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National Industrial Court

Chinenye Robinson -VS- Diamond Bank Plc & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                                          IN THE OWERRI JUDICIAL DIVISION

                                                      HOLDEN AT OWERRI

                       BEFORE HIS LORDSHIP HON. JUSTICE I.S GALADIMA

DATE: 6th February, 2020                                                      SUIT NO: NICN/OW/62/2017

CHINENYE ROBINSON                                                                                                                   CLAIMANT

 

And

 

  • ACCESS BANK PLC
  • CENTRAL BANK OF NIGERIA                                                                                        DEFENDANTS

 

REPRESENTATION:

  • O.O. AMUZIE for the Claimant
  • SORONNADI A. NJOKU; E.S. IWUCHUKWU for the 1st Defendant.
  • CHUKWUDI UDEH for the 2nd Defendant.

JUDGMENT:

This Claimant was purportedly an employee of the 1st Defendant bank who was last posted to the Mbaise Branch of the bank. She was employed on 3/6/2010 and was duly confirmed by letter on 2/6/2011. She accordingly performed well as an employee and was eventually tasked with handling over 8,000 accounts whilst working as the only Accounting or Relationship Officer at the said Branch of the 1st Defendant’s bank. Unfortunately, due to bad performance on repayments of some of the loans she had accordingly approved to some customers, the 1st Defendant placed her on “recovery suspension” without salary pending her recovery of all such loans. She allegedly made efforts to ensure the repayments of all outstanding loans yet the 1st Defendant went ahead to dismiss her from her employment “unlawfully and maliciously”. The 1st Defendant admitted dismissing her from the service of the Bank stating that it was necessary so to do in view of the infractions she was found to have allegedly committed by the Personnel Management Committee of the bank accordingly she was not entitled to any of the reliefs sought by her. The 2nd Defendant denied any liability owed the Claimant purportedly as no cause was raised against it. It accordingly sought to be exculpated from this action with substantial costs.

Consequently, the Claimant filed this action along with other originating processes, on the 26/10/2017 seeking for the following 6 reliefs from this Court as follows

  1.             A declaration that the cessation of the Claimant’s employment by dismissal by the 1st Defendant without any verifiable cause or reason is malicious and unlawful and contravenes the Claimant’s right to work.
  2.             An order setting aside the said malicious and unlawful cessation of employment by dismissal of the Claimant by the 1st Defendant.

   iii.            An order directing or mandating the 1st Defendant to advise the Claimant to resign and/or accept the Claimant’s resignation of her employment with the 1st Defendant in line with best banking practices in a Nigeria and world over.

  1.             An order of perpetual injunction restraining the 2nd Defendant from giving effect to the said malicious and unlawful cessation of employment by dismissal of the Claimant by the 1st Defendant and/or blacklisting the Claimants from working in any other financial institution in Nigeria or any other place on account thereof.
  2.             An order directing or mandating the 1st Defendant to give reference in favour of the Claimant in line with best banking practices in Nigeria and world over in the event any other financial institution or other organizations require the services of the Claimant.
  3.             An order directing or mandating the 1st Defendant to pay her salaries from the date of her suspension on 27/3/2017 till 22/9/2017 and/or till her appointment is properly terminated by way of advise for resignation and/or resignation amongst other entitlements to the emoluments or her employment.

The 1st Defendant after putting in appearance on 23/11/2017, subsequently filed a statement of Defence and a witness’ deposition on 1/11/2018. The 2nd Defendant also put in a conditional appearance on 27/11/2017 and filed its necessary pleadings subsequently on the 16/3/2018. The Claimant found it necessary to respond to the 1st Defendant’s statement of defence and therefore file a reply to same on the 19//11/2018.

The Court had in a ruling per Arowosegbe, J on the preliminary objection filed by 2nd Defendant, dismissed the said objection and ordered the matter to proceed to hearing. Consequent upon his transfer to the Enugu Division, the matter came before me and so hearing commenced properly on 21/11/2018.

CLAIMANT’S CASE

The Claimant testified on her behalf as a sole witness. Adopting and relying on her deposition of 26/10/2017 and her further deposition accompanying her reply to the 1st Defendant’s statement of defence of 19/11/2018, she tendered a total of 4 exhibits labeled as follows:

  1. Exhibit C1 – offer of employment dated 3/6/2010.
  2. Exhibit C2 – confirmation of employment dated 6/12/2011.

III.               Exhibits C3 (a) and (b) – Email communications with the 1st Defendant bank dated 21/3/2017 and 14/7/2017 respectively.

  1. Exhibits C4 (a), (b), (c), and (d)– Email communications with the 1st Defendant bank variously dated.

After testifying, the Defendants took turns to cross examine her first by the 2nd Defendant on the said 19/11/2018 and subsequently by the 1st Defendant Counsel on the 14/1/2019. The Claimant applied to close her case thereafter.

THE 1st DEFENDANT’S CASE

The 1st Defendant opened it case on the 4/4/2019 and it too relied on the testimony of a sole witness, one Osademe Tudor. Relying on his deposition of 1/11/2018, he testified without tendering any document. He was asked further questions thereafter by the 2nd Defendant and thereafter, cross examined thoroughly by the Claimant’s Counsel whereupon the 1st Defendant closed its case.

THE 2nd DEFENDANT’S CASE:

The second Defendant elected not to field any witness even though it filed a statement of defence on 16/3/2018. Its Counsel however tendered one exhibit from the bar which is a Review of Operational Guidelines For Blacklisting accompanied by a cover letter dated 28/6/2016 by one Tokunbo Martins (Mrs) which was admitted as Exhibit D1. The 2nd Defendant thereafter closed its case on the 4/4/2019.

Thereafter, the parties filed their respective final written addresses via their individual Counsel. The addresses were duly adopted on the 21/11/2019 and adjourned to today for pronouncement of this here judgment.

1st DEFENDANT’S FINAL ADDRESS AND SUBMISSIONS:

The 1st Defendant had its written address and submissions filed on its behalf on 26/4/2019. In it, Chukwudi Udeh raised two issues for determination thus:

  1. Whether from the evidence led before this Court, this suit is not preemptive and premature;
  2. Whether the Claimant has proved her claims before this Court to warrant this Court giving judgment in her favour.

On the first issue raised for determination, it was submitted that the whole essence of this Claimant’s case is founded on an apprehension that her name will be blacklisted by the 2nd Defendant even though she had admitted under cross examination that so far, neither did the 1st Defendant send her name for blacklisting nor did the 2nd Defendant actually blacklist her from ever working in a financial institution following her dismissal. Counsel referred to paragraphs 28 and 29 of her statement of facts. He stated that thus being the case, it was clear that the suit is preemptive and premature. Accordingly, suspicion no matter how strong, can never ground a relief in law or entitle a person to judgment. Therefore, deciding this matter is a waste of time as it will merely become an academic exercise in futility. So, in considering what the definition of a cause of action in law is, this Claimant cannot be held to have any cause of action against the Defendants. He referred to exhibit D1 which is the Review of Operational Guidelines for blacklisting dated 28/6/2016 and stated that in order for a dismissed staff to be blacklisted, there are laid down guidelines to follow by the Defendants and that its client had never undertaken any of those steps in an effort to have her name blacklisted. He urged that this issue should be resolved in favor of the 1st Defendant in refusing the Claimant’s claims.

On his issue number two, he stated that the onus was on the Claimant to establish that her employment was not lawfully dismissed by the 1st Defendant and that she can only succeed on the strength of her case and not on the 1st Defendant’s weakness. He cited ADOJA V. AJIMOBI (citation supplied) and stressed that the minimum standard of proof in civil matters remains proof on a preponderance of evidence. He stated that the Claimant alleged that her employment was maliciously and unlawfully terminated by dismissal. It was up to her to prove how her dismissal was malicious and unlawful. He said in the dismissal of an employee, all an employer needs establish is that the allegation was disclosed to the employee and he was given an opportunity of fair hearing and that the rules of natural justice were not breached and that a disciplinary panel (where necessary) was set up, and that the employee admitted to committing the alleged act. He cited and relied on the decision in FUT YOLA V. MAIWUYA (citation supplied). Accordingly, this Claimant was involved in unethical conduct which led the 1st Defendant bank to set up a committee to investigate the series of complaints alleged against her. The Claimant allegedly appeared before the Personnel Management Committee upon invite on 21/7/2017. Having accordingly been provided with ample opportunity to present her defence before the said Committee, it made a finding and thereafter recommended the Claimant’s dismissal. Before her dismissal, it was equally admitted by the Claimant that she was placed on “recovery suspension” meant to be a period within which she will go about to recover the debts owed resulting from the loans she helped facilitate. Unable to satisfy the 1st Defendant with reasons not to dismiss her, she had to be dismissed by the 1st Defendant. Accordingly, all these were not denied by the Claimant as such it is trite that facts which are not controverted or successfully debunked, remain credible and good evidence — TRANSOCEAN S.S. (NIG) LTD V. OMELIME (citation supplied).

Learned Counsel also suggested that the Claimant had under cross examination, established that she did not challenge the evidence provided by the 1st Defendant leading to her dismissal in her answers provided to questions on the 14/1/2019 and urged the Court to refer to its record of proceedings to confirm this. In his reckoning, gross misconduct is any conduct of such grave and weighty character as to undermine the relationship of confidence which hitherto existed between the employer and his employee — CBN V. ARIBO (citation supplied). Therefore, since the Claimant had already admitted that she misconducted herself unethically, there was no further need for the 1st Defendant to prove this with evidence. Counsel went on to refer to paragraph 8 of the 1st Defendant’s statement of defence where it was supplied how the Claimant inveigled some customers to part with some money as gratification for MSME loans she facilitated to them. This is accordingly not allowed in the bank and this conduct was unacceptable and in breach of her contract of employment with the bank. The Claimant is expected to maintain an arm’s length relationship with the customers which was purportedly not done by her. In response to this allegation in the 1st Defendant’s statement of defence, the Claimant allegedly gave a glossy response without particularly explaining off how those monies were found in her account which were paid by the bank’s customers. In fact, that in paragraph 2 (c) of her reply to the 1st Defendant’s statement of defence, she admitted that monies were transferred to her account and withdrawn by the same customers. This was accordingly against the Bank’s policies and the Claimant knew she was acting beyond the scope of her duties. He cited AJAYI V. TEXACO NIGERIA (citation supplied) inter alia, and submitted that the acts of the Claimant in receiving monies directly from the customers instead of them depositing same directly into their personal accounts, amounted to gross misconducts. Also, that the Claimant admitted she failed to renew or extend several expiring facilities which act amounted to a breach of trust and confidence reposed on her by the bank. These along with a litany of other offenses, were sufficient grounds for the bank to have recommended her dismissal.

On whether the Claimant had sustained her claims that her dismissal was done maliciously and or unlawfully, learned Counsel submitted that she failed to prove how her dismissal was unlawful or malicious. In answer also to whether she was given the bank’s employment policies usually contained in a handbook upon her first employment, the Claimant had accordingly admitted under cross examination that she knew the policies were uploaded and replicated in the bank’s computer system which she used daily and such admission establishes that she understood what the bank’s policies were. There was therefore no truth in her averment that she did not know what the bank’s policies were as she was never given an employee handbook. Besides, having admitted that she handled over 8000 accounts for over three years, there was a presumption that she knew what the bank’s policies were giving her training and experience as a customer/relationship officer of the bank. It is accordingly necessary for the Court to find that she did not discharge the burden on her for the successful grant of the reliefs sought.

As far as the claims for entitlements are concerned, learned Counsel argued that the reliefs sought in paragraphs 32 (vi) of her statement of facts which is for an order mandating the payment of her salaries from when she was suspended till 22/9/2017 and or till her employment is commuted to resignation, are not grantable because of her admission of having committed gross misconducts leading to her dismissal. He animadverted that the 1st Defendant’s evidence were never challenged or rebutted by the Claimant as such, the claims by this Claimant are accordingly bound to fail. He reiterated the principle of law underlying unchallenged evidence and went on to urge the Court to refuse this relief specifically sought by the Claimant. Besides, argued Counsel, there are material contradictions in the Claimant’s account with respect to how much she received as salary. According to her, she averred that she received N328,369.00 as her monthly salary whereas in her exhibit C1 which is her contract of employment, her salary was stipulated to be N320,612.00 per month. Counsel referred to paragraph 31 of the statement of facts. The 1st Defendant believes that the failure by her to produce any other evidence like her last pay slip to convince this Court that she was entitled to be paid N328,369.00 per month, is fatal to her succeeding in this action. Counsel submitted that according to the Supreme Court in OKPALA & SONS V. NIG BREWERIES LTD (citation supplied), for a party to succeed, his claims must be precise and accurate on the issues to be decided as contained in his pleadings. Based on that decision therefore, this Claimant had failed to establish accurately what her salary was and so she cannot be entitled to the relief as sought for.

Furthermore, Counsel urged this Court not to place any weight on Exhibit C 4 (d) tendered by the Claimant in this suit as same was neither signed or dated. The said document is an email and purportedly a recovery report emanating from the bank. That the report must be discarded since the 1st Defendant never acknowledged it was made by it. He referred to MAKU V. AL-MAKURA (citation supplied) on the fate of unsigned and undated documents and urged the Court to reject it.

Finally, the 1st Defendant’s Counsel submitted that having failed to discredit its evidence, the Claimant’s suit against the 1st Defendant must be dismissed as being unmeritorious, premature and preemptive.

THE 2nd DEFENDANT’S ADDRESS AND SUBMISSIONS:

The 2nd Defendant’s final address was filed on 21/5/2019 by its Counsel, C. Udeh, Esq. He too raised two issues for determination thus:

  1. Whether the Claimant indeed established any cause of action against the 2nd Defendant to warrant the suit against it;
  2. Whether the Claimant has sufficiently proved her case on the preponderance of evidence.

On the first issue raised, Counsel submitted that the action is essentially between the Claimant and the 1st Defendant. This Claimant has no contract of employment with the 2nd Defendant or are there any breach of damages or injuries caused by it to the Claimant necessitating it to be added as a Defendant in this suit. Accordingly, where a cause of action has not arisen against a party, there cannot be any right of action against such party. He referred to NWAZURUIKE V. GOV IMO STATE (citation supplied). Learned Counsel thus argued that a perusal of the claims made by this Claimant reveals that the only mention made of the 2nd Defendant are as contained in paragraphs 3,4,28,29, and 32 of the statement of facts. Accordingly, whilst paragraphs 3 and 4 merely states the corporate personality of the 2nd Defendant, paragraphs 28 and 29 affirms the statutory function of the 2nd Defendant to superintend the activities of the 1st Defendant as a banking institution. That these in no way, establishes any cause of action against it.

It was submitted that although the 2nd Defendant did not call any witness, but the responses given by the Claimant in her answers under cross examination on the 21/11/2018 suggest she merely sued the 2nd Defendant under apprehension that her name will be blacklisted by it when the name is forwarded by the 1st Defendant to the 2nd Defendant. Therefore, it is obvious that the suit against the 2nd Defendant is premature and speculative in the absence of any such steps taken by any of the Defendants towards having her name blacklisted. He remarked that a Court of law is not established to adjudicate on guesses but on facts. As such, it is necessary for the suit to be dismissed particularly against the 2nd Defendant. He relied inter alia on PLATEAU STATE V. A.G. FEDERATION (citation supplied). He described the scenario here as equivalent to a fishing expedition embarked upon with the hope of grabbing any possible reliefs. He urged this Court to so find by answering the first issue in favour of the 2nd Defendant.

On issue number two, Counsel believes that this Claimant labored in vain towards establishing her claims against the Defendants. He adopted his submission of the first issue above stated and urged that the Claimant can only succeed on the strength of her case and not on the weakness of the Defendants’. He urged the Court to so find and to dismiss the case filed in its entirety with substantial costs.

THE CLAIMANT’S ADDRESS AND SUBMISSIONS:

The Claimant’s final written address was filed on the 29/10/2019 and after the preliminaries of restating the reliefs sought by her as well as the brief facts of the case, two issues were raised for determination by the learned Mr. Amuzie thus:

  1. Whether the cessation of the Claimant’s employment by dismissal by the 1st Defendant without any cogent, justifiable or verifiable cause or reason is proper in law having regard to labor laws, practices and the circumstances of this case.
  2. Whether the withholding or non payment of the Claimant’s entitlements to emoluments of her employment by the 1st Defendant from her recovery suspension to the alleged dismissal and terminal benefits is proper in law having regard to labor law practices.

On issue number one, learned Counsel acknowledged that in law, an employer is at liberty to determine an employment at will particularly in a master/servant relationship like this one. Accordingly, whereas a master can terminate an employee’s employment without giving any reasons whatsoever, in respect to dismissals, the situation is not the same. That although both termination and dismissal attain the same effect of ending an employee’s employment, they differ remarkably in their operations and implications. Whereas a termination may not necessarily be for disciplinary measures, a dismissal is solely for disciplinary measures and it deprives the employee of any pecuniary entitlements or terminal benefits. He relied on VALENTINE NKOMADU V. ZENITH BANK judgment delivered by Ogbuanya, J on 9/5/2019 in suit no NICN/LA/206/2015. Counsel therefore argued that the 1st Defendant ought to show how justified it was in dismissing the Claimant. Invariably, the 1st Defendant was wrong in his arguments on this issue. He said relief number 1 sought by this Claimant is the principal relief in this suit from which other reliefs ancillarily flow from. He urged that the determination of the principal relief will determine the fate of the ancillary reliefs.

On the issue canvassed by the 1st Defendant that this claim is preemptive and premature, learned Counsel antagonized that what the Claimant challenges is her dismissal by the 1st Defendant. He said that “parties are at ad idem that the Claimant was dismissed by the 1st Defendant” even as exhibit C 3 (b) accordingly speaks for itself. He stated emphatically however that the onus of justifying the dismissal is entirely the 1st Defendant’s. Accordingly, the 1st Defendant failed woefully to justify the “unlawful” dismissal of the Claimant from her employment. That the reasons for the said dismissal are as contained in Exhibit C 3 (b) which is the dismissal letter. He said that only 2 reasons were given for the dismissal. That it is safe to assume that the 1st Defendant admitted all the facts averred by the Claimant with respect to how she was dismissed without cause. The two grounds for which she was allegedly dismissed were that:

  1. The Claimant did not maintain arms length relationships with several facility customers and therefore breached transaction dynamics as adjudged by the movement and transfer of funds between her and the customers.
  2. Non disclosure of related party transactions.

Accordingly, the 1st Dedendant based its justification for the Claimant’s dismissal on conjectures, presumptions and speculations not supported by facts. A Court of law must not adjudicate on guesses, conjectures, presumptions and speculations, argued learned Counsel. He cited PLATEAU STATE V. A.G. FEDERATION (citation supplied) inter alia. He went on to add that the 1st Defendant made allegations it cannot sustain let alone justify. The burden rests squarely on the 1st Defendant to prove the allegations purportedly committed by this Claimant which it failed to discharge satisfactorily. He said that paragraphs 8 (b) and (c) and 10 (ii) and (iii) of the 1st Defendant’s statement of defence and written deposition on oath stated that about four different sums via money transactions, were made from about three facility customers — ASLOCK MEGACONCEPT LTD, NKEJESUS NIG. LTD AND STANBIK GLOBAL RESOURCES COY LTD — into the Claimant’s Diamondxtra account. However, the 1st Defendant failed to establish when such transfers were made convincingly and sufficiently to make this Court believe the allegations levied against the Claimant. This was accordingly fatal to the 1st Defendant’s case. The Claimant is believed to have countered these allegations made in her pleadings particularly in paragraphs 14,15,17,18,19,20, and 21 of her statement of facts and in paragraph 2 (a) to (g) of the reply to the statement of defence as well as in her further deposition on oath. These facts not being denied, are accordingly unchallenged and same must be relied upon, suggested learned Counsel. In fact, the Claimant even stated that all movements and transfer of funds between the Claimant and a few customers were to the knowledge and ostensible consent of the 1st Defendant. Counsel again argued that this fact is undenied — GAJI V. PAYR (citation supplied). Besides this, the 1st Defendant did not tender any document to suggest that the Claimant acted unethically and against the customs and practices of the bank. That the 1st Defendant did not present in evidence, any of its policy guidelines, regulations or handbooks in proof of the fact that the Claimant committed any infraction of the bank’s rules and regulations. Learned Counsel also said that the 1st Defendant merely attempted to give a dog a bad name and questions why rather than terminating her employment or handing her over to the Police, she was placed on a recovery suspension and later dismissed. Accordingly, funds diversion is a serious crime and the minimal standard of proof is beyond reasonable doubt. He said the Claimant, while on recovery suspension, remitted the sum of  over N1.2M and had restructured the sum of over N9M to the 1st Defendant’s knowledge. This fact again was allegedly never disputed. That had the Claimant recovered the loans which the 1st Defendant purported were made bad due to her fault, should she then be dismissed in the manner she was? As such, her dismissal must be adjudged unjust and inequitable, argued learned Counsel.

Furthermore, it is his contention that the Claimant was not given a fair hearing by the Personnel Management Committee set up to investigate her. Besides this, he wants the Court to disbelieve the DW1 who testified on behalf of the 1st Defendant stating that he is not a witness of truth. He want this Court to discountenance all his deposition and to find in favour of the Claimant. On what the Claimant is entitled in damages, he said that she was paid the sum of N320,612.00 per month as shown from Exhibit C1 tendered by her which in the absence of any contrary evidence by the 1st Defendant must be believed. In summation, Claimant’s Counsel stated that the 1st Defendant had failed woefully in justifying the Claimant’s dismissal and he wants this Court to so find.

On issue number two which he outlined above, he reiterated his positions as canvassed above and stated that the Claimant has proven she is entitled to all her entitlements as sought. Accordingly, Exhibit C4 suggests that even when she was placed on recovery suspension, she still came to work and went ahead to recover the bad debts and even recovered funds and renewed or extended several expiring facilities on behalf of the 1st Defendant. He urged that a worker is entitled to his wages and thus advocated that the Claimant be granted her relief number 6 as sought in the interest of justice.

In reaction to the 2nd Defendant’s final written address and submissions, learned Mr. Amuzie stated that the Claimant established a cause of action against it even though he admits that apart from relief number 4 sought, this suit is mainly between the Claimant and the 1st Defendant bank. He also relied on the ruling made by my learned brother Arowosegbe, J on the 8/3/2018 which purportedly stated that the Claimant had a cause of action to ventilate. The 2nd Defendant is therefore estopped from relitigating the same issue again in these proceedings, remarked learned Counsel. He said once a staff of a bank is dismissed, it is the policy of the Central Bank that his name must be submitted to it in order to blacklist the said employee. As such, this Claimant is entitled to seek legal remedy either when her right is, or about to, or likely to be  breached. That the 2nd Defendant had not called any evidence to support its statement of defence as such it must be deemed that it admitted all the facts and evidence put forward by the Claimant in this suit. — CHIBUKO V. CHIBUKO (citation supplied). That this Claimant clearly establishes the facts contained in her paragraphs 27,28,29,30 and 32 of her statement of facts sufficient to grant her relief 4 sought and therefore urged this Court to grant the Claimant’s suit entirely.

The Defendants did not file any reply.

COURT’S DECISION:

I have painstakingly gone through and considered the entire processes filed by these parties in this suit and I am satisfied that a sole issue arises for determination which is whether this Claimant established her case satisfactorily and convincingly to entitle her to the grant of the reliefs sought.

Curiously, the fact that the 1st Defendant bank, Diamond Bank PLC is no longer a recognized bank in Nigeria having been merged with Access Bank in April 2019, was never raised by any of the parties in this suit. The Claimant ought to have applied for the change of the 1st Defendant’s name on record to Access Bank by virtue of Order 13 rules 27 (1) and 28 (1) of the Rules of this Court. It is in observance of the need for such change of name of the 1st Defendant here that this Court suo motu, amended the title of the processes to read “ACCESS BANK” since such change does not fetter the rights of any of the parties being that the cause does not abate by reason of the extinction of the 1st Defendant in law, and I so declare.

Since by the Supreme Court’s decision in ATIVIE V. KABELMETAL (NIG). LTD (2008) 10 NWLR (pt. 1095) 399 to the effect that a claim is circumscribed by the reliefs sought, the Claimant’s cause must be circumscribed by the reliefs she seeks. Thus, for the purpose of restating with clarity, 6 reliefs were sought by her which are reproduced here under as follows:

  1.             A declaration that the cessation of the Claimant’s employment by dismissal by the 1st Defendant without any verifiable cause or reason is malicious and unlawful and contravenes the Claimant’s right to work.
  2.             An order setting aside the said malicious and unlawful cessation of employment by dismissal of the Claimant by the 1st Defendant.

   iii.            An order directing or mandating the 1st Defendant to advise the Claimant to resign and/or accept the Claimant’s resignation of her employment with the 1st Defendant in line with best banking practices in a Nigeria and world over.

  1.             An order of perpetual injunction restraining the 2nd Defendant from giving effect to the said malicious and unlawful cessation of employment by dismissal of the Claimant by the 1st Defendant and/or blacklisting the Claimants from working in any other financial institution in Nigeria or any other place on account thereof.
  2.             An order directing or mandating the 1st Defendant to give reference in favour of the Claimant in line with best banking practices in Nigeria and world over in the event any other financial institution or other organizations require the services of the Claimant.
  3.             An order directing or mandating the 1st Defendant to pay her salaries from the date of her suspension on 27/3/2017 till 22/9/2017 and/or till her appointment is properly terminated by way of advise for resignation and/or resignation amongst other entitlements to the emoluments or her employment.

 

Now, it is necessary to state that from the outset of this suit, the relationship that hitherto existed between this Claimant and the 1st Defendant was one of a master/servant. Therefore, this Claimant’s employment and her conditions of service can only strictly depend on what was contained in her employment letter and any other terms and conditions of service which were either expressly or impliedly incorporated as forming part of her employment terms. Generally, should a master exercise his right to dismiss his servant, any injury complained of shall ordinarily either be for wrongful, unjustifiable or unfair dismissal. Where however a Claimant alleges that he or she was unlawfully dismissed as in this case, the test of whether the dismissal of such employee was proper or unlawful is whether the procedure adopted in effecting the dismissal conforms with the conditions laid down in the terms of the employment of the aggrieved employee. For it to be declared unlawful by this Court, it must be proved that there was a departure from the prescribed procedure or that in applying the rule there was a violation of the rule of natural justice so as to render the formal compliance a travesty — Ndili v. Akinsumade (2000) 8 NWLR pt668)293 per Olagunju, JCA (as he was then).

Obviously, the evidential and legal burden of establishing and proving that an employment was unlawfully dismissed, rests on the Claimant’s shoulder squarely — see KEYSTONE BANK PLC v. KASSIM YIGGON (2013) LPELR-22131(CA) where it was stated by the Court of Appeal that:

“It is an elementary principle of the rules of litigation that the Plaintiff in the lower Court who alleges unlawful dismissal from his employment must prove that the dismissal was unlawful, and failure to do this will lead to such a claim being dismissed. See: EDE VS. OKUFO (1990) 2 NWLR PART 150 PAGE 356. In other words, if the Plaintiff cannot succeed on the strength of his claim he should fail. See:- INYANG VS. ESHIET (1990) 5 NWLR PART 149 PAGE 178. See also Sections: 131, 132 and 133(1) of the Evidence Act, 2011 (as amended).” Per BADA, J.C.A. (P. 11, paras. C-F).

Where the Court finds that a Claimant was indeed unlawfully dismissed, the Claimant shall automatically not be entitled to any claims of salaries for work not done. This is because an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for account of profits which he would have earned to the end of the contractual period: he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can — Olatunbosun v. NISER Council (1988) NWLR (Pt.80) 25.

It was necessary to outline the above basic principles in employment law in order to provide a guideline for making my findings with respect to the reliefs specifically sought for by this Claimant. Meanwhile, before I get to the reliefs properly, certain facts have clearly not been disputed as discernible from the parties’ pleadings, evidence and depositions. They are —

  1. The Claimant was indeed an employee of the 1st Defendant bank having been duly employed and confirmed as per Exhibits C1 and C2 on 3/6/2010 and 6/12/2011 respectively.
  2. She was placed on a “recovery suspension” without pay with effect from 21/3/2017 pending the outcome of full investigations because of her alleged role in the creation of several challenged accounts at the Mbaise Branch of the 1st Defendant bank — Exhibit C 3 (a).
  3. She was invited by letter dated 14/7/2017 and came before a Personnel Management Committee on 21/7/2017
  4. She was dismissed by the 1st Defendant by letter dated 15/8/2017 because she allegedly committed what “amounted to funds diversion and possible collusion” and “non-disclosure of related party transactions” both considered to be unethical and being in violation of the bank’s credit policies as well as a “gross breach of trust”— Exhibit C 3 (b).

The question which now prominently requires an answer is whether or not the dismissal was justifiable given the facts of this case? This was essentially the question raised by the Claimant’s Counsel in his final written address and submissions summarized in the preceding paragraphs above. I shall come to this question shortly.

The issue for determination now narrows down to whether the Claimant’s dismissal was “unlawful” in the end. Importantly and as stated before, the Claimant owns the evidential and legal onus of proving that her dismissal was “unlawful” since this is specifically what will guarantee the success of her reliefs 1,2,3,5 and 6 of her reliefs sought. Put differently, did this Claimant discharge the burden of prove that her employment was “unlawfully” dismissed by the 1st Defendant?

In master/servant employments, a dismissal or termination cannot be declared illegal, null and void for the simple reason that the employment is not one protected statutorily. It is only in an employment governed by statutes that a dismissal can be declared illegal or unlawful. Nonetheless, I acknowledge that the Claimant in this case, only regards as malicious and unlawful, the procedure or steps taken by the 1st Defendant leading to her dismissal.

In IDUFUEKO V PFIZER PRODUCTS LTD (2014) JELR 54920 (SC), the Supreme Court per Galadima, JSC stated inter alia that “it is appropriate to bear in mind that in a contract of employment, the element of unlawfulness arises where in carrying out the decision to terminate the employment, the employer or employee failed, neglected or refused to adhere to the principles laid down by statute, in a case of contract with statutory flavour, or by the terms of the letter of employment, in an ordinary contract of employment, as in this case”. Being therefore that this action falls within the realm of master/servant relationships, should the Claimant succeed in her case against the Defendants, this Court can only declare the dismissal as wrongful or unfair and not illegal or unlawful. Therefore, the Claimant is required to prove that there were infractions or breach of the terms of her employment or conditions of service in the manner of her dismissal by the 1st Defendant.

Beginning from her paragraph 7 of the statement of facts filed by her, she claimed that she was not given the 1st Defendant’s employee handbook upon employment. In  her testimony, she stated that on 21/3/2017, she received an email stating that she was placed on recovery suspension without pay pending a full investigation with respect to some accounts she handled. Accordingly, she proceeded on the said suspension but still came to work from 22/3/2017 till 22/9/2017, for an alleged period of six months, for the purpose of ensuring the accounts were rectified. She accordingly received a letter on or about 14/7/2017 — Exhibit C 3 (a) inviting her to meet with the Personnel Management Committee on investigations into her alleged unethical misconducts. That despite explaining to the committee in answer to the questions it put to her — as seen in paragraph 14 of the statement of facts — the 1st Defendant still went ahead to send her a letter of “cessation of employment” dated 15/8/2017. It is interesting to note that aside from this fact, the rest of the facts averred to in the statement of facts are mostly hearsay evidence or second hand evidence and they are quite impossible of believe by this Court. See specifically paragraphs 15, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27. These same paragraphs were replicated in her deposition on oath in support of her pleadings.

Randomly chosen, paragraph 23 for instance reads:

Furthermore, the said manager took the Claimant’s said brother to the Claimant as the Accounting/Relationship Officer of the said Branch to open an account for the Claimant’s said brother. The Claimant immediately met the said manager and informed him that the said customer is her blood brother. The said manager told the Claimant he was aware of their blood relationship and directed the Claimant to deal with the said customer accordingly .

Assuming those 11 paragraphs stated above are not jettisoned or even believed, the Claimant’s cause will still be feeble such that no reasonable Court can safely rely on same to justify granting her reliefs. This is because neither the manager nor the Claimant’s brother testified in these proceedings for the Court to be able to refute or verify the above fact. There are equally no other supporting and collaborative evidence either documentary or orally, to establish some of the facts stated therein. So, in order to prove that the procedure or steps taken by the 1st Defendant in dismissing her were indeed malicious and unlawful as she puts it, she must establish the malice and provide direct references to the particular breaches done by the 1st Defendant before she was dismissed. This is notwithstanding the fact that in a master/servant relationship, the master has a right to dismiss its servant for any or for no reasons whatsoever. Although it definitely will be immaterial whether or not the dismissal was done maliciously or unlawfully, it can aid the Court in determining what award to make in the event it finds that the dismissal was in deed wrongful or unfair.

Unfortunately, not only has this Claimant failed in establishing by probable evidence that there was indeed malice in the way and manner of her dismissal, there is nothing before this Court to evaluate the assertion that the dismissal was done without due regards to the laid down procedures by the 1st Defendant. This is because there is absolutely no way for this Court to determine what her terms and conditions of service stipulate in the absence of any regulations, employee’s handbook or bank policies before this Court. The Claimant can only succeed on the strength of her own case and not on the weakness of the Defendants’. The fact that the 1st Defendant did not tender any document or provide justifiable reasons for the Claimant’s dismissal becomes irrelevant in the absence of a convincing case first made out by this Claimant. Having worked with the 1st Defendant for several years, it is difficult to accept that she did not know where to procure the 1st Defendant’s employee handbook assuming I even believed that she was not provided with any upon being employed. Besides, being that she instituted this action for wrongful dismissal, it ordinarily should occur to the Claimant that the employees’ handbook or any other bank regulations or policy statements affecting her employment may be relied in Court to ensure a successful prosecution of her claims. In the absence of providing one, the Court becomes handicapped and unable to ascertain the claims put up by her that the procedures followed in her dismissal were unlawful, malicious, wrongful or even unfair. Ultimately, I prefer and accept the arguments made by the 1st Defendant’s Counsel that the Claimant must establish by credible evidence, how the said dismissal was unlawful and malicious since that is what she alleged. Having failed to so do therefore, her reliefs 1 and 2 sought cannot be granted. They are thus refused.

On the fate of her relief number 3 which is for an order directing or mandating the 1st Defendant to advice the Claimant to resign and or to accept the Claimant’s resignation in line with best banking practices in Nigeria and world wide, having found and decided that she failed in proving that her dismissal were both unlawful and malicious, the question of ordering the 1st Claimant to commute the action to resignation thus signifying the termination of the contract of employment by her, does not arise. Having held that her dismissal by the 1st Defendant has not been proven by her to be wrongful giving the evidence and facts she presented, the said dismissal can therefore not be commuted to a termination by resignation. This is more so since after declaring that the dismissal was not wrongful, there will no longer be any contract between the parties capable of terminating by resignation. Also, the Claimant did not state anywhere in her pleadings or depositions before this Court that she actually attempted to resign and she was refused so to do by the 1st Defendant. She never took any steps towards resignation choosing perhaps to continue to work while under the recovery suspension with the hope that she will be exonerated from the allegations she was purported to have committed. In the light of these opinions, the said relief 3 also fails as well and the same is hereby denied.

On the issue raised and canvassed by the learned Counsel for the Claimant that where a Defendant gives a reason for dismissal it must be justified or proven. Indeed I acknowledge that the recent attitude of this Court towards dismissals particularly by a bank is to require the Defendant to justify the dismissal particularly where reasons were given for such dismissal. The learned Defendant’s Counsel rightly cited and relied on one of such recent decisions by my learned brother in VALENTINE NKOMADU V. ZENITH BANK PLC (Supra). It is however not in all cases that the Defendant master is required to justify the dismissal particularly where he gave reasons. Remember that in a master/servant relationship, a master wields the power to hire and fire at will with or without reasons. Depending also on the facts of a case as well as the claims and reliefs sought, a master may not necessarily be required to justify the reasons for such dismissal. One of such exceptions shall be where the Claimant fails to adduce sufficient reasons that the dismissal was indeed wrongful or unfair by failing to tailor all evidence suggesting the alleged claim; And of course, where there has been an admission that the act was in fact committed and whether or not such should be considered gross misconduct shall become irrelevant since a master can dismiss his servant for any reason or for none whatsoever — see my judgment in PIUSITY MARY ADAORA V UNITY BANK OF NIGERIA suit no NICN/OW/76/2016 judgment delivered on 30/10/2018.

Sieving through the pleadings and testimonies in open Court, I find the following to be positive admissions made the Claimant:

Paragraph 2 (c) of the Claimant’s reply to the 1st Defendant’s statement of defence stated as follows:

…the aforesaid customers due to grave insecurity that prevailed at Mbaise and its environs the , transferred some funds to the Claimant’s account for the said customers’ uses and which the Claimant withdrew and delivered to the said customers without any problem at all.

In paragraph 2 (d) of the same reply she stated that:

In January 2013, the Claimant mistakenly made a deposit of N600,000.00 into the account of Stanbik Global Resource Company Ltd and which the Claimant notified the company of same but the company said it had already made payments for goods and promised to refund same from sales proceeds. The company later repaid the money by installments through the Claimant’s account.

In paragraph 2 (e),

The managing director of Stanbik Global resources a well known traditional ruler of repute…transferred N2M from his Keystone Bank account to the Claimant’s account with the 1st Defendant’s bank and requested the Claimant to withdraw same and deliver same to him which she did with the consent of the branch manager.

In paragraph 2 (h) she further admitted that she made many recoveries to the tune of N1,272,000.00 and restructured the sum of over N9M with the knowledge of the 1st Defendant. In prove of this she tendered Exhibits C 4 (a), (b), (c), and (d).  Of course, these facts were further repeated in her deposition accompanying the said reply verbatim.

In response to some questions put to her under cross examination on 14/1/2019, the Claimant admitted that she was placed under recovery suspension because she created “challenged accounts”. That she was summoned before an investigative panel months after she was placed on suspension. She appeared before the disciplinary committee. That the committee did not make a report concerning its investigations. That she was unable to produce her response to the allegations made against her because she had no assess to the work computer where the information was stored. She finally admitted that she was not required to receive repayments for loans made by customers through her personal account — see the record of proceedings.

Interestingly, the fact that the 1st Defendant did not produce even a single exhibit in its defence still does not exculpate the Claimant from first establishing her claims. As such, based on the 1st Defendant’s statement of defence and the deposition of its witness as gleaned from paragraph 8 onward, the Claimant was alleged to have conducted herself unethically which necessitated the bank to dismiss her based on the facts as admitted above by her. It is for this reason and more therefore, that the Court finds it unnecessary for the 1st Defendant to justify the dismissal of the Claimant. An express admission such as was done here, is one of the exceptions to which this Court shall require a master to justify its reasons for dismissal and I thus hold.

With respect to relief number 5 sought by the Claimant which is for an order directing or mandating the 1st Defendant to give credible reference on behalf of the Claimant in the event any other financial institution, organization or bank shall require her future services, I unfortunately do not see how this can be made given that such reference is entirely within the 1st Defendant’s prerogative and further because it was not established that her dismissal was wrongfully done. Thus said, the arguments and submissions made in this regard are hereby refused. Relief number 5 is equally denied.

In respect of relief number 6 which is for an order for payment of salaries from the date of her suspension on 22/3/2017 till 22/9/2017 and or till her dismissal is commuted to a termination by this Court, having also found that the dismissal was not wrongful, it is quite impossible to grant such an order. Besides, it is not available for the taking. The failure to plead and tender the terms and conditions of her employment in this cause cannot be overstated as it would have been sine qua non in determining whether the Claimant is entitled to any monetary claims upon dismissal by the 1st Defendant. I acknowledge that like in PIUSITY MARY ADAORA V UNITY BANK (Supra), the fact that an employee of a bank is subjected to a disciplinary dismissal does not necessarily mean he is not entitled to certain terminal benefits. However, each case will depend on what is contained in the terms and conditions of the employees contract of employment and in this instance, there is absolutely nothing before me to serve as a guide in determining whether or not this Claimant is entitled to any benefits after her dismissal. It is trite law that a Court cannot embark on a voyage of discovery and the same is true that the Court is not Santa Claus when it comes to the issue of award of damages. Besides, this 6th relief sought falls in the realm of special damages requiring special and strict prove thereof. It is therefore not within my powers to grant in the absence of such evidence. The said relief number 6 suffers the same fatal fate and it is accordingly also refused.

On the last question for determination which is also tied to the relief number 4 sought which is for an order or restraint on the 2nd Defendant from blacklisting the Claimant from working in any financial institution in Nigeria, the arguments canvassed by the Defendants in unison and particularly by the 2nd Defendant herein had been that it was premature for this Claimant to have sought for this relief in the absence of any reason to believe that the Defendants intend to blacklist her from gaining future employment with another financial institution. Also, that no cause of action had been made against the 2nd Dedendant warranting it to defend this suit as the claims are entirely between the Claimant and the 1st Defendant. The Claimant’s Counsel had argued on the other hand, that there is the likelihood of such blacklisting to occur in the event she is determined to have been properly dismissed and in view of Exhibit D1 tendered which requires the 1st Defendant to report any staff who has been dismissed to the 2nd Defendant so that the person’s name shall be blacklisted. Learned Counsel stated that it shall be against the interest of his client if she is prevented from gaining and enjoying any future employment within the finically domain and so emphasized on the need to restrain the 1st And 2nd Defendants to act in that regard.

Before I proceed to deal with this issue, it is important to note that the 2nd Defendant did not produce any witness to testify although it filed a statement of Defence on 16/3/2018 though not accompanied by any witness deposition. The Counsel also tendered a single exhibit from the bar which was admitted as Exhibit D1.

The question whether this Court can order the Defendants not to blacklist the Claimant’s name pursuant to Exhibit D1 which is an operational guideline for blacklisting, depends on whether or not she succeeds in prosecuting this action. Thus said, it becomes easy and in fact, safe to state that having not succeeded in establishing her cause so far, this Court cannot grant her relief number 4 to restrain the Defendants from carrying out their administrative duties should they choose to. The decision whether or not to carry out the decision to blacklist the Claimant is entirely within their prerogative. As such, relief number 4 also fails and the same is refused as well.

Consequent on the above findings made, this Claimant’s suit fails unfortunately in its entirety. Reliefs number 1 , 2, 3, 4, 5, and 6 sought by this Claimant are hereby completely denied and refused. Judgment is entered accordingly and parties are to bear their own costs.

Delivered in Owerri, this 6th day of January, 2020.

 

 

Hon. Justice Ibrahim Suleiman Galadima,

Judge, NICN Owerri Division

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