whether in the claimant is entitled to the other reliefs claimed i.e. the claim for general damages, the claim for reference letter and the claimant for cost. To the defendant, for the reasons already adduced, the claimant is not entitled to any of these reliefs. On the claim for general damages, the defendant referred to Ogbonna v. Ogbonna [2014] 23 WRN 48 at 103-104, and then submitted that it is difficult to see how the defendant’s action in surcharging the claimant for a portion of the loss suffered by the defendant as a result of the claimant’s negligence or dereliction of duty can immediately, directly and or proximately result in injury of the nature enumerated by the claimant i.e. “pain, traumatization, frustration, emotional injuries and loss of quality life” as to found a claim for general damages. That it is trite that for a party to be entitled to general damages, it must be established that he or she has suffered an injury or a wrong has been committed against him or her, citing Tawab Adedotun-Adekoya v. Union Bank of Nigeria Plc [2013] 35 NLLR 139 at 181. That the claimant’s claim for general damages, in order to succeed, must be premised on two things: the action of the defendant in surcharging the claimant must be found to be wrongful; and there must be evidence that the claimant has in consequence of the wrongful action suffered the pain, traumatization, frustration, emotional injuries and loss of quality of life which are the basis for her claim for damages. To the defendant, its action in surcharging the claimant was not wrongful, referring to its submissions as to issue (1). In any event, that there is no evidence that the claimant has in consequence of the action suffered the pain, traumatization, frustration, emotional injuries and loss of quality of life, which are the basis for her claim for damages.

 

  1. In paragraph 23 of her witness statement on oath, CW had asserted: “That when the impunity of the Defendant could no longer be condoned, I tendered my resignation letter on December 9, 2013. My resignation letter dated September 9, 2013 shall be relied upon at the trial of this suit”. To the defendant, indeed, the claimant tendered her resignation letter (Exhibit C8). That Exhibit C8 gives the lie to the assertion of the claimant in paragraph 23 of her witness statement on Oath; it stated the reason for her resignation as: “to further pursue my personal development that warrants me to resign my employment effective 31st December, 2013”. That Exhibit C8 is dated September 9, 2013 and had been written before the incident of 10th October 2013. That the claimant had clearly made up her mind to resign from her employment for personal reasons well before the incident of the fraudulent transfer and the action of the defendant in surcharging her. She however did not tender the said letter of resignation to the defendant until 9th December 2013. Her decision to resign her employment was, therefore, a well-considered decision that had nothing to do with the incident of 10th October 2013 or the sanction by the defendant or any alleged ‘impunity’ of the defendant. That the claimant as CW was not a witness of truth. That under cross-examination, she insisted that “it was the impunity of the defendant’s conduct that caused me to resign”. However, she went on to affirm her Exhibit C8 and she then agreed that “the reason given by me in Exhibit C8 suggests that my resignation was entirely at my volition and instance”.

 

  1. The defendant went on that in paragraph 31 of her witness statement CW stated thus: “That the actions of the Defendant have not only traumatized me emotionally but have also crippled me financially as I can no longer meet my financial obligations, medical liabilities and the immediate needs of my family”. That it is important to note that these averments of CW in her sworn testimony were contained in paragraphs 23 and 31 of the claimant’s statement of facts. That these averments were specifically denied by the defendant in paragraphs 18 and 21 of the amended statement of defence. That having been specifically controverted, it behooved on the claimant to prove the assertions by cogent and compelling evidence, which the claimant failed to do, citing section 131(1) of the Evidence Act 2011, and urging the Court to refuse the claim for general damages – the entitlement to same having not been proved by the claimant.

 

  1. On the claim for an unbiased and satisfactory reference letter, the defendant submitted that the claimant placed no material before the Court and adduced no evidence whatsoever in support of this claim. That there is nothing in the claimant’s two (2) witness statements giving evidence regarding reference letter for the claimant. That the relief is a bare claim hanging in the air and the submissions of the claimant are an attempt by the counsel to introduce evidence at the address stage, urging the Court to resist the attempt. That the claim must fail as there is no basis for the Court to grant it, urging the Court to so hold.

 

  1. On the claim for cost of instituting the action in the sum of N1,000,000.00, the claimant had tendered Exhibit C18, the Bill of Charges dated May 7, 2014. To the defendant, it is apparent on the face of Exhibit C18 that it is a Bill of Charges or an Invoice. It is not a receipt. That beyond the assertion of the claimant in paragraph 32 of her witness statement (which was controverted by the defendant), there is no credible evidence from the claimant of actual payment of the alleged professional fees of N1,000,000.00 to her solicitor. That under cross-examination, CW insisted that she paid the N1,000,000.00 to her lawyer; under further cross-examination on the point, she stated that the N1,000,000.00 was paid by her husband in two (2) tranches of N500,000.00 each but she did not know by what means her husband paid the N1,000,000.00. The defendant accordingly submitted that the evidence of the claimant should be taken with some circumspection. That the same CW had told an untruth regarding the reason for her resignation from the defendant’s employment. The defendant then urged the Court to hold that the claimant has not presented satisfactory evidence of payment of professional fees of N1,000,000.00 to her solicitor and to reject this claim. In any event, that the claim for reimbursement of the legal fees allegedly paid by the claimant to her solicitor is against the law, citing ‘Lai O. Oshisanya’s book, An Almanac of Contemporary Judicial Restatements at page 450 paragraphs 1173 and 1174, where the writer citing Guinness Nigeria Plc v. Nwoke [2001] FWLR (Pt. 36) 981 at 998, Nwanji v. Coastal Services (Nigeria) Ltd [2005] 1 CLRN 15-31 and Ihekwoaba v. ACB Ltd (1998) 10 NWLR (Pt. 570) 590, posited that:

It is unethical and an affront to public policy for a party to pass the burden of its solicitor’s fees to the other party through a claim for recovery of legal fees as an item of special damages. This is because what should preoccupy a court is whether the head of claim arises in the course of the transaction and as solicitor’s fees arises after the cause of action had arisen it is inadmissible neither is it cumulative to the tort in issue.

To the defendant, the position of the law is clear on this point, urging the Court to refuse this claim. In conclusion, the defendant urged the Court to resolve all three issues in its favour, hold that the claimant has not proved her entitlement to the reliefs claimed and dismiss the claimant’s claims with costs.

 

THE CLAIMANT’S REPLY ON POINTS OF LAW

  1. The claimant’s reply on points of law is both a rehash of earlier submissions made and an attempt to bring in arguments that she forgot to make in her final written address. Accordingly, it is needless reiterating these arguments here.

 

COURT’S DECISION

  1. In considering the merit of the claimant’s case, I start off with the claimant’s reply on points of law, which I indicated was both a rehash of earlier submissions and an attempt to bring in arguments that the claimant forgot to make in her final written address. Arguments as to paragraphs 4.3, 4.5 and 4.17 of Exhibit D5, failure of the defendant’s counsel to cross-examine CW on her written deposition in support of her reply to the amended statement of defence to the effect that contrary to paragraph 15(c) of the amended statement of defence, the transfer instruction emanated from plenconigeria@gmail.com, not plenconigerian@gmail.com, thus showing a tacit approval and correctness of the claimant’s position which is in consonance with the findings of the Internal Audit as captured in paragraphs 4.3, 4.5 and 4.17 of Exhibit D5, etc all fall within these categories. The law is that a reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). The claimant’s reply on points of law suffers from all of these (i.e. in rearguing the claimant’s case, bringing points that were forgotten and attempting to improve on the quality of/repair earlier submissions) and so is discountenanced. I so hold.

 

  1. At the trial, when the parties tendered their respective documents, they were told that they are at liberty to in their final written addresses address the Court on the evidential value of especially Exhibits C16 and D3. None of the parties did. Exhibit C16 is a document that is not signed but was passed off as an email. It has, however, no email address. In Mr Chukwuemeka Ohaukwu v. Guaranty Trust Bank Plc unreported Suit No. NICN/LA/40/2015, the judgment of which was delivered on 16th February 2018, this Court held as inadmissible and so had no evidential value a document said to be an attachment to an email but which did not carry a date or signature just as is the case regarding Exhibit C16 in the instant case. Exhibit D3 is a handwritten letter/memo from Emilia Ezeji to Head Investigation Unit. It is titled, “Fraudulent Transfer of N2.5m to Zenith Bank Ifo Callus Akaolise Chimezie with Account 2083183586 on Behalf of Plenco Industries Limited on 10th October 2013”. Exhibit D3 is not dated. The law is that an undated document has no evidential value. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47, Sarai v. Haruna [2008] 23 WRN 130, Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). All of this means that Exhibits C16 and D3, for the reasons adduced, have no evidential value. They are accordingly are discountenanced for purposes of this judgment. I so hold.

 

  1. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. From the reliefs claimed by the claimant, the issues before the Court are: the negligence of the claimant as alleged by the defendant, the surcharge of the claimant by the defendant in terms of the sums lost through the alleged negligence of the claimant, the claim for general damages for the consequent pain and emotional injures suffered by the claimant, and the claim for a satisfactory work reference. In all of this, the defendant acknowledged that it deducted N1,647,307.92 from the claimant’s account in payment of the N1,625,000.00 (65%) surcharge for loss occasioned by the claimant’s negligent or intentional mismanagement of a fiduciary responsibility. The defendant argued that this deduction is justified and urged the Court to hold that it was lawful, fair, just, constitutional and so should not be paid back to the claimant. The question that accordingly arises is whether the claimant was negligent, or intentionally mismanaged his fiduciary responsibility, which led to the loss complained of, as to justify the surcharge by the defendant. There is the further issue: even if the claimant was negligent, is it right for the defendant to surcharge the claimant as it did without giving the claimant a hearing, as the claimant argued?

 

  1. The claimant complained to the defendant vide Exhibits C7, C13 (and its attachments) and C17 about the latter’s decision to deduct monthly the sum of N81,250.00 for 20 months as surcharge regarding a N2.5 Million loss said to have been occasioned by the claimant. In rejecting the claimant’s complaint, the defendant vide Exhibit C14 informed the claimant that she was not accused of any fraud; rather, it was that she was liable for negligence (having not exercised care and diligence in the discharge of her duties) that led the bank to be defrauded in the sum of N2.5 Million, for which the claimant was surcharged. A customer of the defendant (Plenco Industries Limited) had complained to the defendant vide Exhibit D2 dated 11th October 2013 about an unauthorized transfer of N2.5 Million from its OD account number 0007087138 on 10th October 2013. The point of compliant was that Ms Emilia Ezeji responded to an email from plenconigerian@gmail.com, which is not Plenco Ind Ltd’s email – the real email being plenconigeria@gmail.com. Plenco complained that Ms Emilia Ezeji should have treated the email from plenconigerian@gamil.com as spam mail rather than sharing communication with it. Also that the cc that are mentioned in the email are fake. So when Ms Emelia Ezeji received instruction to transfer, it was from a fake email. I must state that in Exhibit D2, no where did Plenco complain against the claimant. All Plenco did was that on checking the email inbox of Ms Emilia Ezeji, they queried the claimant, who they acknowledged was their account officer, in order to ascertain the facts of the matter. The facts as they unearthed did not place any blame on the claimant. The written response of Ms Emilia Ezeji to all of this is Exhibit D3, which is undated and had been discountenanced. The claimant’s written response on her part is Exhibit D4 dated 17th October 2013, which response is in terms of the facts already highlighted in paragraphs 4 and 5 above of this judgment.

 

  1. The report of the internal audit investigation of the defendant regarding the matter is Exhibit D5 dated 21st October 2013. Paragraph 4.0 of Exhibit D5 is titled, “Findings”. Under this paragraph 4, it was found/established that plenco’s authorized email with the defendant is plenconigeria@gmail.com; and that the email the claimant and Emilia Ezeji received on 10th October 2013 was from plenconigeria@gmail.com. In other words, the claimant received the email of 10th October 2013 from plenco’s authorized email, which email informed them that Plenco would like to make a transfer from their account number 0007087138 to account number 2083183586 belonging to Callus Akaolise Chimezie in Zenith Bank said to be payment for clearing of goods. Also found was that Emilia asked for an indemnity from Plenco, which indemnity was completed and forwarded via the same email, plenconigeria@gmail.com with a request to transfer the sum. Emilia took the instruction and indemnity to Retail Operations Unit to effect the transaction, which was done in the sum of N2.5 Million. It was when Plenco saw the debit alert that they contacted the claimant, requesting to know what the debit alert was for as they did not authorize any transection. While this was ongoing on 11th October 2013, another instruction to this time transfer N5 Million to the account of Paul Okonkwo in Zenith Bank was received from same plenconigeria@gmail.com. The evidence before the audit investigation unit was that Emilia “felt the Account Officer already confirmed the transaction when she called her and as such did not bother confirming the transaction directly from the customer”. On being asked why she consummated a transaction of N2.5 Million alone without the input of the Account Officer, Emilia claimed that she was saddled with such responsibilities in the branch which included treating customer’s transfers of any amount (when marketers) are not around. Also that she did not realize the difference in the email address until it was pointed out to her when she was asked to “reply all”; it was then that she saw the “n” that was added to the customer’s genuine email address.

 

  1. Still under “Findings”, the audit investigation unit restated the claimant’s position in terms of Exhibit D4. The audit investigation unit further found that it was Emilia who confirmed the transaction as ok as she wrote on the instruction “Ok to treat by Amit”; and that the claimant admitted that she did not confirm the transaction before it was treated. It was after its findings that the audit investigation unit proceeded to make its observations, which include: plenconigeria@gmail.com, the actual email address of Plenco, was used in sending the email; however, replies to the mail were redirected to plenconigerian@gmail.com with the letter “n” inserted to the word “nigeria”. Also observed is that the transfer instruction was sent using letterhead similar to the one used by Plenco in forwarding their complaints to the bank, and the signature on the instruction also appeared genuine when compared with customer’s mandate. Despite these findings and observations, the audit investigation unit came to the conclusion that they transaction was successful due to the negligence of the Account Officer (the claimant) and Emilia Ezeji; and that “although the Retail Operations staff carried out about 90% of what was expected of them, they failed to obtain the concurrence of a Senior Manager in Retail Operations as provided in the SOP”. The audit investigation unit then recommended that the loss be recovered from the claimant and Kunbi Kuti in the ratio of 65:35 i.e. N1,625,000.00 and N875,000.000 respectively. For Emilia, it was recommended that she should be returned to her employer (MS Outsourcing).

 

  1. Given the findings of the audit investigation unit as per paragraph 4.0 of Exhibit D5, could the audit investigation unit have come to the conclusions it came to as to warrant the recommendation it made against the claimant? The claimant thinks not; the defendant thinks so. I have carefully considered the findings/observations, conclusions and recommendations of the audit investigation unit, and I have difficulty coming to the conclusion that the conclusions and recommendations of the audit investigation unit are necessarily correlated with its findings. What I see and so find is that the audit investigation unit made a finding and then recommended something different, unrelated to the findings. For instance, it cannot be found that the claimant did not confirm the transaction, find also that Emilia felt that the claimant already confirmed the transaction (note that the word is “felt”), find that the letterhead and signature instructing the transfer appear genuine, and yet come to the conclusion that the claimant is negligence. What is it that the claimant did that a reasonable man would not do, or did not do what a reasonable man would do? The particulars of negligence listed in paragraph 15 of the amended statement of defence do not satisfactorily answer these questions – not with the findings of the audit investigation unit as contained in paragraph 4.0 of Exhibit D5. I so find and hold. This being so, I find and hold that the claimant was not negligent. Relief (a) has according been proved and so is hereby granted.

 

  1. Even if the claimant was negligent (which I find she is not), does the defendant have the right to surcharge the claimant as it did? Citing Shefiu Adejare v. MDS Logistics Plc unreported Suit No. NICN/LA/20/2013, the judgment of which was delivered on 28th June 2016, the defendant agued that it had the right to surcharge the claimant as it did. The defendant further argued that the claimant was afforded a hearing on the issue and that the claimant admitted under cross-examination that she was invited by an investigative panel of the defendant in respect of the incident and that she had the opportunity to state her side of the story at the investigation panel at the Audit Unit where she was asked to write her statement of what happened, referring to Exhibit D4. I think the defendant misunderstands the ratio of this Court in Shefiu Adejare. When this Court, referring to Alhaji A.R. Animashaun v. UCH [1996] LPELR-492 (SC); [1996] 10 NWLR (Pt. 476) 65 and Abayomi Adesunbo Adetoro v. Access Bank unreported Suit No. NICN/LA/293/2013 the judgment of which was delivered on 23rd February 2016, held in Shefiu Adejare that “the Courts have generally held that an employee cannot be surcharged (i.e. make somebody repay from personal funds any losses stemming from negligent or intentional mismanagement of a fiduciary responsibility) by an employer without first being given a hearing on the issue; or where there are more than one culprits, the yardstick used for the apportionment of indebtedness and hence the surcharge”, the hearing referred to is a hearing as to the surcharge, not a hearing as to the alleged wrongdoing. All the audit investigation unit did in Exhibit D5 was come to the conclusion that the claimant is negligent and so should be surcharged. The claimant was not heard on the surcharge itself. There are two levels of investigation expected here: the one to establish guilt of the employee; the other to justify the surcharge as well as the yardstick for imposing the surcharge where there are more than one culprits. The defendant assumes the first, the investigation to establish guilt, suffices for the second. This is a wrong assumption on the part of the defendant; and I so hold.

 

  1. Secondly, the audit investigation unit recommended in paragraph 8.8 of Exhibit D5 that the loss be recovered from the claimant and Kunbi Kuti in the ratio of 65:35 i.e. N1,625,000.00 and N875,000.000 respectively. In paragraph 8.2, all the audit investigation unit said was that the loss should be recovered from the claimant for not confirming the transaction, which was above the bank’s confirmation threshold and from Kunbi Kuti for not adhering completely to the provisions of the SOP on NCFT. Where then is the yardstick by which the audit investigation unit came to the conclusion that the claimant’s share of the fault amounts to 65% in order to justify the 65:35 ratio used in apportioning the loss? Emilia was found culpable. Where is her own share of the loss? Or the defendant thinks that merely sending her to her employer, MS Outsourcing, is sufficient? As it is, the defendant has not shown any justification to warrant surcharging the claimant as it did. As such relief (b) as well as relief (c), but not in terms of the claim for interest, have been proved and so are hereby granted.

 

  1. The claim for interest in relief (c) is a claim for pre-judgment interest. I agree with the defendant given Kurt Severinsen v. Emerging Markets Telecommunication Service Limited [2012] 27 NLLR 374 at 464 that this Court does not grant pre-judgment interest. As such, the claim for pre-judgment interest under relief (c) fails and so is dismissed.

 

  1. Relief (d) is for N25 Million being general damages in favour of the claimant for the pain, traumatization, frustration, emotional injuries and loss of quality life suffered as a result of the defendant’s action. Attached as Annexure I to Exhibit C13 is the claimant’s resignation letter dated September 9, 2013. The events leading to the surcharge of the claimant started on 10th October 2013 long after the claimant decided to resign her employment with the defendant. So, and here I agree with the defendant, that I do not see how these events caused the claimant “the pain, traumatization, frustration, emotional injuries and loss of quality life suffered” and how they are “a result of the defendant’s action”. I acknowledge that in the resignation letter, the claimant indicated that the resignation is with effect from 31st December 2013. However, even at this, it is still not clear what the said “pain, traumatization, frustration, emotional injuries and loss of quality life suffered” are beyond a mere pleading in paragraph 31 of the statement of facts that the actions of the defendant traumatized her emotionally and crippled her financially. As it is, no entitlement to relief (d) has been proved. It fails and so is dismissed.

 

  1. Relief (e) is for “an order directing/compelling the defendant to give the claimant an unbiased and satisfactory reference letter upon demand”. There is no pleading supporting this relief. In Ogunbayo Oluwole Michael v. Fidelity Bank Plc & anor unreported Suit No. NICN/LA/350/2013, the judgment of which was delivered on 13th December 2017, the claim for work reference which was unsupported by any pleading was rejected by this Court. As it is, relief (e) fails and so is hereby dismissed.

 

  1. Relief (f) is for cost in the sum of N1 Million. What the claimant adduced as evidence is Exhibit C18, the Bill of Charges sent to her by her solicitor, and her word that it was her husband who paid the N1 Million in two tranches of N500,000 each. Though cost is at the discretion of the Court, the claim for it is a claim for special damages, and succeed only upon compelling evidence and correct and convincing reasons. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), Anyaegbunam v. Osaka [1993] 5 NWLR (Pt. 294) 449, Obayagbona v. Obazee [1972] 5 SC 247 and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). I have not been satisfactorily shown why I should grant cost to the claimant. Relief (f) accordingly fails and so is hereby dismissed.

 

  1. On the whole, and for the reasons given, only reliefs (a), (b) and (c) succeed in terms hereby granted. Accordingly, I order as follows:
  • It is hereby declared that the claimant was not negligent and as a result, the recommendation of the management of the defendant on October 23, 2014 indicting the claimant is null and void.
  • It is hereby declared that the various sums of money deducted by the defendant from the accounts of the claimant are illegal, unconstitutional, null and void and same are hereby reversed.
  • It is hereby declared that the sum of N1,647,307.92 (One Million, Six Hundred and Forty-Seven Thousand, Three Hundred and Seven Naira, Ninety-Two Kobo) being the total sum of money the defendant illegally deducted from the claimant’s various accounts should be refunded to the claimant by the defendant.
  • The said sum of N1,647,307.92 (One Million, Six Hundred and Forty-Seven Thousand, Three Hundred and Seven Naira, Ninety-Two Kobo) is to be paid by the defendant to the claimant within 30 days of this judgment, failing which it shall attract interest at 10% per annum until fully liquidated.

 

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

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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