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National Industrial Court

MR. VICTOR ADEGBOYE -VS- UNITED BANK FOR AFRICA PLC

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DATED: 6TH MARCH 2020                                            SUITNO: NICN/IL/01/2019         

BETWEEN

  1. VICTOR ADEGBOYE                            ………          CLAIMANT

AND

UNITED BANK FOR AFRICA PLC                                   ………          DEFENDANT

 

REPRESENTATION:-

Abiodun Bello Esq. for the claimant

M.O. Folorunsho Esq. for the defendant

JUDGMENT

  1. The Claimant by a Complaint  on the 4th February, 2019 instituted this action against the defendant wherein he claimed against the defendant as follows:

(i)               A DECLARATION that the Claimant was not accorded fair hearing in the processes that culminated in the purported dismissal of his employment with the Defendant by virtue of which the purported dismissal is unconstitutional, ultra vires, null, void and of no effect whatsoever.

(ii)            A DECLARATION that the Defendant did not follow the due process of law before purporting to dismiss the employment of the claimant and consequently the purported dismissal is unconstitutional, ultra vires, null, void and of no effect whatsoever.

(iii)          A DECLARATION that the Disciplinary Committee of the defendant, held on Friday, 15th January, 2016 was without fair hearing, equity and good justice, as three out of the five staffs invited to appear before the Disciplinary Committee were present.

(iv)          A DECLARATION that the letter of Dismissal, dated 22nd April, 2016 to the Claimant is unconstitutional, null and void and of no effect.

(v)             AN ORDER directing the Defendant to pay the Claimant all his full salaries, emoluments and allowances effective from the date of his purported suspension till the date of judgment and thenceforth.

(vi)          A SUM OF TEN MILLION NAIRA ONLY as general, exemplary and/or aggravated damages against the Defendant.

  1. The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witness and documents to be relied upon while the defendants filed a memorandum of appearance on the 6th of March, 2019. The defendant by a motion on notice filed on the 6th of May, 2019 applied for extension of time within which the defendant may file her Statement of Defence and other accompanying processes. This was granted by order of this court on 16th May, 2019, and same was deemed properly filed and served

The Claimant’s case is that he was employed by the defendant as an executive trainee vide a letter of offer of appointment dated 16th June, 2008 and his employment was thereafter confirmed vide a letter dated 20th January, 2009 with effect from 16th December, 2008. He later rose to the rank of Assistant Banking Officer of the defendant on 6th April, 2011, and by a letter dated 6th of August, 2014, the claimant was issued a letter of introduction to the Financial Controller, Dangote Flour Mills Plc, Ilorin as the defendant’s sole representative to receive the Authority to collect (ATC) in respect of Sadiq Umar General Enterprises Nigeria Limited, a customer of the defendant. He pleaded that sometimes in August 2014, he received a call from one Ayo Aiyepeku, the branch manager (BM) of the Defendant, informing him that the ATC for Sadiq Umar General Enterprises Nigeria Limited was ready for collection at Dangote Flour Mills Plc, Ilorin and he was instructed to go and collect same, while the Relationship Manager, Mr Wale Agboola, will join him there. The claimant duly collected the ATC and handed same over to the Relationship Manager for onward delivery to the Branch Manager, since they both share the same office and the claimant went back to his own office in another part of town.

  1. The claimant pleaded that about a year later, specifically in August 2015, he received a memo from the head office requesting for the whereabouts of the signed ATC he collected from Dangote Flour Mills Plc, to which he informed the defendant that he handed the ATC over to the Relationship Manager for onward delivery to the Branch Manager. He stated that he later received an internal memo on the issue, to which he responded and five months thereafter, he received another memo via email on 13th January, 2016 inviting him to appear before the defendant’s Corporate Office Disciplinary Committee in Ibadan on 15th January 2016. Upon his appearance, the claimant discovered that only three of the five staffs listed on the invitation were present and the proceedings of the committee was conducted via teleconference and he reiterated his side of the story before the committee.
  2. The claimant averred that two of the staff that were absent at the committee proceedings were never recalled to testify on their roles in the transaction and he was not given any opportunity to cross examine them. He continued that on 18th January, 2016, he received a letter to proceed on three months’ recovery suspension from 19th January, 2016, for failure to follow due process in releasing the ATC to the customer and on 22nd April, 2016 he was issued a letter of dismissal by the defendant. He stated that he wrote to the Executive Director, Human Resources of the defendant explaining his role in the transaction and urging the defendant to review his dismissal, and the defendant duly acknowledged same.
  3. The claimant averred that on 10th June, 2016, an officer of the defendant sent him a mail, inviting him for a chat at the head office of the defendant, and on getting there, he was informed him that he has to follow them to the Special Fraud Unit (SFU), Ikoyi, on the same issue.
  4. The clamant avers that on getting to the SFU, Ikoyi, he was shown a copy of petition accusing him of conspiring with a customer to obtain money by false pretence, and he was asked to write a statement. He stated that the Relationship Manager maintained that, the claimant gave him the ATC and he was the one that handed it over to the customer on the instruction of the Branch Manager, thus affirming the claimant’s innocence contrary to the allegation against the claimant. He averred that he was detained and was later released on bond, and he nonetheless maintained that he did not defraud the Defendant
  5. The claimant later briefed his counsel, Messrs. Abiodun Bello Esq. to write the defendant, demanding that his dismissal be retracted, and he duly informed the Police Special Fraud Unit. He continued that the defendant by a letter dated 11th July, 2016 denied the request of the claimant to review his dismissal. The claimant denied knowledge of the defendant’s policy on ATC and his responsibilities under the policy, he maintained that he was only instructed to collect the ATC, without any specific directive as to who will take delivery of same, he concluded that the defendant’s letter of 22nd July, 2016, reveals that no policy was served on him.
  6. The claimant pleaded that that the Branch Operations Manager (BOM), who as alleged by the defendant, retains the authority to collect the ATC from him never called him to find out about the ATC. He stated that he received a letter dated 1st November, 2017 from the defendant informing him that the decision of the bank to dismiss him is final and it was the defendant’s rebuff of his letter that eventually led to the institution of this suit.  He averred that his suspension and subsequent dismissal are manifestly wrong and without justification and have caused him untold financial hardship, emotional agony and professional stagnation since he could no longer be employed by any financial institution due to his dismissal. Whereof he claims against the defendant as aforetasted.

 

  1. The defendant vide its statement of defence denied all of the claimant’s material allegations of fact. It contended that at the request of Sadiq Umar General Enterprises, one of its customers, it issued a Bank guarantee of N50,000,000 in favour of Dangote Flour Mills and the guarantee by its nature allows the customer to collect flour from Dangote Flour Mills on credit, while the customer is expected to deposit cash into a designated account set up by the bank for that purpose. The defendant stated that as a precaution, it set up a mechanism which was known to the claimant, as a cluster control manager. The defendant averred further that by the said policy, an Authority to Collect (ATC) is issued by the bank to a designated officer (claimant) for the collection of stocks from Dangote Flour Mills. The defendant pleaded that upon receipt of the ATC from Dangote Flour Mills by the claimant, same is to be handed over to the Branch Operations Manager (BOM) and a movement register is opened where the transaction is recorded and signed by both managers. The Cluster Control Manager is also expected to ensure that the all conditions precedent are complied with. The ATC is recorded in the register and signed by the Branch Operation Manager, Cluster control Manager, Customer and the Relationship Manager for collective responsibility, before the ATC is eventually released to the customer. The defendant added that the cluster control manager also retains the responsibility to prepare weekly stock report to be forwarded to the line ED, RBH/DH and credit monitoring group to monitor compliance.

10.The defendant stated that this procedure is to ensure that the ATC is to be released in piecemeal to the customer as the customer is able to fund his account, thereby protecting the bank from undue exposure. It stated that the claimant was nominated vide a letter dated 6th August, 2014 as the only officer authorized to collect ATC for Sadiq Umar General Enterprises and he did collect same but instead of handing them over to the Branch Operations Manager, in line with the defendant’s mandate as contained in the CACOM (Credit Approval Communication Memorandum). He handed the ATC to the relationship manager, who released it to the customer. Thereby enabling the customer to utilise same to collect goods from Dangote Flour Mills, and exposing the defendant to financial loss.

11.The defendant contended that the claimant flagrantly disregarded his duty as cluster control manager, by handing over the ATC to the relationship manager without any record of the receipt of same from Dangote Flour Mills and his failure to notify his superiors. The defendant pleaded that it only became aware of the situation after a year when Dangote Flour Mills called in the guarantee of N50,000,000, and the customer’s account was not well funded to defray the guarantee sum.

12.The defendant averred that the claimant was invited before the disciplinary committee of the Bank while all those who were expected to have played a role in the ATC transaction i.e. the Relationship Manager (RM), Branch Operations Manager (BOM), Branch Manager (BM), RBH and Credit Monitoring, were duly queried and responded, the defendant averred that the claimant’s response to his own query exonerated the Credit monitoring, RBH, BM and BOM, hence their presence was found to be unnecessary at the committee’s sitting. The defendant maintained that the committee’s invitation, investigation and report were based on the roles outlined in the CACOM for handling of the ATC. The defendant continued that the Committee exonerated the Credit Monitoring Officer because his role in the policy of the bank was not affected by the ATC transaction since the Cluster Control Manager who was meant to send a report on the transaction did not do so.

13.The defendant contended that everyone qualified to be tried were present before the committee and the claimant was given fair hearing. They further averred that the claimant was found guilty of gross misconduct in line with its Group HR Disciplinary process and sanctions policy, which it asserted is not exhaustive and was thereby accordingly dismissed. The defendant alleged that the claimant is still indebted to the defendant in the sum of N273,388.91k at the time of his dismissal.

14.The defendant denied any wrong doing in the arrest and detention of the claimant at the Special Fraud Unit, Ikoyi, as this was done in line with the mandate of the Police to investigate crimes. It contended that the claimant, who was a staff with 8 years’ experience with the bank, cannot claim ignorance of the bank’s policy and urged the Court to dismiss the claimant’s suit with substantial cost.

15.The claimant filed a reply to the defence on 20th May, 2019, wherein he contended that he was not privy to the offer letter, the said CACOM and the transaction process, dynamics and history of the transaction with Sadiq Umar General Enterprises Nigeria Ltd. He averred that he was only instructed to collect the ATC on behalf of the defendant without any instruction as to who will take delivery of same. He averred that the Branch Operations Manager, did not know that the ATC was to be handed over to her as she was not part of the transaction, and this is evident in her reply to the query contained in the investigation report dated 6th October, 2015. He also queried the assertion that the presence of the RBH, BM and BOM was not necessary before the committee, because the BM was eventually singled out and dismissed by the defendant. He alleged that some members of the disciplinary committee were absent at the sitting of the committee of 15th January, 2016, thus the committee was not properly constituted, more so, the defendant failed to justify the allegation made against him.

16.The claimant averred that the defendant was not exposed to any financial loss of N50,000,000 as can be seen from the investigation report, since the customer in question made a commitment of certain amount of money and undertook to liquidate the balance at the Special Fraud Unit, Ikoyi. He reiterated that he was invited by the defendant to its head office and lured to the Special Fraud Unit. He also averred that reasonability does not take the place of policies when it comes to transactions in a bank.

17.The claimant finally pleaded that he did not engage in any fraudulent conduct and that in his service of over eight years with the defendant, he has never received any query, caution or sanction whatsoever.

18.Trial commenced in this suit on 16th July 2019, with the claimant testifying as CW1, he adopted his statements on oath, tendered several documents which were admitted and marked Exhibits VG1-VG16, was cross examined and he closed his case. The defendant opened its defence on the same day with Raphael Usifo, a banker and staff of the defendant, testifying as DW1. He adopted his statement on oath, he was cross-examined and the defence thereafter closed. The suit was adjourned for adoption of written addresses and parties adopted their addresses on 9th December, 2019.

19.In the defendant’s final written address filed on 29th July, 2019, M.O. Folorunsho Esq. of counsel for the defendant submitted the following issues for determination:

  1. In view of the nature of contract of service between the warring parties, can this Honourable Court grant reliefs i, ii, and iv of the Claimant herein?
  2. In view of the state of pleadings and evidence adduced in this case, has the Claimant made out any case entitling him to the reliefs sought?
  3. On the first issue, learned counsel submitted that a contract of employment is either one with statutory flavour or one determinable upon service of required notice and/or payment in lieu of notice. he continued that contracts with statutory flavor attracts strict compliance with the mode of termination of employment recognized whether by the law or regulation, failure to so comply strictly with either the law or regulation which governs contract of employment will render the termination invalid and ineffectual, he cited Comptroller General Of Customs & Ors V Gusau (2017) LPELR – 42081 (SC) 1 AT 8
  4. He also argued that where the required notice is not served in an ordinary master/servant contract of employment, and payment in lieu of same is not paid, the only option open to such employee is an action in damages. He posited that the reason behind this position is that a willing employee cannot be imposed on an unwilling employer and this underlying philosophy is the primary reason why the court cannot order reinstatement of such “willing employee”. He relied on Ilodibia V Nigerian Cement Company Ltd (1997) LPELR – 1494 (SC) 1 AT 46, and submitted that it is only under a statutory employment that the court can declare the termination of employment unconstitutional and not an employment as in this instance suit where it can be determined by service of notice or payment in lieu of notice, and a dismissal and the process which resulted in same can only be declared to be wrongful. He cited Obanye V Ubn Plc (2015) LPEL R – 25891 (CA) 1 AT 19 – 20 PARAS A – C amongst other authorities and urged the court to dismiss reliefs i, ii and iv of the Claimant.
  5. On the second issue submitted by counsel, he argued that from the totality of the reliefs of the Claimant quoted in paragraph 4.1 of this address, it is clear that the Claimant is not challenging the reason for his dismissal, but merely the procedure leading to his dismissal, on the ground that it breached his right of fair hearing. He submitted that where a litigant is challenging his/her dismissal either on the ground of breach of fair hearing or the procedural steps resulting in such dismissal, then he bears the burden of proving the breach alleged, he placed reliance on Bill Construction Co. Ltd V Imani & Sons Ltd/Shell Trustees Ltd (2006) LPELR – 782 (SC) 1 AT 9 PARAS D – F and Sections 131, 132 and 133(1) of the Evidence Act, 2011, and Sanusi V Ameyogun (1992) LPELR – 3008 (SC) 1 AT 15 – 16 PARA B.
  6. Learned Counsel argued that the Claimant needs to prove his case, as most of them are in the realm of declaratory reliefs which cannot be granted on an admission of the Defendant, he relied on Anyanru V Mandilas Ltd (2007) LPELR – 670 (SC) 1 AT 16 – 17 Paras D – B. He added that the success of the claimant’s reliefs v and iv are dependent on him proving that he is entitled to the declaratory reliefs he is seeking. He contended that the content of paragraphs 7 to 17 of the statement of facts and 10 – 12 of the Reply to Statement of Defence shows clearly that the Claimant was investigated and faced the defendant’s Disciplinary Committee and his allegation of breach of fair hearing is anchored on the fact that i )three out of five officers of the Defendant were present during the sitting of the Disciplinary Committee and ii) the absence of the other two invited officers deprived the Claimant of fair hearing, as he was not given the opportunity to cross examine the absent officers.
  7. He submitted that there is a need for the Claimant to prove his allegations through credible and admissible documentary evidence and this he cannot do without the Disciplinary Committee Report, and in the absence of the report, this court cannot speculate on same. He continued that the Claimant who is seeking to rely on documentary evidence, such as, Exhibits VG1 to VG16 is duty bound to link the documentary evidence to the aspect of his case he wishes to establish. He added that the Claimant herein did not tie Exhibits VG1 to VG16 to any of the paragraphs of his two depositions, even in the least, any paragraphs of his pleadings. He stated that it is a settled state of the law that this Court can only act on documentary evidence demonstrated during the course of trial otherwise it will be unreliable. He submitted that Exhibits VG1 to VG16 is an invitation to this Court to embark on a venture of linking the Exhibits to the case of the claimant, which is not the duty of court. He cited OTARU & SONS LTD V IDRIS & ANOR (1999) LPELR – 419 (SC) 1 AT 55 – 56 PARAS D – B and submitted further that the failure of the claimant to link the documentary evidence to his case implies that there is no documentary evidence upon which this court can rely on in reaching the conclusion that the Claimant’s right to a fair hearing was breached or not, and that the procedure that led to his dismissal was irregular. He urged the court to discountenance Exhibits VG1 to VG16 and dismiss the case of the Claimant for failure to lead credible evidence to establish his declaratory reliefs.
  8. The defence counsel pointed out that under cross examination, Exhibits VG2, VG4, VG5, VG6, VG10 and VG14 were shown to the Claimant, and he affirmed that they are documents either printed out from his e-mail address or from the website of the defendant, thus, they are computer generated documents, and there was a need to comply with the mandatory provisions of Section 84 of the Evidence Act, 2011. He submitted that both Exhibits VG5 and VG14 must not only be pleaded and relevant to the case at hand but must equally be admissible in law in line with the provision of the Evidence Act. He thereafter drew the attention of the court to the case of SUBERU V STATE (2010) LPELR – 3120(SC) 1 AT 17 PARAS B – D, and continued that where Section 84 of the Evidence Act, 2011 is not complied with, the Exhibits are to be expunged from the record of proceedings. He cited Oyeyemi Adebayo Adeola V United Bank For Africa Plc (Supra) at pages 5 – 6 and submitted that the same fate should befall Exhibits VG2, VG4, VG6 and VG10 which are equally computer generated documents.  He added that the effect of expunging the cited Exhibits is that the Claimant has failed to prove his allegation of lack of fair hearing e.g. the number of people that ought to appear before the Disciplinary Committee and who were to form the quorum at the sitting of the Disciplinary Committee.
  9. Learned counsel also argued that Exhibit VG17 is an unsigned document, therefore it lacks any legal status and is thereby inadmissible. He placed reliance on Omega Bank (Nig) Plc V Obc Ltd (2005) LPELR – 2636(SC) 1 AT 35 – 36 PARAS B – A. He added further that assuming Exhibit VG5 is not a computer generated document, it is still inadmissible because it is unsigned. He submitted that Exhibits VG5, VG14 and VG17 are core documents in the establishment of the Claimant’s case, and they are all inadmissible without any evidential value. Consequently, the claimant’s declaratory reliefs should be dismissed.
  10. Counsel reiterated that the claimant’s contention that the committee was not properly constituted is misplaced as everyone who must be in attendance was present. He argued on the claimant’s relief v that this relief is in the realm of special damages which must not only be pleaded with particulars, but must also be strictly proved, and since the Claimant did not plead his salaries, emoluments and allowances, let alone adduce any evidence in that regard, the said relief should be dismissed. He cited Adekunle V UBA Plc (2018) LPELR – 41124 (CA) 1 AT 36 – 39 PARAS D – A.
  11. In conclusion, counsel submitted that the Claimant failed woefully to establish any of his reliefs, and urged the court to dismiss the case of the Claimant.
  12. The claimant’s final written address was filed on 4th September, 2019, wherein Abiodun Bello Esq. for the claimant formulated  two issues for determination, to wit:
  13. Having regard to the facts and circumstances of this case, was there a reasonable ground to believe that the claimant was accorded a fair hearing in the process that led to his suspension from the employment of the defendant and whether due process was followed in line with the group credit audit investigation report dated 6th October 2015.
  14. Whether quorum was formed and due process and procedure followed, in line with the Group HR, Disciplinary Process & Sanctions Policy (policy N0 hrg:  002, June 2010), before the claimant was dismissed and whether the dismissal was not wrongful.
  15. On the first issue, learned counsel submitted that there is evidence that the claimant amongst others was invited before the defendant’s disciplinary committee with the invitation captioned “attendance mandatory”. He pointed out that only two of the five persons that were accused of failure to carry out their responsibilities attended the sitting, while the other two were absent for no cogent reason and the proceeding was conducted via teleconference, whereby no member of the committee was seen seated. He submitted that from the totality of the above, it is clear that the Claimant was not afforded fair hearing by the Defendant, before he was suspended and eventually dismissed. He cited Adigun & Ors V A.G. Oyo State & Ors (1987) 1 NWLR (Pt. 53) 678 at 758
  16. Counsel submitted that from page 2 of Exhibit VG5, it is clear that it was the RM (Agboola Adewale), not the claimant that handed the ATC in question to the customer and submitted further that the defendant never denied this fact, hence it is deemed admitted, he relied on MILAD Lagos State V Adeyiga (2012) SCM 183 AT 211 PARAS B-E.. He added that DWI confirmed this position in paragraph 14 of his statement on oath and under cross examination. He also pointed out that DW1’s evidence contradicts the defendant’s reason for suspending the claimant, and this constituted a brand of denial of the claimant’s right to fair hearing. He placed reliance on Council of Federal Polytechnic, Mubi V. Yusuf (1998) 1 SCNJ 11 at 17.
  17. Learned counsel argued that it is clear from the facts in this case, that there was no justification for the Defendant to suspend, let alone terminate the employment of the Claimant, on account of releasing the ATC to its customer. He pointed out that paragraphs 21 and 23 of DW1’s written statement on oath, are contradictory and submitted that a witness who gives two contradictory testimonies under oath is not entitled to any credibility. He cited EZEMBA V IBENEME (2004) 14 NWLR (PT. 894) 617 @ 654, PARAS. A-F.
  18. The claimant’s counsel pointed out that the defendant led evidence that the Claimant’s response to the query issued to him exonerated (4) four staffs, but the BM, who was invited to the committee, was suspended, along with the Claimant and the RM. He continued that DW1 contradicted himself by deposing in paragraph 27 of his adopted deposition that all the concerned staffs invited to the Committee that were qualified to be tried were present on the day of the meeting, whereas by his paragraphs 31 & 32 of the same deposition, he deposed that only (3) three out of the (5) invited staffs were present.
  19. He submitted that the evidence of DW1, and his depositions are incredible and unreliable. He placed reliance on Kwara V Innocent (2009) 1 NWLR (PT.1121) 179 AT 231, PARAS A-B and urged the court to hold that the Claimant was denied fair hearing and that his purported suspension is wrongful.
  20. Learned Counsel referred to the allegation against the claimant as contained in Exhibit VG6 i.e. failure to follow due process in releasing ATC to a customer, and argued that the decision of the committee that the claimant’s employment be terminated was based on gross misconduct, and as such differs from Exhibit VG6. He argued that by taking evidence of Daniel Wajuihan (Credit Monitoring Officer) behind the claimant, his right to fair hearing was breached by the defendant. He cited Garba V. University Of Maiduguri (1986) 1 NWLR 550 at 617. It was also submitted by counsel that the issue of fair hearing transcends the fact that the Claimant was heard, rather, what is paramount is whether there was a fair trial. He stated that the Committee breached a cardinal rule of fair hearing, when they heard the evidence of witnesses behind the claimant.
  21. Counsel argued that it is glaring from the findings of the committee that the committee was bias because it did not consider Exhibits VG3 and VG5 before making its findings and recommendations. He continued that no witness testified against the claimant before the Committee, hence the committee was the accuser, prosecutor and the judge at their sitting. He posited that the claimant was merely called upon to establish his innocence, and this is a clear violation of the claimant’s right to fair hearing. He relied on University of Ilorin V Tosin Akinrogunde (2006) ALL FWLR (Pt. 302) 176 at 198- 200. Counsel also cited NEPA V EL-FANDI (1986) 1 NWLR (Pt,18) 550 in submitting that this court has a sacred duty to review the processes that culminated in the dismissal of the Claimant, with a view to ascertaining whether there was a reasonable basis to make the allegation of gross misconduct. He maintained that the committee was not properly constituted when the claimant’s fate was decided and argued that Exhibit VG17 is admissible because an unsigned contract may still be enforceable between parties, he cited MTN (Nig) Communications Ltd V Corporate Communication Inv. Ltd (2019) 9NWLR (Pt. 1678) 427.
  22. Counsel argued further that that the proper time to raise an objection to the admissibility of documents is when it is being tendered at trial and cited Etim & Ors V Ekpe & Anor (1983) 14 NSCC 86 at 96, in submitting that the defendant’s counsel having failed to raise an objection at trial, cannot now validly object to the admissibility of the documents. He submitted that by Order 1 Rule 9 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, this court may depart from the rules of Evidence in the interest of Justice.
  23. Learned counsel pointed out that the defendant withheld evidence by not tendering the documents frontloaded along with its defence and urged the court to presume that the documents will be against the interest of the defendant. He placed reliance on Gambari V Saraki (2009) ALL FWLR (PT.469) 445 @ 449, and Section 167(d) of the Evidence Act, 2011. Learned Counsel added that nowhere in the entirety of this suit was it established that the defendant gave the claimant the Credit Approval Communication Memorandum.
  24. It was argued by counsel that the written statement on oath of DW1is incompetent in law and liable to be discountenanced because the facts deposed therein are not within personal knowledge of the deponent and there is no explanation as to how he came about those facts, he cited the case of Maja Vs. Samouris (2002) FWLR (Pt. 98) 818 at 840, Paras. F – G, and urged the Court to strike out paragraphs 27, 30, 32, 39, 40, 41, and 42 of the DW1’s Written Statement on Oath/Affidavit for offending Section 115 of the Evidence Act, 2011. He contended that the act of the Defendant, of deceitfully inviting the Claimant to her head office, and detaining him at the Special Fraud Unit, Ikoyi, after he was wrongfully dismissed is unlawful and in violation of Section 34(1) of the 1999 Constitution, he urged the court to so hold.
  25. Counsel argued that the claimant is entitled to all earned salaries and emoluments despite his wrongful dismissal by the defendant, and cited Underwater Eng. Co. Ltd. V Dubefon (1995) 6 NWLR (Pt. 400) 156. SC. In conclusion, counsel urged the court to give judgment in favour of the Claimant by granting the reliefs sought.
  26. The defendant filed a reply on point of law on 10th October, 2019 wherein counsel reiterated that the claimant’s right to fair hearing was not breached in the process leading up to his dismissal and the onus of proving the nature of the claimant’s employment with the defendant, rests on the claimant himself, he cited Organ & Ors. v Nigeria Liquified Natural Gas Ltd & Anor (2013) LPELR-20942(CA). Counsel also distinguished the case of University of Ilorin v Akinrogunde (SUPRA) from the instant case and stated that the employment in contention in that case was a statutory employment, while the one in this suit is purely master/servant. Learned counsel reiterated his argument that Exhibits VG5 and VG17 are inadmissible and contended that the exception in the MTN Communication Ltd. case cited by the claimant only applies where parties are at par on the existence of a contract but the agreement is contained in an unsigned document, which is not the case in this instance and cited Ashakem v A.M. Inv. Ltd (2019) 5 NWLR (Pt. 1666) 447 at 464-465. In conclusion, counsel urged the court to discountenance the arguments of the claimant’s counsel in its entirety.
  27. I have thoroughly considered the pleadings, evidence and arguments canvassed in this suit and have formulated two issues for the just and effective determination of this suit, to wit:
  28. Whether or not the claimant’s dismissal and procedure leading thereto was validly done.
  29. Whether or not the claimant is entitled to the reliefs sought.
  30.  It is on record that the defendant’s counsel in his final address, raised an objection as to the admissibility of certain documents tendered by the claimant admitted as Exhibits in this case. I will stop now to consider the said objection before delving into the judgment.

Ruling on the Defendant’s Objection

  1. The defendant in its final written address objected to the admissibility of Exhibits VG5 and 17 on the ground that they are unsigned, and Exhibits VG2, VG4, VG6, VG10 and VG14 on the ground that they are computer generated documents and failed to meet the requirement set out in Section 84(2) of the Evidence Act 2011. The position of law was clearly outlined by Abdul-Kadir JCA in Okolo Enterprises Nig. Ltd. & Anor. v Ezeani (2013) LPELR-22577(CA)where his lordship held that

“The position of the law in relation to the question of admissibility of a document is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern admissibility of a document namely: (a) is the document pleaded, (b) is it relevant to the inquiry being tried by the court and (c) is it admissible in law.”

  1.  It is discernible from the above authority that it is not enough for a document to be pleaded and relevant to be admissible, it must also be admissible in law. It is not in doubt that Exhibits VG5 and 17 are relevant and were pleaded by the claimant in this suit. This is as contained in paragraph 15 of the statement of facts and as deposed to in paragraphs 9-11 of the CW1’s written statement on oath which was adopted at the trial. The only question left to be resolved is whether the exhibits are admissible in law. A look at Exhibits VG5 and VG17 reveals that both documents are investigative report on the called in guarantee and the minutes of the disciplinary committee of the defendant respectively, which are unsigned. The legal status of unsigned documents was discussed in the case of Brewtech Nig. Ltd v Akinawo & Anor (2016) LPELR-40094(CA) where Nimpar JCA held thus:

“The law is trite that an unsigned document is worthless and void… Therefore it commands no judicial value before this court.”

See also Enebong & Anor v Edem & Anor. (2016) LPELR-41190(CA).

47.It follows therefore that Exhibits VG5 and VG17, though pleaded and relevant in the instant case are void and worthless documents which commands no judicial nor evidential value before this court. Consequently, I find that both Exhibits VG5 and VG17 are inadmissible in law and are hereby discountenanced. I so hold.

48.On the objection as to the admissibility of Exhibits VG2, VG4, VG6, VG10 and VG14 which was predicated on the ground of non-compliance with the provisions of Section 84 of the Evidence Act.  It is trite law that for computer generated documents to be admissible, the conditions set out in Section 84(1)-(5) of the Evidence Act, 2011 must be complied with. See Dickson v Sylva & Ors. (2016) LPELR-41257 (SC) where Nweze JSC held as follows

“…In actual fact, Section 84(supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84(4). In either case, the conditions in Section 84(2) must be satisfied.”

  1. The provisions ofSection 84(4) of the Evidence Act, 2011 provides as follows:

“In a proceeding where it is desired to give a statement in evidence by virtue of this section a certificate-

  1. a)Identifying the document containing the statement and describing the manner in which it was produced;
  2. b)Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer. (1) dealing with any matters to which the conditions mentioned in subsection (2) above relates; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best knowledge and belief of the person stating it.
  3. Also, Section 84 (5) (c) provides that “…a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of appropriate equipment.”  It is clear from the above provision that for a computer generated evidence to be admissible in law, the party seeking to tender same must satisfy the conditions set out in Section 84(2) and a certificate in accordance with Section 84(4) of the Evidence Act, 2011 must be exhibited. A cursory look at the processes and Exhibits before this court reveals that there is no certificate of compliance tendered in respect of Exhibits VG2, VG4, VG6, VG10 and VG14, just like there is no evidence of compliance with the conditions set out in Section 84(2) of the Evidence Act. In the face of this failure to meet the mandatory requirements of the law, Exhibits VG2, VG4, VG6, VG10 and VG14 is liable to be expunged from the record of this court because they are inadmissible in law,. The argument of learned counsel to the claimant that the defendant slept on his right by not objecting to the admissibility of these documents at trial will not avail him, as pleading and relevancy are only a part of the criteria for admissibility of a document, and once a document is not admissible in law, it can be expunged even at the Judgment stage. On this issue, Nwodo JCA held in the case of Pillars Nig Ltd v Mrs. Hannah Desbordes & Ors. (2009) LPELR-8204(CA), that:

“it is trite that where no objection is raised when a document is offered in Evidence, the document will be admitted and acted upon and the opposing party cannot later complain on the admissibility and reliance unless the document is inadmissible by law.” ( underlining mine for emphasis)

  1.  Also, in Alhaji Safianu Aminu & Ors. v Isiaka Hassan & Ors (2014) LPELR-22008(SC) Peter-Odili JSC held that:

“The rule of evidence and practice in civil as well as criminal cases prescribes that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when it is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible for failure to comply with the rprovisions of the law…” (Emphasis mine). The courts are also enjoined to expunge inadmissible exhibits from its records at the judgment stage. See Kubor &Anor. v Dickson & Ors. (2012) LPELR-9817 (SC) where Onnoghen JSC held thus:

“On the sub issue as to whether the Court has the power to expunge for its record evidence or documents earlier admitted without objection by counsel, it is settled law that courts can do that and has been doing that over years…”

  1. In light of the foregoing, I find that Exhibits VG5 and VG17 are unsigned documents and therefore lacks any evidential value, while Exhibits VG2, VG4, VG6, VG10 and VG14 are computer generated documents which failed to meet the mandatory requirements set out in Section 84 of the Evidence Act, 2011, are consequently expunged from the record of this court. I so hold.
  2. On the first issue formulated by me, it is the general position of the law that he who asserts must prove and in a case of wrongful or unlawful termination of employment, the evidential burden of proof rests on the claimant; See Section 131, 132 and 133 of the Evidence Act 2011 and the case of Zenith Bank v Akinniyi (2015) LPELR- 24715 (CA). The claimant must plead and prove not only his employment but also the terms and conditions of such employment for it to constitute sufficient foundation for the action. See |Joseph Enugunum & Ors. v Chevron Nigeria Limited (2014) LPELR-24088 (CA)..
  3. The claimant’s appointment is not in contention and is undisputed in this case, even as Exhibits VG1 and VG3, alluded to the claimant’s employment with the defendant. What is in contention is the propriety or otherwise of the dismissal of the claimant whereby he is contending that his dismissal is in breach of his contract of employment, while the defendant in a bid to justify the dismissal, contended that the claimant was dismissed for Gross misconduct.
  4. It is settled law that in civil proceedings, the burden of proving of a particular fact rests on the party who asserts it, thus the initial burden of proof rests on the party who will fail if no evidence is called on an issue. This burden however is not static, if a party successfully proves a particular fact, the burden shifts to the other party to disprove the assertions. See Sections 135,136, and 137(1) of the Evidence Act 2011 and the case of First Inland Bank v Craft (2011) LPELR-4167 (CA). Therefore in an action for wrongful dismissal/termination of employment, it is the employee’s duty to plead and prove before the court, his contract of employment and the terms thereto and how the terms were breached by the defendant, see the judgment of the Supreme Court delivered by Uwaifo J.S.C in Idoniboye-Obu v N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 where he held as follows:

“A servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful.”

  1. It is only after the claimant must have discharged this burden, that the case of the defendant will be considered. It is on record that the claimant in this case pleaded that he was employed by the defendant vide letter dated 16th June 2008, and his employment was confirmed vide a letter dated 20th January, 2009 with effect from 16th December, 2009. However, it is baffling that the appointment letter dated 16th June, 2008, which is the contract of employment between the parties in this suit was not produced and tendered by the claimant, even more baffling is the fact that no explanation was offered by the claimant on the non-production of the letter of employment. This omission is in no doubt fatal to the claimant’s case as all claims under an employment relationship derive their essence from the contract of employment. This position was well captured by Owoade JCA, in Dr. Ajewunmi Bili Raji v Obafemi Awolowo University(2014) LPELR-22088(CA) where he held that:

“… the terms and conditions of contract of service are the bedrock of any case where the issue of termination of employment calls for determination.”

  1.  In the same vein, Akhaas JCA, held in NEPA v John Ojo Adeyemi (2006) LPELR-5932(CA) as follows:

“… In an action for wrongful dismissal, it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial judge. Without the contract of service and its particulars being pleaded by the plaintiff, no evidence of the terms of the contract which have been breached will be admissible at the trial; and this will be fatal to the action as it will lack foundation.” See also Amodu v Amode (1990) NWLR (150) 356.

The letter of confirmation of appointment dated 20th January, 2009, and admitted as exhibit VG1 in this suit, cannot therefore take the place of the employment contract as it did not create the employment relationship, and thus is not the foundation of the claimant’s employment with the defendant. The term confirmation was explained by Ogunwumiju JCA in the case of Afribank Nigeria Plc. v Barrister Sunny A. Anuebunwa (2011) LPELR-3635(CA) when he held that:

“the word “confirmation” as defined by the Black’s Dictionary 6th Edition Pg. 298 means: “ A contract, or written memorandum thereof by which that which is infirm, difficult of proof, imperfect, or subject to be avoided is ratified, rendered valid and binding, made firm and unavoidable. To give formal approval, act or process of confirming.”

  1. Flowing from the above, it can be rightly concluded that a letter of confirmation only seeks to confirm or ratify the terms in a contract of employment and does not by itself constitute the contract of service. It is consequent upon the evidence adduced in this case that is, the claimant’s refusal to place the contract of employment before this court and failure to offer any explanation as regards its whereabouts that I find that the claimant’s suit therefore has no leg to stand on and is bound to fail. It is settled law that one cannot build something on nothing and expect it to stand. See Macfoy v UAC (1982) AC 152.
  2. In view of the above, I find no basis for the court to delve into the issue of lack of fair hearing and unlawful dismissal raised by the claimant in this suit against the defendant, as same is untenable in the light of the failure of the claimant to place his contract of employment before the court, which I find is fatal to his case.
  3. On the second issue formulated by me, I shall consider the claimant’s reliefs (i)-(iv) together. I find that reliefs (i)-(iv) are declaratory reliefs. The fundamental principle to the grant or refusal of declaratory reliefs is that the claimant must satisfy the court that he is indeed entitled to the reliefs sought, and Courts do not grant declaratory reliefs in default of defense or indeed on admissions without hearing evidence and being satisfied by such evidence, see Hadeija v Abbas 2016) LPELR-40234(CA) where Bdliya JCA held thus:

“A declaratory relief is a discretionary one which is not granted as a matter of course. The plaintiff must adduce strong and credible evidence in support of his claim to be entitled to judgment.”

  1. The claimant in this suit bears the burden of proving that he is entitled to reliefs (i)-(iv) but he has placed nothing before this court to show his entitlement to the said reliefs. It is on record that the claimant failed to tender his contract of employment and the terms thereof, just like there is no documentary evidence of the process culminating in the claimant’s dismissal before this court which is the basis of his claim for the declarations he is seeking. It is trite law that oral evidence in circumstances where documentary evidence is necessary, is insufficient to ground a claim. In this instance, the oral evidence of the claimant must be hinged on documentary evidence by the nature of the claim in this suit, it is evident that the reliefs in this case are founded on lack of fair hearing and unlawful dismissal. Therefore, documentary evidence of the proceedings of the disciplinary committee of the defendant and the claimant’s contract of employment must be placed before the court to enable this court adjudicate on all material evidence in reaching a decision in this matter, see Yakub Dauda Esq. v Access Bank Plc. (2016) LPELR-41143(CA) where Onyemenam JCA held that “where there is oral as well as documentary evidence, the documentary evidence would naturally be preferred. It would be the basis for the assessment of the credibility and veracity of the oral evidence.”
  2. It was also held by Opene JCA in Onye & Anor. v Kema & Ors. (1999) LPELR-6562(CA) that “it is wrong law that a party will give oral evidence of the contents of a document which is not pleaded and also not before the court.” In the instant case, the claimant cannot solely rely on the oral evidence of a breach of his contract of employment and lack of fair hearing before the defendant’s disciplinary committee which led to his dismissal, as this falls short of the standard of proof required in a civil suit which is assessed by the balance of probabilities or preponderance of evidence, see Section 134 of the Evidence Act, 2011. Consequently, I find that the claimant has failed to prove that he is entitled to reliefs (i)-(iv), the reliefs therefore fails. I so hold.
  3. On reliefs (v) and (vi), I find that they are both predicated on the findings of this court in respect of reliefs (i)-(iv), therefore the failure of reliefs (i)-(iv) above automatically results in the failure of the reliefs (v) and (vi). Consequently reliefs (v) and (vi) also fails. I so hold.
  4. It is based on the reasoning and findings outlined above, that I find that the claimant having failed to place his contract of employment before the court, and the terms and conditions of his employment, the base of his action is removed, and he is left with an empty action that lacks any foundation, thus making his case untenable, unproven and unmeritorious and liable to be dismissed.

Finally, I hold the claimant has failed to establish his case against the defendant, consequently, this action fails and is hereby consequently dismissed.

 

I make no order as to cost

 

 

Judgment is accordingly entered.

 

 

 

 

Hon Justice A.A. Adewemimo

Presiding Judge

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