Omolegho Oisamoje -VS- Eco Bank Nigerial Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATED: 15^TH JANUARY, 2019 SUIT NO: NICN/BEN/16/2017

BETWEEN

OMOLEGHO OISAMOJE CLAIMANT

AND

ECOBANK NIGERIA LIMITED DEFENDANT

REPRESENTATION:-

S. OISAMOJE FOR THE CLAIMANT,

ABAYOMI IDOWU FOR THE DEFENDANT.

JUDGMENT

The Claimant by a Complaint before this Honourable Court on the 7^thJune, 2017 claims against the Defendant as follow:

(a) AN ORDER of payment of N100,000,000.00 (One hundred million naira) only for General Damages by the Defendant for the wrongful termination of the employment of the Claimant by the Defendant.

(b) AN ORDER for the payment of Specific Damages of N5,420,065.12 to the Claimant as part of her entitlements as a staff of the Defendant.

(c) AN ORDER of declaration that the termination of the Claimant by the Defendant vide letter dated 22^nd November, 2016 is wrongful.

(d) And for such further orders this Honourable Court deems fit to meet the justice of this case.

The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, witness deposition on oath, list of witness and documents to be relied upon.

The Claimant’s case is that she was employed by the Defendant vide a letter dated 26^th September, 2006, and she had served the defendant diligently in the course of her employment, this suit arose out of a personal transaction on her account with the Defendant when a cheque of N122,833.30 (One hundred and twenty two thousand, eight hundred and thirty three naira, thirty kobo) issued by her in favour of Credit Direct Ltd, was declined on 26^th October, 2016, on the ground that the account was not funded, despite the fact that she had on the same day transferred a sum of N18,000.00 (eighteen thousand naira) to the account to make up for any shortfall.

The claimant averred that the Defendant had no reason for dishonouring the cheque, with no reference made to her. The Claimant stated that when she resumed in her office the next day, and learnt about the embarrassing situation, she questioned the return of the cheque vide a mail to one SENBANJO OYETOLA ADEFUNKE and copied OLAYINKA JOHN, they however failed to reply the mail immediately with the latter sending an apology to her later. The claimant relied on the transfer of N18,000.00 to her account and the mail sent to the above named officials of the 1^st Defendant. On the 9^th of November, 2016, the defendant issued her query for issuing a dud cheque to which she responded and denied the allegation. The defendant later terminated her appointment vide a letter dated 22^nd November, 2016 effective from 23^rd day of November, 2016. The claimant alleged that she was informed at the Human Resources Department that her appointment was terminated as a result of the dishonoured cheque she issued to Direct Credit Limited.

The Claimant averred that since the termination of her appointment, the defendant have failed, refused and/or neglected to pay the Claimant her severance allowance in the sum of N4,177,523.31 and illegally deducted one month salary in lieu of notice from the gratuity paid to her, hence she is seeking the reliefs as set out above.

The Defendant filed its Statement of Defence on the 27^th of July, 2017. The Defendant’s case is that the claimant issued a dud cheque on her salary account which amounted to the highest misconduct and a breach of the professional ethics of bankers, and a criminal offence in Nigeria. The conduct of the claimant, the defendant averred is against the policy of the defendant and the Central Bank of Nigeria (C.B.N). Moreover, the claimant had earlier been warned about the issuance of dud cheques under a risk of sanction.

It was against this background that the claimant issued another cheque against an unfunded account that resulted in the termination of her appointment. The Defendant stated that the balance on the Claimant’s salary account No. 0022042397 as at 26^th October, 2016 was N122,355.60 and a cheque of N122,833.36 was presented by Credit Direct Ltd, through clearing, hence the cheque was dishonoured. The defendant stated that it is the duty of the claimant to ensure that her account is adequately funded against any transaction and as a staff of the defendant, the claimant is aware of the implication of issuing a cheque on an unfunded account.

The defendant admitted that the claimant was disengaged from her employment in line with the policy of the Bank on the issuance of dud cheques and she was paid her gratuity and the requisite one month salary in lieu of notice on 8^th February, 2017, however, the claimant is not entitled to be paid any leave allowance as this is factored in the monthly salary of staff, and she is not entitled to severance allowance because her appointment was terminated for issuance of a dud cheque and no other payment is due to her.

Finally, the defendant raised a special defence of exturpi causa oritur non actio to the Claimant’s action in its pleadings, by virtue of the fact that the claimant’s action is tainted with illegalities and lack of compliance with the banking regulations and Act of National Assembly.

The trial in this case commenced on the 29^th of February, 2018, with the Claimant testifying for herself as CW1, she adopted her written statement on oath, she also tendered some documents which were admitted by the Court in evidence and marked Exhibits O1-O14(i) – (xi) and was duly cross examined. The Claimant thereafter closed her case.

The Defendant opened its defence by calling Mr. Francis Dehinbo, Human Resources Officer of the Defendant as DW1, he adopted his written statement on oath and tendered documents that were admitted and marked Exhibits E1- E4(1-10) and was cross examined, the Defence closed its case and the case was adjourned for Adoption of Final Written Addresses.

Parties adopted their final written addresses on the 18^th of October, 2018. with the Defendant adopting its Final Written Address filed on the On 13^th July, 2018. The Defendant formulated three (3) issues for the effective determination of this case, to wit:

Whether there has been a breach of contract of employment on the part of either party to the proceedings.
Whether the claimant’s evidence before the court establishes any liability or breach of contract on the part of the defendant to warrant the granting of the reliefs sought against the defendant.
Whether by the claimant’s pleadings and evidence before the court the defendant is liable to pay the sums claimed either as specific or general damages.

On issues 1 and 2, the defendant submitted that the terms and conditions of employment is the bedrock of the contract of employment between an employer and an employee, upon which the rights of parties will be determined. Learned counsel argued that the employment relationship between the parties in this case is that of master/servant with no statutory flavor, it has been held in a plethora of authorities and affirmed by the Court of Appeal in OSUMAH V E.B.S (2004) 17 NWLR part 902 p.332 at 355 paragraph D-E that parties are bound by the written and express terms of the employment contract, so he submitted. It is also an elementary principle of law that an employer is not under any form of obligation to give a query nor reason for terminating an employee as the court will not impose an employee on an unwilling employer, citing OLAREWAJU V AFRIBANK (NIG) PLC (2001) 13 NWLR 691 part 731 at 705, paragraph A-D, 716, paragraphs D – E.

Adeniyi Ojo of counsel for the defendant submitted that the termination was based on justifiable cause, that is, the claimant’s disobedience of laid down regulations of the defendant which are binding on every employee. More critically, these regulations are themselves based on the policy and guidelines for the banking industry as issued by the Central Bank of Nigeria and circulated from time to time. Specifically, the claimant was found to have issued a cheque on an unfunded account domiciled with the defendant in favour of Credit Direct Ltd, a third party. The defendant relied on Exhibit E2 which shows the trail of the failed transaction leading to the dishonored cheque. The defendant’s counsel argued that although the claimant denied this and claimed that the account was sufficiently funded to meet the sum contained in Exhibit E3, Exhibit E2 discloses otherwise he surmised that the claimant knew that the account was not sufficiently funded and that was the reason why she transferred money to the account that same day in a bid to cover up, the transfer was however done after Exhibit E3 had been presented and rejected, this clearly constituted a wilful violation of set standards. The defendant cited paragraph ix of Exhibit O10, and the Dishonored (Dud) Cheques Act of 1977, now captured in Section 1(b)(i) of the Dishonored Cheques (Offences) Act, Chapter D11, Laws of the Federation of Nigeria 2004.

The defendant submitted that Exhibit O10 especially paragraph ix, and Exhibits O13 and O14(i) – (xi) as well as the circumstantial evidence leading to the termination of the claimant’s employment, discloses that the defendant has an obligation to take definitive steps in the instance of infractions such as the claimant had committed in the circumstance as same constitutes a gross violation of paragraph 2.5 (j) of Exhibit O14. The defendant submits that the claimant has no cause of action against the defendant, as the claimant was in breach of the conditions of her employment which resulted in the termination of her appointment.

Learned counsel for the defendant further submitted that there is in evidence before this court documents showing the terms and conditions of service, binding on the conduct of staff in the employment of the defendant or similar other operators in the banking industry, counsel submitted that the claimant, have failed to show how the terms of service or condition was breached hence the court has no basis to find for the claimant. He posited that the employee retains the onus of proof in a case of wrongful termination, and this can only be discharged by; (i) placing before the court the terms and conditions of the contract of employment; and (ii) prove in what manner the said terms were breached by the employer, citing OSIYEMI VS SOCIETE GENERALE BANK LTD (2001) 11 NWLR (PART 725) AT PAGE 563. He stated that the claimant was aware that the failure to fulfill her financial obligation carried severe consequences. The termination therefore was not only inevitable and based on just cause, it was by law the least of the punishments that the claimant should have been liable for in the circumstance.

On issue three, counsel submitted that it is trite law that the burden of proving a particular fact is on the party who asserts it, he cited UNION BANK OF NIGERIA LTD V OZIGI (1994) 3 NWLR (PART 333) 385 AT 407 PARAGRAPHS C-E and argued that the claimant in this case had a fundamental obligation imposed by law to establish through credible evidence that the defendant breached the terms of service either during or at the time of the termination of the employment. This, he submits, from the totality of the evidence in this case the claimant has failed to do, hence she is not entitled to the reliefs sought and the claim should be dismissed in its entirety. Learned counsel cited Section 133(1) of the Evidence Act 2011 and ADEMOLA VS SEVEN–UP BOTTLING. CO PLC (2004) 8 NWLR (PART 874) 134 @ Pgs 147 -148.

In conclusion, the defendant’s counsel urged the Court to dismiss this suit in its entirety for being frivolous and gold digging with substantial cost.

The Claimant on her own part filed her Final Written Address on 16^th July, 2018 where four (4) issues were formulated for determination to wit:

Whether considering the state of our law, Judicial Authorities and the inherent jurisdiction of this Honourable Court, this court should not rely on Exhibits 013, 014(i)-(xi), witness statement on oath of DW1, Exhibits E1, E2, E3 and E4 (1) – (10).

Whether Defendant having failed to prove the issuance of dud cheque against the Claimant coupled with the failure to accompany the Letter of Termination of Claimant’s employment with the payment of one month salary in lieu of notice, the Defendant is not liable to substantial damages to Claimant for wrongful termination of employment.

Whether on the state of the pleadings and evidence produced before this Honourable Court the Claimant has proved her case as to entitle her to the reliefs sought from this Honourable Court.

Whether considering the state of evidence placed before this Honourable Court, the Defendant should not be denied the defence of “EXTURPI CAUSA ORITUR NON ACTIO”

Learned Counsel for the Claimant referred the Court to the case of BUHARI V. INEC (2008) 12 KLR (Pt. 260) 3421 at 3553 Paragraph C – D. where the Supreme Court held that “A court can always reconsider its earlier decision on the admissibility or inadmissibility of document at the state of writing judgment”.

hence this Court cannot be said to be functus officio with respect to reconsidering its decisions on the admissibility of the documents hereunder earlier admitted, he referred to EXHIBIT O13 and EXHIBIT O14 (i) – (xi), and submitted that the cited exhibits were documents issued by the Central Bank of Nigeria, and are by their nature public documents, of which only certified true copies of same are admissible in law, citing ARAKA V EGBE (2003) 17 NWLR (PT. 848)1. The documents admitted as Exhibit O13 and Exhibit O14 (i-ix) are not certified true copies of the originals but uncertified photocopies. B.S Oisamoje of counsel for the claimant submitted that the Court like any other superior Court of records, has the vires to expunge documents wrongly admitted at the judgment stage, he cited NWAOGU V ATUMA (2013) 12 KLR (PT 338) 4491 AT 450G AT PAGE 4504 paragraph H.

He therefore urged the Court to revisit the admission of both Exhibits 013 and 014 (i) – (xi) and expunge same.

Learned Counsel noted that the testimony of DW1 is hearsay evidence by virtue of Section 115, Evidence Act, 2011 as amended, particularly subsections (3) and (4) thereof, and stated that his testimony should be rejected, on Exhibits E1, E2 and E4 (1)-(10) B.S Oisamoje of counsel submitted that these documents are all computer generated documents and can only be admissible after fulfilling the requirements in Section 84, Evidence Act, 2011 as amended. He also cited KUBOR V DICKSON (2013) 4 NWLR (PT 1345) 534; (2012) 9-12 KLR (PT 318) 3121 AT 3147 – 3148 paragraphs H-G. and that since this requirement was not fulfilled, the documents are inadmissible, he therefore urged the Court to expunge the said Exhibits E1, E2, E3, and E4 (1) – (10).

On issue two, the Claimant submitted that the opening amount in Exhibit O2 is N105,000.47 and that under cross examination, the Claimant confirmed paying the sum of N18,000.00 by electronic transfer in early hours of 26^th October, 2016, which brings the total amount standing to her credit in her account no. 0022042397 with the defendant to N123,000.47 which is more than enough to satisfy the cheque for N122,833.36 , he therefore opined that one of the duties of a banker is to honour his customer’s cheque without delay provided the account on which it is drawn is in credit and sufficient to pay the cheque or the amount stated thereof within the limit of an agreed overdraft. He submitted therefore that the bank failed in its duty to the claimant who was not just an employee of the defendant but also a customer. Learned counsel further pointed out that the defendant’s refusal to pay the claimant her severance Allowance as admitted in paragraph 25 of the Witness Statement on Oath of DW1 and paragraphs 24 of the Statement of Defence, was based on the issue of the alleged dud cheque, counsel argued that claimant’s appointment was terminated vide Exhibit O11 and this did not amount to a dismissal, therefore the defendant cannot turn round to refuse to pay the severance Allowance of N4,177,523.31 due to the claimant, especially when the allegation of issuance of dud cheque was not substantiated by the Defendant. He therefore urged the Court to resolve issue two in favour of the claimant.

On issue three, learned counsel submitted that this suit was not defended by virtue of the violation of Section 115 (3) and (4) of the Evidence Act, 2011, as the witness Statement on Oath of DW1 is full of hearsay .

Learned counsel for the claimant submitted on the refusal of the defendant to grant the claimant leave, that a deposition ordered by this Court as a result of the Defendant’s refusal to produce the tape recording of the discussions between the Zonal Head of Operations of the Defendant and the Claimant, is evidence that her request for leave was refused, hence she is entitled to one month salary in lieu.

On issue four, Counsel submitted that the doctrine of “Ex turpi causa oritur non actio” simply means “a party does not have a right to enforce performance of an agreement founded on a consideration that is contrary to the public interest”. He cited BLACK’S LAW DICTIONARY, 7^TH Edition, page 607 by Bryan A. Garner and the evidence before the court, and submitted that such an agreement contrary to the public interest was not disclosed at the trial of this case. The only agreement before this court is the contract of employment between the claimant and the defendant and that of Banker/Customer. He cited CHUKWUMA V SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA (1993) 4 NWLR (PT 289) 512, COMMISSIONERS OF TAXATION V ENGLISH, SCOTTISH AND AUSTRALIAN BANK LTD (1920) AC 683.

Learned counsel submitted further that the defendant failed to prove the commission of a crime against the Claimant and therefore urged the Court to resolve this issue in favour of the Claimant.

The Defendant filed a Reply on point of Law on the 3^rd of October, 2018 wherein he submitted that the arguments that Exhibits O13 and O14 (i-xi) should not be relied upon by the court as they are uncertified public documents is unmeritorious as the Exhibits were admitted without objection by the claimant, hence he cannot now turn around to object at this stage, more so the documents are relevant. Learned counsel for the Defendant further argued that the contention of the claimant that part of the DW1’s evidence in chief amounts to hearsay is misconceived as DW1 testified as an agent of the defendant who possesses the knowledge of the internal workings of the defendant, and by virtue of his position in full grasp of what transpired in this case. In respect of the contention of the claimant as to whether Exhibits E1 –E4 (1-10) tendered by DW1 are admissible in Law in the absence of a certificate of compliance as mandated by Section 84 of the Evidence Act, 2011, for electronic evidence, Defendant’s counsel submitted that since the certificate required is subsequent to and not a condition precedent to the e-documents to be tendered, this should not detract from the admissibility of these documents, as to do so, will imply that technicality is allowed to defeat the justice of a matter. Learned counsel argued that the claimant had attempted in their address to give evidence, and that this is unacceptable, he reiterated that the defendant never admitted any of the claims or that the claimant’s account was properly funded. On the special defence set up by the Defendant, that is, “EX TURPI CAUSA NON ORITOR ACTIO” defendant’s counsel submitted that the claimant is in breach of her contract of employment for which she is claiming certain entitlements, and thus cannot be entitled to the reliefs sought. Lastly, counsel observed that the Claimant filed a Reply to the Defendant’s final written address, this he submitted was strange. (This last issue has however been overtaken by event as the Claimant withdrew same during the adoption of the Final written Addresses and same was accordingly struck out). The Defendant finally urged the court to dismiss the suit.

I have painstakingly read all the processes filed in this case, I have also listened to the two witnesses called by both parties in respect of their case, and read all the Exhibits tendered, I have thereafter formulated two issues that will best determine this case:

Whether the termination of the claimant’s employment by the Defendant is proper.
Whether the claimant is entitled to the monetary reliefs as stated in the Complaint and Statements of Facts.

The contention of the claimant’s counsel on the admissibility of Exhibits O13, O14 i-xi, E I- E4 (1-10) and DW1’s witness statement on oath will however have to be resolved first. Learned counsel for the claimant had argued that Exhibits 013 and O14 are public documents and ought to have been duly certified as provided for by Section 102 of the Evidence Act, the Defendant however argued that these documents were admitted without objection by the Claimant’s counsel, relevant and were released to the public domain and as such falls within the purview of matters the courts will take judicial notice of, he cited FBIR V. HALIBURTON (WA) LTD 2016 4 N.W.L.R Part 1501, 53 @86 paragraph F to buttress his point, he further submitted that the categories of items the court can take judicial notice of are not closed. What can be deduced from the argument of both counsel is that, the fact that the two Exhibits in question are public documents are not in doubt. The position of the Law was succinctly espoused in UNION BANK OF NIGERIA PLC & ANOR V. IFEOLUWA NIGERIA ENTERPRISES LTD 2007 NWLR PT1032 where Agbo JCA held:

“The Central Bank of Nigeria from time to time prepares a list of charges, guidelines and policy pursuant to powers vested inn it by S. 15 of the Banking Act. These policy documents are commonly referred to in the banking community as Central Bank Guidelines. They are not subsidiary legislations and do not fall into the class of documents the court must take judicial notice of, any Central Bank guideline relied upon, must therefore be proved in evidence by producing same in court.”

It is also settled Law that public Documents are documents that emanates from public authorities, see OKOCHA & ANOR V.INEC &ORS 2010 LPELR 4718CA and OMISORE & ANOR V. AREGBESOLA & ORS 2015 LPELR 2015 24803 SC. Exhibit O13 having emanated from the Central Bank of Nigeria, a public body, is a public document and are not of a class which the court can take judicial notice of, likewise Exhibit O14 i-xi issued by the Chartered Institute of Bankers of Nigeria (CIBN) a body created by a Federal Act. As such they ought to have been duly certified, it is the position of the law that a document wrongly admitted or inadmissible in law are to be discountenanced, Exhibits O13 and 014 i-xi are therefore accordingly expunged in this suit as they are inadmissible in Law having contravened Section 102 of the Evidence Act. I so hold.

On Exhibits E1, E2, E3 and E4 1-10, counsel for the claimant based his objection on Section 84 of the Evidence Act, and argued that since these Exhibits are computer generated, they ought to have been accompanied by a certificate of compliance, having failed to fulfill this requirement, he urged the court to discountenance same, learned counsel for the Defendant however argued that the non-inclusion of the certificate of compliance with these documents cannot detract from its admissibility, more so it was the error of counsel which should not be visited on the Defendant, he also made a strange submission in his paragraph 9 of the Reply to the Claimant’s Final Written Address and I quote:

“The said error has since been regularized and this subject to the leave of the court”

I have gone through the record of court, and I find no record of any process or certificate of compliance in respect of the above filed by the Defendant in this case, hence his submission quoted above and included in his Reply to the Defendant’s final written Address is to me curious. Nonetheless, having examined the argument of counsel on both sides on the admissibility of Exhibits E1, E2, E3 and E4 1-10, I find that Section 84 of the Evidence Act makes it mandatory for oral or documentary evidence should be adduced in compliance with the requirement of the Evidence Act before any computer generated documents are admissible, see HON HENRY SERIAKE DICKSON V. CHIEF TIMIPRE MARLIN SYLVA & ORS 2016 LPELR 41257 SC, there is however no such evidence made available in respect of these Exhibits. A cursory look at Exhibit E1 discloses that it is a copy of a letter dated 9^th of December, 2015 titled “FINAL WARNING RETURNED CHEQUE” addressed to the claimant, this exhibit is a copy of a letter signed by Nora Akinyemi, Head HR of the Defendant and addressed to the Claimant hence need no certificate of compliance, as it is the position of the Law that Section 84(2) of the Evidence Act is only to ensure accuracy of the information generated, hence the requirement under that provision will not cover letters exchanged or meant to be exchanged in hard copies. Exhibits E2 and E4 1-10 however are computer generated Bank statements of Account hence the requirement under Section 84 (2) of the Evidence Act cannot be waived, the documents are inadmissible having contravened section 84 (2) of the Evidence Act. Exhibit E3 on the other hand is a photocopy of cheque written by the Claimant, and is therefore admissible for the reason adduced above, in all Exhibits E1 and E3 are admissible in Law and properly admitted, while Exhibits E2 and E4 1-10 are inadmissible in law and are hereby discountenanced. I so hold.

On whether the statement of Dehinbo Francis who testified as DW1 contravened Section 115 of the Evidence Act, the contention of the claimant’s counsel is that DW1 gave evidence in respect of facts outside his personal knowledge and this amounts to hearsay, citing his evidence that the apology of one Mr Olayinka John (a staff of the defendant) to the claimant was in response to his failure to respond to an email on the returned cheque and not for dishonouring the cheque, the claimant relied heavily on the email in this case. On the testimony of DW1, claimant’s counsel had argued that DW1 did not disclose the source of his information, hence the testimony should be rejected, learned counsel for the Defendant on the other argued that DW1 gave evidence based on facts revealed to him by virtue of his office, hence his evidence cannot be faulted, more so considering that the evidence of DW1 was in response to the claimants averment in paragraph 9 of the Statement of Facts and paragraphs 9,10 and 12 of CW1’s deposition on oath. It is not in doubt, as held by the courts, that affidavit evidence is different from statement of witness on oath. While the latter is subject to cross examination and is therefore superior, the former is a deposition simpliciter made before a Commissioner for Oaths. Witness statements on Oath becomes evidence upon the witness been deposed by the court and adopting his/her statement, which is then subject to cross examination. See KALU IGU UDUMA V. PRINCE ARUA ARUNSI & 14 ORS 2010 LPELR 9133 CA, DW1 gave evidence from facts derived from his knowledge as a staff the Defendant, his evidence is in defence of this suit, and if any part of it is found to be hearsay, the court will not ascribe any probative value thereto. I therefore hold that the deposition of DW1 is admissible as his testimony in this case, the weight to be attached to it is however left for the court. I so hold.

I will now go to the issues identified for determination in this case, the first issue so identified by me is:

Whether the termination of the claimant’s employment by the Defendant is proper.

The claimant’s case is that her appointment was terminated by the Defendant on the 22^nd of November, 2016 to take effect from 23^rd November, 2016 vide Exhibit O11.The content of the said exhibit reads as follows:

We write to advise you that in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its right to determine the contract, effective November 23, 2016 because your service are no longer required by the Bank.

Accordingly, you are entitled to one month’s salary in lieu of notice upon completion of exit clearance in this regard, the computation of this entitlement together with any others, which you may be entitled to shall be prepared vis-à-vis any indebtedness you may have to the Bank, and shall be communicated to you very shortly.

Please note that the applicable computed exit benefits/entitlement (if any) will not be accessible until you have fully completed the mandatory exit clearance process in line with the policy of the Bank.

You are required to hand over all the Bank’s property in your possession including the staff identity card to you supervisor.

We thank you for your services to the Bank and wish you the best of luck in your future endeavors. {sgd}

Apart from the above it is the claimant’s case that her appointment was terminated because of an allegation that she issued a dud cheque, the Defendant also confirmed this in paragraph 13 of the Statement of Defence and paragraphs 12 and 13 of DW1’s deposition on oath, CW1 in her evidence asserted that her account was adequately funded at the time the cheque was presented and the defendant had no reason to dishonor it, she relied on Exhibits O2, O3 and O4. The Defendant on the other hand reiterated that the Claimant’s employment was terminated in line with the policy of the bank, and all her entitlements have since been paid to her, however, because of the issue of the dud cheque, she is not entitled to severance allowance, see paragraph 25 of DW1’s deposition on oath which reads as follows:

That the claimant was at no time debited in lieu of notice benefit. She was credited on February 8, 2017 and same has been withdrawn by the claimant. The claimant is not entitled to any severance payment as her appointment was determined because of dud cheque which she issued contrary to the CBN policy and the defendant’s policy.

There is no doubt that the relationship that exists between the claimant and the defendant is that of Master and Servant, and as such either party is at liberty to bring the relationship to an end in line with the terms and conditions of service, See OBU V, NNPC [2003] 2 NWLR Pt805 @ 589 @626-627. The terms and conditions of service for the claimant’s employment are as contained in Exhibit O10, paragraph vi of the Exhibit reads as follows:

The appointment may thereafter be terminated by either party by one month written notice or payment of one month’s salary in lieu of notice.

The employment of the claimant in this case was terminated by Exhibit O11 on the ground that her “services was no longer required,” it was also stated in Exhibit O11 that she is entitled to one month’s salary in lieu of notice in line with Exhibit O10, the argument of learned counsel for the claimant that the Defendant did not pay the one month in lieu of notice before the expiry of the notice and that this was a breach of the contract of employment by the Defendant will not avail the claimant, as the only remedy available to the claimant in that event will be damages for the period of notice agreed upon by both parties, as there is uncontroverted evidence of DW1 that this has since been paid to the claimant, the argument goes to no issue. On the issue of the motive that impelled the Defendant’s action to terminate the employment of the claimant, this is irrelevant as far as this case is concerned, in the light of Exhibit O11 and as it is also the position of the Law that an employee cannot be forced on an unwilling employer, I align myself with the reasoning of the court in the case of MOBIL OIL PRODUCING OF NIGERIA LTD & ANOR V. ASSAN [2003] 6 NWLR Pt816 @ 308 per Aderemi JCA, where he held as follows:

“It is also a sacrosanct position of the common law that an employee cannot be forced on an employer. It therefore follows that the issuance of a letter of termination of appointment of by an employer to an employee is a legitimate exercise of his right”

The issue of the dishonoured cheque will not also come into play in the termination of the claimant’s employment as from the content of Exhibit O11 as there was no mention of dishonoured cheque but the phrase ”…services no longer required” and as long as this is in line with terms and conditions of service, the right of the employer to terminate the employment is sacroscant. I find based on the above that the termination of the claimant’s employment in this suit is in accordance with the terms and conditions of her service with the Defendant and therefore valid, I so hold.

On the 2^nd issue for determination identified by me, that is:

Whether the claimant is entitled to the monetary reliefs as stated in the Complaint and Statements of Facts.

The claimant had itemized the special damages she is claiming in paragraph 34 of her deposition as follows:

Refund of the sum of N205,501.24 deducted

from the part payment of the claimant, thus

treating the claimant as if she was the one who

terminated her employment contract with the defendant – N205,501.24

Balance payment from the salary due

for the month of November, 2016 – N100,094.61

iii. One month salary for the month of December,

2016 which the Defendant is entitled for a

period that would have been covered by her

22 working days 2016 which she was denied – N428,976.89

Payment of one month salary in lieu of notice

as consequence of the Defendant’s letter of

termination dated 22^nd November, 2016 – N428,796.89

Short fall in payment of the 13^th month – N78,992.18
Payment of severance allowance paid by the

Defendant to its employees whose appointment

are terminated which for the rank of the claimant

is N4,771,523.31 – N4,177,523.31

Total: N5,420,065.12

The defence of “ex turpi causa non oritor actio” (meaning “no cause of action can arise from a dishonourable cause”) set up by the Defendant is to the effect that the claimant do not have a cause of action considering that the allegation of issuing a dud cheque made against her is an illegality and she should not be allowed to take any benefit from the Defendant. This defence can only avail the Defendant if the criminal allegation is established against the Defendant by a court of law, or an administrative panel for misconduct, the claimant never admitted committing this offence rather she vehemently denied that an offence was committed, and the defendant apart from issuing a query, did not pursue the issue further or make any finding on her culpability based on this allegation but rather opted to terminate the claimant’s employment. Having decided on this option, the Defendant cannot now deny her of her proven terminal benefits. I so hold.

In proof of the 1^st and 2^nd items on the list of special damages above, the Claimant cited Exhibit O1 in support of this leg of her claim while DW1 in paragraphs 22 of his deposition on oath deposed to the following fact:

That the terminal advice communicated to the claimant inadvertently had a negative in lieu of notice deduction. This was an inadvertent error as the account of the claimant was in fact credited with the in lieu of notice payment as appropriate as against the claim of the claimant. The claimant’s account was credited with the proper narration on February 8, 2017.

This assertion was never controverted by the claimant in her Reply to the statement of Defence, as it is the law that evidence not controverted is deemed admitted. I find that this leg of the clam fails. I so hold.

On the 2^ndand 3^rd items, the claimant premised this relief on the fact that she is entitled to 22 days leave which was denied despite her oral requests, and that if this is calculated, she would have resumed on 22^nd December, 2016, thus making her entitled to her salaries for November and December, 2016, she also relied on her deposition on oath dated 26^th March, 2018, as to her conversation with the Zonal Head of Operations of the Defendant, who alledgedly denied her leave request. In defence DW1 testified in paragraph 21 that leave allowance is factored in the monthly salary payment of all staff, while paragraph 28 of his deposition stated that her salary was pro rated in line with the 22 days she earned in November, 2016, learned counsel also pointed out that there is no documentary evidence to back up the alledged refusal of her request for leave. The claimant did not proffer any other proof apart from her deposition in respect of this claim to controvert this assertion, the Zonal Head of Operations referred to was not subpeoaned by her, examined and cross examined as to the content of their discussion, and as the law is that he who asserts must prove, I find that her testimony is insufficient and lacks any probative value. In conclusion these legs of the reliefs are unproven and therefore fails.

On items 4 and 5, the claimant based these leg on her entitlement to salaries for the months of November and December, 2016, which has been found unproven above, as stated in her paragraph 23 of the claimant’s deposition, having asserted in her adopted deposition that the 13^th month salary is for the staff of the Defendant that worked for the 12 months of each year, as the effective date of the termination of appointment of the claimant is 23^rd November, 2016, she cannot claim full entitlement to the 13^th month salary, consequently I hold that this leg of the claim also fails.

The 6^th leg is a claim for severance allowance of N4,177.523.31K for employees whose appointment are terminated of the rank of the claimant. The claimant relied heavily on Exhibit O11 and the fact that the claimant’s appointment was terminated and not dismissed. The Defendant on the other hand asserted that she is not entitled to any severance allowance because the termination of her employment was premised on the issuance of a cheque on an unfunded account, contrary to the policy and guidelines of C.B.N and the Defendant, see paragraph 25 of DW1’s witness statement on oath, already quoted above.

There is no doubt that issuing of dishonoured cheque is a criminal offence under our Laws with appropriate criminal sanctions, and the standard of proof in criminal cases is proof beyond reasonable doubt before a duly constituted court of law, however in employment law the employer need not have awaited the trial prosecution of an erring staff where a criminal offence is committed, the staff can be duly terminated for gross misconduct, see EZE V. SPRING BANK PLC 2012 VOL.205 LRCN 157 @ 187. It is the position of the Law that while a master is at liberty to terminate a servant’s employment, the termination can only be done in accordance with the terms and conditions of service in a Master/ Servant relationship, Exhibit O10 is the terms and conditions of service tendered by the Claimant in this case, and it is on record that the reason specified in the letter terminating the employment of the claimant i.e Exhibit O11 is that her service is no longer required, the import of this was considered in ALHAJI M.K V. 1^ST BANK PLC & ANOR 2011,LPELR 8971 CA, where it was held per Tur J.C.A;

“It is correct in law that while an employer does not have to give reasons for termination of employment save for the requisite notice or payment in lieu thereof, in the case of dismissal they have an obligation not only to state the reasons but to insure that the employee goes through all the laid down disciplinary procedure that will lead to dismissal. I have seen Exhibit “15”. It does not state any reason for the dismissal on the face of it”

In WARNER & WARNER v. F.H.A 1993 NWLR Pt 297 Olatawura JSC as he then was held:

“Where a contract gives conditions for the termination of a contract, the letter of termination should specify the condition breached by the party said to be in breach of the contract”

Also in IWUOHA V. MOBIL OIL PRODUCING NIG.LTD 2011 LPELR 4477 CA, Akhaas JCA held:

“It is settled law that where no other reason is stated for the termination of appellant appointment except that the Appellant’s service were no longer required, the court cannot go outside the said letter to discover the reasons for the termination”

Having thoroughly perused Exhibit O11, I find nothing in that exhibit to buttress the assertion of the Defendant that the claimant’s appointment was terminated by the Defendant due to the issuance of a dud cheque, rather, I find that her appointment was terminated and part of her terminal benefits were paid, including payment in lieu of notice, to therefore deny her the severance allowance based on the reason proffered by the Defendant is unjustifiable both under the contract of employment, Exhibit O11 and the circumstances of this case. It is trite that “dismissal In an employment relationship translates to bringing an employment relationship to a close while “termination of appointment” entails that the employee is entitled to receive the terminal benefits under the contract of employment, see 7UP BOTTLING COMPANY PLC V. ANYANYA AFAM AUGUSTUS 20112 LPELR 20873 CA; ALHAJI MK V. 1^ST BANK Supra.

The evidence of the claimant as to her severance allowance is as stated in paragraph 32 and 34 of her deposition on oath and stands uncontroverted, the only defence the Defendant put up in this regard is that, she is not entitled to the allowance because she “issued” a dud cheque, a conclusion which was not subject to a judicial or administrative decision at the time her appointment was terminated. The evidence as to the severance allowance therefore remains unchallenged, the law is settled that where evidence by a party in any proceeding is uncontroverted, the court has a duty to act on that piece of evidence, see LEADWAY ASS. CO LTD. V. ZECO NIG. LTD 2004 LPELR 1773 SC. What is required for the court to award special damages is that a party must lead evidence as to his entitlement to the special damages, and the damages if pecuniary must be particularized and specific, I find that the Claimant in this case have succeeded in leading cogent, reliable and uncontroverted evidence as to her entitlement to the sum of N4,177.523.31K (Four million, one hundred and seventy-seven thousand, five hundred and twenty three naira, thirty-one kobo) as severance allowance for the termination of her appointment by the Defendant. I so hold.

The claim for general damages however fails, having awarded the claimant her entitlement, I find no merit in awarding her double compensation in this case by way of general damages.

In conclusion, I hold and order as follows;

The termination of the claimant’s appointment is in accordance with the terms and conditions of service of the Defendant.

The Claimant is entitled and is to be paid her severance allowance.
The Defendant is hereby ordered to pay to the Claimant her severance allowance in the sum of N4,177.523.31K (Four million, one hundred and seventy-seven thousand, five hundred and twenty three naira, thirty-one kobo)