IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
25TH DAY OF NOVEMBER 2021
SUIT NO. NICN/ABJ/120/2018
Mr. Adedayo Ogunleye …………………………… claimant
Stanbic IBTC Bank Plc …………………………… Defendant
1. The claimant commenced this action via a general form of complaint dated 26th of April 2018. The complaint was amended on the 3rd April 2019. The claimant’s claim as per the amended complaint and the statement of facts are as follows:-
1. A declaration that the Claimant's employment was wrongfully terminated.
2. An Order of Court commanding the Defendant to either recall the Claimant or issue the claimant with a disengagement letter in lieu of a letter of dismissal.
3. An Order of Court Commanding the Defendant to pay to the Claimant all his emoluments, allowances from March, 2015 till September, 2015 which is N2, 201,000. 00 (Two Million. Two Hundred One Thousand Naira Only)
4. An order of Court Commanding the Defendant to pay to the claimant all his emoluments, allowances being N4,402,000,00 (Four Million. Four Hundred and Two Thousand Naira Only) for the period of 1st September, 2015, till 1st September. 2016.
5. An order of Court Commanding the Defendant to pay to the claimant all his emoluments, allowances being N4,402,000,00 (Four Million, Four Hundred and Two Thousand Naira Only) for the period of 1st September, 2016, till 1st September. 2017.
6. An order of Court Commanding the Defendant to pay to the claimant all his emoluments, allowances being N4,432,000,00 (Four Million, Four Hundred and Two Thousand Naira Only) for the period of 1st September. 2017, till 1st September, 2018.
7. The sum of N250, 000,000.00 (Two Hundred and Fifty Million Naira Only) as damages for wrongful termination of the Claimant's employment.
8. Post judgment interest at the rate of Ten percent (10%) until the judgment sum is fully liquidated.
9. The cost of this suit.
2. The claimant in proof of his case testified as CW1 and tendered exhibits A-J which were duly admitted. The summary of the claimant's case is that his employment with the defendant was illegally terminated on an allegation that he compromised his password which facilitated a fraud against the defendant. The allegation which the claimant vehemently denied.
3. According to the claimant since his employment with the defendant in 2005, till 23rd March 2015, when the claimant was purportedly dismissed by the defendant, the claimant has never been queried or suspended for any offence or misconduct. And that he had worked diligently and carried out his assignment professionally in the service of the defendant and this has earned him several promotions by the defendant. Thus, the claimant was promoted in 2008, 2009 and 2011 respectively. The claimant further claimed that from September 2013, his. Salary per annum was N4,402,000.00 (Four Million Four Hundred Naira Only). The claimant also stated that the defendant initiated criminal case against him and when the criminal proceeding is ongoing the defendant stopped his salary and dismissed him from service of the defendant.
4. For the defendant the claimant was the then Head of Service Support (HSS) at its Gwagwalada Branch when a fraud involving the unauthorized transfers of funds totaling N36,410,00.00 (Thirty Six Million, Four Hundred and Ten Thousand Naira only) was perpetrated on the two accounts of Rainoil Limited and Pabod Breweries Limited (both customers of the defendant). An investigation into the fraudulent transfers indicted the claimant and another individual as complicit in the circumstances leading to the fraudulent transfers as his official laptop and log in profiles were used in effecting the fraudulent transfers. In the course of investigation it was discovered that the claimant allowed unauthorized individuals into the Bank’s premises after the close of business and that his conduct exposed the Bank to reputational risk and financial loss. The incident was reported to the police for investigation and prosecution of offenders and to also recover depositors funds involved.
5. The claimant was paid his salaries up till his dismissal in March 2015. The letter stated in paragraph 8 of the amended statement of facts was dated 16/9/2013 and not 13/9/2013. The claimant was vide memo of 13/2/2015, invited to attend disciplinary enquiry scheduled to hold on 17/2/2015 at Lagos for the claimant to explain his role regarding allegations of misconduct in breaching internal policy control by allowing unauthorized persons into the premises of the Bank after closing hours and surrendering the defendant’s official laptop assigned to claimant to strangers who used same to defraud the bank the sum of N36,410,000.00 using his finacle user profile and that of the Asset Custodian, Sunny Nwokeukwu. The claimant did not honour the invitation and failed to attend the disciplinary enquiry. The claimant rather informed the defendant that his lawyers advised him not to attend the disciplinary hearing and indeed the claimant’s solicitors County Chambers by a letter dated 16/2/2015 emphatically informed the defendant that the claimant will not honour the invitation. The defendant replied the claimant’s Solicitors drawing their attention to the distinction between the invitation to attend the defendant’s internal disciplinary enquiry and the then ongoing prosecution of the claimant by the Police. The claimant was given another opportunity by rescheduling the disciplinary enquiry, but still failed to appear before the committee.
THE SUBMISSION OF THEDEFENDANT.
6. The defendant formulated a sole issue for determination, to wit:-
Whether the claimant has established, on preponderance of evidence led before this Honourable court, that he is entitled to the reliefs sought in the statement of facts.
7. Kehinde Aina, Esq; counsel for the defendant in arguing the sole issue for determination submitted that the Claimant in this instant suit has not in any way established that he is entitled to the reliefs sought herein. It is submitted that the Claimant has not discharged the evidential burden placed on him by law in proof of all alleged facts, therefore the entire claims of the Claimant fail and the Reliefs sought are liable to be dismissed.
8. It is submitted that the law is settled that parties are bound by their pleadings. In support of this contention reliance was placed on the case of aremu V adetoro (2O07) 16 nwlr (PT. 1060) 244 at 261. According to counsel this Court is bound to strictly to look at the Reliefs sought by the Claimant and the issue in controversy between the parties on the basis of the Reliefs sought. This position finds support in the decision of the Supreme Court in the case of okwejiminor V gbakeji (2008) 5 nwlr (PT.1079) 172 at 208, where it was stated thus:
"It is settled law that both the Parties and the Court are bound by the pleadings filed in the Suit and are not allowed to go outside the pleadings either in introducing evidence or in deciding the issues in controversy"
9. It is submitted that the Reliefs sought before this Honourable Court, ought to guide the determination of the issues in controversy, as any issue that does not flow from the reliefs sought cannot be the real issue in controversy.
10. Counsel argued the sole issue based on two issues, as follows:-
A. Whether the dismissal of the claimant by the defendant, while charge No. CMC/AB/CR/45/2014 was pending is unlawful.
B. In view of the (A) above, whether the Honorable Court can grant the reliefs sought by the claimant.
11. In arguing sub-issue A counsel submitted that the Claimant at paragraph 20(a) of his Statement of Facts sought a declaration that his employment was wrongfully terminated. From the Claimant's pleadings, it can be deduced that this claim of wrongful termination is predicated on the fact the Defendant dismissed the Claimant from its employment while charge number CMCI/AB/CR/45/2014 was pending in Court and without fail-hearing (sic).
12. It is submitted that in any civil proceedings, the onus is generally on the Plaintiff to plead both the facts and also lead cogent and credible evidence to prove his case before judgment can be given in his favour. See: olusanya V. osinleye (2013) 7 nwlr (PT. 1367) 148 @ 171, para. E. counsel submitted that a Court does not gram declaration of right either in default or on admissions, without taking, evidence and being satisfied that the evidence led is credible. The Plaintiff having by his Complaint sought declaratory reliefs is thus expected to present material facts before this Court in order to be entitled to those reliefs. On this submission reliance was placed on the case of: nwaogu V. atuma (2O03) 11 NWLR (pt. 1364) 117 @ 141 - 142, paras, H – C.
13. It is on the strength of the above that the Defendant submits that the Claimant has not led cogent evidence or placed material facts before this Court to entitle him to the grant of the reliefs sought. This is because, first and foremost that in employment disputes, beyond the difference in nomenclature, a world of difference exists between wrongful termination and unlawful dismissal. While termination refers to the cessation of employment on account that the services of the employer are no longer required or on any other ground, dismissal is a disciplinary measure applied when an employee is guilty of gross misconduct.
14. From the Claimant's pleadings, it is clear that the action centers on a case of unlawful dismissal as the Claimant was dismissed by the Defendant as opposed to his employment being terminated. However, the Claimant in couching his relief sought a declaration that his employment was wrongfully terminated. The law is settled that for reliefs to be validly couched, they must flow from the averments contained in the statement of claim, failing which the relief would be deemed incompetent. On this submission reliance was placed on the case of neka & anor V. kunini & ors (2015) LPELR-26031(CA) where the Court held that:
"The facts of a case determine the reliefs a party may seek in any given case. Reliefs are the remedy arising from the cause of action." Per SANKEY, J.C.A. (P. 28, Paras. A-B).
15. It is the submission of counsel that the principal reliefs sought by the Claimant do not flow from the cause of action. As the Claimant did not seek reliefs flowing from the cause of action. It is submitted that the Court cannot grant the Claimant's reliefs as properly constituted. Counsel urged the Court to strike out the Claimant's first and principal relief as same is incompetent. Counsel further relied on the case of Garuba v. K.I.C. Ltd. 85 Ors (2005) LPELR-1310(SC).
16. In the event that the Court is minded to construe the relief for wrongful termination as one for unlawful dismissal, it is our position that where an employee has alleged dismissal was unlawful, the burden lies solely on him to prove terms and conditions of his employment. On this submission counsel relied on the case of john holt V. nzeribe (2018) LPELR-44943(CA), where the court held:
"In an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of contract of employment and in what manner the said terms were breached by the employer. See Angel Spinning & Dyeing Ltd Vs Ajah (2000) 13 NWLR (pan 685) 532 and U.B.A Pic Vs Oranuba (2014) 2 NWLR (part 1390) 1." Per HASSAN, J.C.A. (P. 19, Paras. C-D)"
17.Counsel also refers to the cases of uba plc V. oranuba (2013) lpelr-
20692(CA), Angel Spinning & Dyeing Ltd v Ajah (2000) 13 NWLR (Pt.685) 532.
18. It is submitted that the burden is therefore on the Claimant, not only to place the terms of his employment with the Defendant before the Court, but to equally show the manner in which those terms were contravened, thereby making his dismissal unlawful.
19. According to counsel, it is not in contention that the contract of employment between the parties creates a Master-Servant Relationship. The nature of that relationship has been explained in ajuzi V fbn plc (2016) lpelr- 40459 as follows:-
"Perhaps, what should be borne in mind at all times is that a master can terminate the employment of his servant at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract of employment. Usually, the motive for such termination is irrelevant and so whenever it is dispensed with in the process of termination, no eyebrows are usually raised"
20. It is submitted that the Defendant reserves the right to dismiss the Claimant from its employment under the law, once the conditions in the terms of employment are fulfilled and the principles of fair hearing adhered to. In this regard, the Supreme Court has held in patrick ziideeh V. rivers state civil service commission (2007) lpelr-3544(Sc) that:
"In statutory employment just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided the employee is given the opportunity of fair hearing. ARINZE V. FIRST BANK OF NIG. LTD (2004) ALL FWLR (Pt. 217) 668, (2004) 12 NWLR (Pt. 888 |) 663, (2004) 5 SCNJ 183, (2004) 5 SC (Pt. I) 160, (2004) 5 SCM 35." Per Ogbuagu JSC.
21. The Court of Appeal in avre V. nipost (2O14) LPELR-22629(CA) also provided a thorough guideline on this issue as follows:
'The law is that ordinarily a master is entitled to dismiss his servant for good or bad reasons or for no reason at all; that where parties have reduced the terms and conditions of service into agreement, the conditions must be observed; that where a contract of employment had been properly terminated, intention or motive for doing so becomes totally irrelevant; and that where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to him to explain, justify or else defend the alleged misconduct. See the following authorities - Nigerian Oil Mills Ltd. V. Daura (2000) 1 NWLR (Pt. 639) 78, Arinze V. First Bank (2000) 1 NWLR (Pt. 639) 78; UzohoV. Task Force on Hospital Management (2004) 5 NWLR (Pt. 867) 627 and Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457) 632, where the Supreme Court held; "Before an employer can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. In the case at hand, the Respondent had done that. See Exhibit B wherein the Respondent called upon the Appellant to give comprehensive explanation of the three accusations of misconduct and impropriety leveled against him. These were replied by the Appellant in Exhibit C most unsatisfactorily. It is not necessary, nor is it a requirement under S.33 of the 1979 Constitution [S.36 of 1999 Constitution] that before an Employer summarily dismisses his Employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the Employee is for gross misconduct involving dishonesty bordering on criminality. - - - To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient it the complaint as formulated conveys to him the nature of the accusation against him". [As per Wali, JSC] In effect, before an Employer can dispense with the services of his Employee, all he has to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation against the Employee involves accusation of crime. See Arinze V. First Bank (supra), where this Court per Olagunju, JCA states the position quite clearly us follows;- "It seems to me from the perspective of the decisions on the powers of an Employer to dismiss summarily his Employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence". In this case, the Appellant was issued with a query, Exhibits J and P, to which he responded to in Exhibit K and it would appear that the Respondent did not find his explanation to same satisfactory and it exercised its power to dismiss him from its service "for absence from duty without permission or leave". " Per AUGIE, J.C.A. (Pp. 36-38, paras. B-F).
22. It is submitted that in order to determine whether the dismissal in the instant case was unlawful, the Court will examine the terms and conditions of employment of the Claimant contained in the letter dated November 6, 2008 (Exhibit A1-2 and exhibit B) as well as the Defendant's Disciplinary Policies tendered by DW1 (Exhibit DWI), and ascertain whether or not the dismissal was done in line with the terms of employment and extant laws particularly the rules on fair hearing.
23. In the case of adekunle V. uba plc  LPELR-41124(CA) the Court held as follows:
"I wish to restate that, in an employer/employee dispute, it is the applicable conditions of service or any, other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties. Accordingly, the condition of service is the bedrock of the contract of employment. It therefore means that, where there are documents or series of documents which stipulate the terms and conditions of any employment contract, no Court should look outside those terms and conditions as stipulated in the document in deciding the rights and obligations of the parties to the agreement.
24. It is trite that where the terms of an employment are written and express, the parties are bound by the agreement. The Supreme Court in the case of layade v. panalpina (1996) 6 NWLR (Pr. 456) 544 at558; (1996) 7 SCNJ 1 at 14-15 per adio. J.S.C., also held as follows:
''The general rule is that where parties have embodied the terms of their agreement or contract in a written document, as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. . So, where the parties enter into a contract, they are bound by the terms of that contract and it is unfair to read into such a contract the terms on which there was no agreement.’’
25. Counsel also relied on the case of dornier aviation nigeria aiep ltd. V. oluwadare (2O06) LPELR-11579(CA) where the Court of Appeal held that:
"Once conditions of service exist between the parties the provisions contained therein are binding on them. Any disciplinary measures taken by an employer against an employee upon an allegation of misconduct, such as termination of employment or dismissal, must be in accordance with the laid down procedure as provided by the conditions of service. See: PHMS Vs Ejitagha (2000) I I NWLR (677) 154 at 160 A-B; Edet Vs Chief of Air Staff (1994) 2 NWLR (324) 41 at 58 DE." Per KEKERE-EKUN, J.C.A. (P. 26, Paras. B-D).
26. In the light of the above, the Defendant invites the court to examine Exhibits A and B and exhibit DwI, which are the terms of Claimant's employment with the Defendant as these are the documents governing the employer-employee relationship.
27. It is submitted going by the said terms as contained in the referenced exhibits, there is a provision governing disciplinary procedure and dismissal of an employee from the Defendant. Specifically, the document stipulates the category of misconducts which the Defendant can punish by dismissal. Under CLAUSE 16.1 of THE DEFENDANT’S disciplinary policies, one of these class of misconducts is:
‘Conversion, misapplication or misappropriation of the assets of the Group or customers. Withdrawal, Conversion or Transfer from active or dormant account; posting without appropriate authorization. Any other offence/conduct which in the opinion of management warrants a dismissal’.
28. According to counsel it is established that the misconduct for which the Claimant was invited to the Disciplinary to wit- defrauding the Bank through gross negligence in the compromise of his password was contemplated under the contract of employment. It is argued that a dismissal is only unlawful if the procedure for same does not comply with the procedure stipulated in the documents forming part of the contract between the parties and if the principles of fair hearing were not observed. The Court of Appeal in recognition of the above position held in ndili V. akinsumade & ors (2000) LPELR-6910(CA) as follows:
"The test of whether the dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the dismissal conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rule of natural justice so as to render the formal compliance a travesty. See Nicol v. E.C.N. (1968) 3 ALR. Comm. 434; Adedeji v. Police Service Commission (1968) NMLR 102; Denloye v. Medical and Dental Practitioners Committee (1968) 1 All NLR 306; Awotedu v. Vice Chancellor, University of Ibadan (1982) OY S.H.C 262; and Olaniyan v. University of Lagos (1985) 3 NWLR (Pt.9) 599." Per OLAGUNJU, J.C.A.(Pp. 65-66,'paras. D-A.
29. The material question at this point then becomes: whether the defendant conformed to the procedure as laid down in the policy and the principles of fair hearing in conducting the disciplinary enquiry which led to the eventual dismissal of the claimant?
30. It is submitted under the policy on disciplinary procedure contained in exhibit DWI, particularly pages 4-8, the procedure for conducting the disciplinary enquiry was clearly spelt out. Part of the provisions includes adequate time to prepare a defence, allowance to call witnesses, allowance to object to the constitution of the panel amongst others. A perusal of exhibit dwg which is the memo inviting the Claimant to the Disciplinary Committee reveals that the Claimant's rights in this regard which are in tandem with the guidelines in exhibit DwI were also spelt out. These provisions, as the Court will find, were made in a manner that guarantees the fundamental right of the Claimant to fair hearing.
31. It is submitted that the defendant having complied with the procedure, there was no breach of the conditions of employment neither did the Defendant breach the Claimant's right to fair hearing. Counsel urged the Court to so hold. In the circumstance, it is submitted that the Claimant's dismissal cannot be adjudged unlawful. This is more so, as the core requirement of fair hearing is that an opportunity to be fairly heard is give. A Claimant who fails to take advantage of this opportunity cannot thereafter complain that his rights have been breached. On this contention reliance was placed on the case of uba plc & anor V. ugoenyi & anor (2011) LPELR-5065(CA), where the Court in espousing the principles of fair hearing held that:
"Let me place on record that fair hearing, which encompasses fair trial, entails, in the main, giving parties to any proceeding equal opportunity to ventilate their cases without undue interference by the court, including the lower court. The inviolate principle of fair hearing ties in the procedure adopted by a court in the determination of a matter and not in the Tightness of the its decision. The yardsticks to measure attainment of fair hearing by a court have been articulated and recycled in a litany of cases to include a party's right: (a) To be present throughout any proceedings and hear the evidence against him (b) To cross-examine witnesses that testify against him and read all documentary evidence in any matter, (c) To know in advance, except in recognized exceptions, the nature of evidence prejudicial to him. (d) To know, beforehand, the case he is to meet at the hearing .and have sufficient opportunity to prepare his defence, (e) To give evidence, personally or through witnesses, and make oral submissions. A court of law must hear both sides in case on all material issues and ensure that justice is not only done, but manifestly seen to the done, see Ceekay Traders V. Gen. Motors Co. Ltd (supra); Alsthom S.A. V. Saraki (supra); Ndukauba V. Kolomo (supra); Ekpeto V. Wanegho (2004) 18 NWLR (Pt. 905) 394; Ikweki V. Ebele (2005) 11 NWLR (Pt. 936) 397; Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427; Newswatch Cornm. Ltd. V. Atta NWLR (Pi. 993) 144; Agbiti V. Nigeria Navy (2011) 4 NWLR (Pi. 1236) 175."PerOGBUINYA, J.C.A.(Pp. 61-62,paras. A-A)
32. It is further submitted that in diga V. tony (2013) LPELR-20768(CA), the Court in this regard held as follows:
"Fair hearing does not entail physical hearing alone; it also entails and is satisfied where all reasonable opportunity has been afforded a litigant for the presentation of his case. See the cases of EGWUCHE v. BENUE STATE CIVIL SERVICE COMMISSION AND 3 ORS. CA/J/169/2006 DELIVERED 25TH FEBRUARY 2013. If a litigant seized of the date for the hearing of his case abstains or does not send a representative and his absence is otherwise nor excused by the adjudicating Tribunal or court he cannot be heard to complain" PER DANJUMA, J.C.A. (Pp. 30-31, Paras. G~B) Emphasis ours.
33. It is the submission of counsel that in the same vein, where an employee as in this case the Claimant fails to take advantage of the opportunity presented by an employer, he cannot be heard to complain. Counsel urged the court to so hold.
34. In any event, it is also our position that the Claimant did not dispute the fact that the Defendant conformed to the procedure in the Bank's Policy. It is submitted that parties are bound by their pleadings. Since by the Claimant's pleadings, the issue of failure to comply with the contract of employment was not canvassed, counsel urged the court to hold that the Defendant's position on this point is uncontroverted and ought to be acted on. in muomah V. enterprise bank ltd (2015) LPELR-24832(CA), the Court in recognition of the above position held that:
‘’The legal position of uncontroverted evidence is settled, see OGUNYADE V OSHUNKEYE (2007) 15 NWLR (Pt 1057) 218 where the Supreme Court held thus: "The law in my view is settled that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. ODULAJA V HADDAD (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJIBELLO AFOLABI (1978) 2 SC 79. Unchallenged sand uncontradicted evidence ought to be accepted by the court as establishing the facts therein contained." See also NZERIBE VDANE ENG. CO. LTD. (1994) 8 NWLR 124. EBEINWE V THE TATE (2011) 7 NWLR 402 and OKIKE V L.P.D.C. (2005) 15 NWLR (Pi, 949) 471." Per NIMPAR, J.C.A. (P. 21, paras. B-G).
35. On the position of the claimant that the dismissal which occurred while the claimant was standing trial is unlawful, as the matter was subjudiced. It is submission of counsel that the position of the claimant is unfounded in law and cannot be sustained. The law is settled that a disciplinary committee constituted by an employer is not required to await the outcome of a criminal action in Court before proceeding with its internal disciplinary process. On this submission counsel relied on the case of P.C mike eze V spring bank plc. (2011) LPELR-2892(SC), where the Supreme Court held that; except where a contract of employment clearly states otherwise, the master who sees that the actions of the servant is based on fraudulent or dishonest acts can summarily dismiss him without waiting to report to the police and wait for the conclusion of a subsequent criminal trial. Reliance was also placed on the case of Uba V musa (2006) CA/J/165/2006, where the Court stated thus:
‘’In cases of misconduct bordering on criminality, what is required of an employer before summarily dismissing an employee is lo give him a fair hearing by confronting him with the accusation made against him and calling upon him to defend himself.
36. Further reliance was placed on the case of ajuzi V first bank of nig plc.- (2016) lpelr- 40459 (ca), the Court held that
"Perhaps, in answer to the claim of the appellant in this connection, it may be necessary to refer to the decision of the Supreme court on the issue in the case of Olanrewaju v Afribank, the court said as follows:-'It is not necessary nor is it a requirement under Section 33 of the 1979 constitution that before an employer summarily dismissed his employee, he must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. Per OHO JCA (P36, para c-f)."
37. According to counsel in the instant case, the Defendant was well within their rights to set up a Disciplinary Committee in line with its Policies which the Claimant was bound by upon signing the contract of employment. The Defendant took steps to invite the Claimant to a properly constituted panel in line with their disciplinary policies whilst the Claimant repeatedly and deliberately refused to heed to the invitation of the Bank. As the law is settled that a criminal action has no bearing to the disciplinary procedure which is a contractual right enduring to the Defendant, the Claimant cannot therefore shift the consequence of his willful refusal to attend the disciplinary sitting to the Defendant. Counsel urged the court to so hold.
38. In addition, a question was put to the Claimant under cross examination regarding the invitation to the Disciplinary Committee sent to him by the Defendant, which the Claimant admitted receiving. CW1 also made the following admissions during cross examination:
Ø That he understands the implications of failure to attend a Disciplinary Committee.
Ø That he was informed of the misconduct for which he was invited to the Disciplinary Committee
Ø That he was informed of the rights available to him at the Disciplinary Committee which include right to give evidence and call witnesses
Ø That he did not attend the Disciplinary Committee.
Ø That he received a second opportunity to attend the Disciplinary Committee wherein he was educated on the position of the law on internal disciplinary procedures vis a vis criminal trial but he still failed to honour the invitation.
39. It is submitted that the above evidence elicited from the Claimant under cross examination established that the Claimant was at all times material to this Suit, aware of the implications of the willful refusal to avail himself of the opportunity for fair hearing provided by the Defendant. The law is trite that facts admitted need no further proof. We refer to ajibade V. state (2012) LPELR-15531(Sc) where the Supreme Court held that:
"The law is also well settled that facts admitted need no further proof. See the case of Emeka v. State 7, NSCQR 582 and also Amala V. State (2004) 6 SCM55AT 67."PER OGUNBIYI, J.S.C. (P.23, Paras. F-G).
40. Having given the Claimant repeated opportunities, the- Defendant via Exhibit Hl-2 further communicated its findings to the Claimant to the effect that he was found to be in breach of the Defendant's policies and procedures, a position already supported by exhibit dwf.
41. It is submitted that the above judicial decisions invalidate the Claimant's contention that both the disciplinary process and the Court action cannot proceed concurrently and as such, any relief emanating from this erroneous position is bound to fail. We urge the Court to so hold.
42. On the whole, counsel urged the Court to dismiss the reliefs of the Claimant.
ON whether this honourable court can grant other reliefs as presently contained in the claimant's complaint.
43. It is the Defendant's contention that other reliefs sought by Claimant are consequential in nature, as the success or otherwise of those reliefs are predicated on the success of the Declarative relief sought by the Claimant in its relief 1. The Defendant states further that these reliefs are consequential, because they draw from the declaratory relief and cannot stand on their own. Therefore, the said reliefs must suffer the same fate with the declaratory relief sought by the Claimant, which is dismissal. The Defendant places reliance on the Supreme Court's decision in the case of chief ikechi emenike vs. PDF  LPELR-7802 (SC) where the apex Court per J.A. FabiyiJSC, held as follows:
"I need to state it clearly at this point that since the appellant claimed seven (7) declaratory reliefs, the law places a legal burden on him to establish his claim. His three (3) iniunctiue reliefs are predicted on the success of the declaratory reliefs. To that extent, they are consequential reliefs." Underline ours.
44. It is submitted that the Defendant had earlier argued that the Claimant has not discharged the burden placed on him to entitle him to the declaratory relief sought. Therefore, since the Claimant is unable to prove that he was unlawfully dismissed from his employment, all other reliefs must also fail as there will be no basis upon which the Court can grant same. Counsel urged the court to so hold and dismiss the Claims of the Claimant.
45. In the unlikely event that this Honourable Court holds that the other reliefs are independent of the declaratory relief sought in relief A, the Defendant will now proceed to address each relief.
46. on relief B. the Defendant submits that the Claimant is not entitled to this relief. Assuming although this is not the case that the Claimant was unlawfully dismissed from the Defendant's employ, it is again settled that the relief of recall or reinstatement is unavailable under a Master Servant relationship. In odibo V. first bank (2018) lpelr- 46628(CA), the Court of Appeal in consideration of the above position has held that:
"In law, an employment founded on master-servant relationship for personal service without any statutory flavor does not enjoy the relief of reinstatement. The Courts are thus very reluctant and in fact lack the competence to force a willing servant upon an unwilling master in a contract of employment for personal service without statutory flavor, see UBNLtd V. Ogboh (1995) 2 NWLR (Pt. 380) 647. The above appears to me to be the precarious position the Appellant had found himself in his employment relationship with the Respondent and there seems to be no reasons whatsoever far the Court below to have held otherwise and contrary to the settled position of the law as applicable to the circumstances in which the Appellant, who had been in the employment of the Respondent from 1987 until 1999 when he was dismissed, had found himself in this appeal." Per GEORGEWILL, J.C.A. (Pp. 24-25, Paras. D-B).
47. Reliance was also placed on the case of ubn ltd V. okenwa (1994) LPELR-23178(CA) where it was held that:
"The law is clear that in an ordinary master and servant relationship when no public law element is involved specific performance of a contract of service cannot be ordered should an employer terminate the contract of service in breach of its terms. The law has been well stated by Lord Reed in Ridge v. Baldwin (1963) 3 All ER 66, 71 as follows: "The law regarding master and servant is not in doubt" These cannot be specific performance of a service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend or whether the master heard the servant in his own defence it depends on whether the facts emerging at the trial prove breach of contract. "View in similar vein were expressed by Viscourt Kilmuir LC in Vine v. National Dock. Labour Board (1957) AC 488, 500 as follows: "... if the master wrongfully dismisses the servant either summarily or by giving insufficient notice the employment is effectively terminated albeit in breach of contract. " In that case Lord Keith of Avonholn said at p. 507; "Normally, and apart from the intervention of statute there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages." This sound principle of the common law has been received into our law by several authorities of which Olaniyan v. University of Lagos (1985) 2 NWLR 599 is among the most recent. The learned judge in purporting to apply the case of Shitta-Bey v. The Federal Civil Service Commission (1961) 1 SC 40 somehow overlooked the, vital distinction that in Shitta-Bey's case there was a status which makes (the appellant's) relationship with the respondent and the Government although one of master and servant and servant certainly beyond the ordinary or mere master and servant relationship." I feel no hesitation holding that the learned judge should not have ordered a reinstatement of the respondent in this case." Per AYOOLA, J.C.A. (Pp. 10-11, paras.
48. It is submitted that the Claimant cannot be recalled as an employee of the Defendant, more so, over a purported allegation of unlawful dismissal which he has failed to prove. This is also in keeping with the principle that the Court cannot impose an employee on an unwilling employer and that an employee who acted against the interest if his employer cannot be reinstated. Counsel refers to the case of ziideeh V. rivers state civil service commission (2007) lpelr-3544(SC), where the Supreme Court held that:
'This is settled that a court cannot impose or foist an employee on an unwilling employer. See Union Bank of Nigeria Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 664; (1995) 2 SCNJ 1; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303 at 318; (1992) 11-12 SCNJ 121 and Chukwumah v. Shell Petroleum Development Co. of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512 at 560; (1993) 5 SCNJ 1." Per Ogbuagu, JSC.(P.27,paras. E-G).
49. Counsel also relied on the case of fbn plc V. bam (2010) LPELR-4160(CA) where the Court held thus:
"The law is trite that a court will not order reinstatement of an employee whose conduct has been detrimental to the interest of his employer, see Ajayi vs. Texaco Ltd (1987) 3 NWLR (pt.62) 577."Per AKEJU, J.C.A.(P.22, Paras. B-C). Counsel urged the Court to so hold.
50. on reliefs C-F: The Claimant has by these reliefs sought his salaries and emoluments from the point he was dismissed till the institution of this Sui.
51. It is submitted that the Claimant is laboring under a misconception as it relates to the reliefs available in an action for wrongful dismissal under a Master Servant relationship.it is trite law that in an action for wrongful dismissal under a master servant relationship, the Claimant's remedy in the event that he establishes wrongful dismissal lies only in damages.
52. Accordingly, the Claimant cannot be reinstated neither can he be entitled to salaries or other entitlements from any period after he was dismissed. This is clearly because dismissal under a master servant relationship cannot be null and void as to render its effects nugatory. Rather, the dismissal takes effect from the date same was communicated to the Claimant, in this case from March 23, 2015 and the Claimant in this regard can only be compensated in damages if it is found that the Defendant did not follow the procedure stipulated in the conditions of service or that the rules of fair hearing have been breached. On this submission counsel relied on the case of U.T.C. nigeria ltd. V. peters (2009) lpelr- 8426(CA) where it was held that:
"The remedy for unlawful dismissal in ordinary master/servant relationship is not foisting the servant on an unwilling servant. The remedy lies only in damages. ISIEVWORE v. NEPA (2002) FWLR (pt.124) 398; IMOLOAME v. WAEC (1992) 9 NWLR (pt.265) 303." Per EKO, J.C.A (P. 47, paras. A-C).\
53. Counsel also relied on the case of TEXACO & co nigeria plc V. kehinde (2000) LPELR-I0000(CA) where the Court held that:
"It is trite law that you cannot talk of special damages in a case of wrongful dismissal which is founded on the law of contract. Special damage relates to action on torts. It follows therefore that the measures of damages in action for wrongful dismissal is founded on the law of contract. It is aimed at putting the injured party at the position he would have been but for the breach. A termination of a contract of service, whether lawful or unlawful brings to an end the relationship of master and servant. In the present case the trial Judge awarded to the respondent, his salaries and other entitlements from the time of termination to judgment. The law is very clear on the point that a servant would only be paid for the period he served his master and if he is dismissed, as in this case, all he gets as damages is the amount he would have earned if his appointment had been properly determined. That is the servant is to be paid his salaries and entitlement up to the date of his dismissal. Thereafter he is to be paid a month's, two months, three months salary and other entitlements in lieu of notice, depending on the term and conditions of service between the parties. Where no period of notice is stipulated or agreed upon by the parties then the law stipulates that he be given reasonable notice. It is very important to re-emphasise the point that in a purely master and servant relationship, as in this case, which is devoid of statutory-flavour and in which the said relationship is purely contractual, termination or dismissal of an employee by the employer cannot be said to be wrongful unless it is proved to be in breach of the terms and conditions of the contract between the parties." Per ONNOGHEN, J.C.A. (Pp. 37-38, paras. C-D) Emphasis ours.
54. According to counsel, it is on record that the claimant ceased to be in the employ of the defendant from March 2015 and his salaries were fully paid up prior to his dismissal. Having not rendered any services to the Defendant after March 2015, he cannot validly claim salaries for services not rendered. Counsel refers to the case of nwafor V. anambra state education commission St ors (2017) LPELR-42026(CA) where the court held that:
"An employee is entitled to wages and salaries/allowances during the period of his or her lawful engagement in service. No employer is under any obligation to pay salaries/wages/allowances to an employee who has not worked for the period of his employment. For example, a dismissed employee can only claim emoluments he had worked for in the course of his employment. See Olatunbosun vs. NISER (1988) 3 NWLR (Pi. 80) 25 at 55-56 and N.M.B. vs. Adewunmi (1972) 11 SC 111 at 117.
55. It is submitted from the above, the Claimant's claim for salaries and entitlements from March 23, 2015 which was when his dismissal became effective till date lacks any factual or legal basis and cannot therefore be granted. Counsel urged the Court to so hold.
56. on relief G, the Claimant has sought damages in the sum of N250, 000. 000 for wrongful termination of his employment.
57. It is the position of the defendant that general damages flow from a recognized breach which has been occasioned to the Claimant. The law is settled that the object of the award of general damages is to put the Claimant in the position he would have been, if the contract was rightly performed. In support of this contention counsel relied on the cases of gari v. seirafina (Nio.) ltd. (2008) 2 NWLR (PT. 1070) 1 at P. 22, para. C, afolabi V. ola (2016) LPELR-40186(CA).
58. It is submitted that general damages are only awarded where there is a breach. It follows that a Claimant like the Claimant in this instant case, who has not established breach of contract, cannot be entitled to damages.
59. on relief H: 10% post judgment interest until the judgement is FULLY LIQUIDATED
60. It is submitted that the Claimant is not entitled to this relief. This is because post judgment interest is an ancillary relief which has to be predicated on the main. Given the Claimant's failure to prove his main claim, he cannot thus be entitled to the post judgment interest as sought. Specifically, on the principles guiding post judgment interest, the Court in ashaka V. nwachukwu (2013) LPELR-20272(CA) has held that:
"Post judgment interest is one which is awardable after the delivery of judgment by the Court. It is at times provided by Rules of Court. For instance this Court, in a number of decided cases, has had held that a Court of law can award post judgment interest that is provided by the various Rules of Courts. For instance in Lamurde Local Government V. Kaka (2010) 10 NWLR Pi. 1203 p. 574 @ 583, this Court held that by Order 40 Rule 7 of the then Gongola State High Court (Civil procedure) Rules 1987, the Court can make an order for the payment of interest after judgment not exceeding 10% per cent. In Assam V. D.E.F.S. Ltd. (2007) 16 NWLR pt. 1060p. 234 @242 this court also held that a Court of law can award interest after the delivery of judgment not exceeding 10% per cent. In NIPOST V. I.E. Co. Ltd. (2008) 8 NWLR Pt. 983 p. 435 (a 459, it was held that the Court can award interest after judgment not exceeding 5% per cent. The provisions in the plateau State High Court (Civil Procedure) Rules 1987 are not dissimilar to the provisions in the Rules applied by the Courts in the cases referred to supra. Order 40 Rule 7 of the Plateau State High Court (Civil procedure) Rules 1997. Provides as follows: "The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten percent per annum to be paid upon ant judgment, commencing from the date therefor afterwards, as the case may he." PER BDLIYA J.C.A. (Pp. 66-68. Paras. G-A.
61. As the Claimant is not entitled to the principal reliefs sought, the issue of post judgment interest does not arise. Counsel urged the Court to so hold.
62. on relief I: cost of this suit.
63. It is trite that award of cost is discretionary. However, the party seeking an award of cost must place cogent fact before the Court to enable the Court award the cost in its favour. akinbobola Vs plisson Fisco nigeria ltd (1991) 1 NWLR (PT.167) 270. In claiming an award of cost, the party claiming can either incorporate it as a relief, as done by the Claimant in this instant suit, or make it orally in open court as a consequential relief. When it is made a specific relief as done by the Claimant in this case, it must be specifically pleaded and proved.
64. In the case of hadejia jama'are river basin development authority V. chimande (NiG) ltd citation: (2016) LPELR-40202, the Court of Appeal held thus:
"Now, cost can be claimed in either of two ways - (i) as a specific relief on the writ of summons; or (ii) orally in open Court, as a consequential relief, after the' conclusion of the case and entry of judgment. Where cost is claimed as a specific relief on the writ of summons and in a particular sum, it is in the nature of specific damages that must be specifically pleaded and proved - Divine Ideas Ltd Vs Umoru (20O7) All FWLR (Pt.380) 1468, Fortune International Bank Pic Vs City Express Bank Ltd (2012) 14 NWLR (Pt.1319) 86..."
65. It is submitted that a careful perusal of the Claimants Claim as well as the Complaint, there is nowhere in the whole gamut of these documents, (forming the totality of the Claimant's case), was the issue of cost pleaded. A thorough examination of the record of proceedings in this Suit also reveals that no evidence or proof was proffered by the Claimant in support of his claim for the award of cost of action. It is trite that a Court cannot grant a claim not proved or supported by evidence. green v. green (1987) 3 NWLR (PT. 61) 480, opia v. ibru (1992) 3 NWLR (pt. 231) 658, abenga v. benue state judicial service commission (2006) 14 NWLR (PT. 1000) 621. It is the submission of the Defendant that the Claimant has again failed woefully to prove or support the relief claimed with any evidence. Therefore, the Defendant urges this Honourable Court to dismiss this relief and order that parties should bear their respective costs.
66.In concluding his submission, counsel urged the court to dismiss the claim of the claimant as the reliefs of the Claimant which by their very nature and the peculiar circumstances of this case, cannot be granted and/or sustained at law.
THE SUBMISSION OF THE CLAIMANT.
67.The claimant raised three issues for determination, they are:-
1. Whether the claimant has been indicted in the fraud allegation to warrant his dismissal by the defendant
2. Whether the defendant has complied with terms of employment before dismissing the claimant.
3. Whether the claimant has proved his case before this court so as to be entitled to the reliefs sought.
68. Issue one: "Whether the claimant has been indicated in the fraud allegation to his dismissal by the defendant"
69. In arguing issue one Lawence alibi, Esq; counsel for the claimant submitted that the claimant was not indicated by the forensic investigation report and the criminal case instituted against the claimant. The allegation that the claimant compromised his password for the perpetuation of the fraud was not proved, it is the law that whosoever assert must proof I refer this honourable court to the provision of Section 136 of the evidence Act.
"the burden of proof as to any particular facts lies on that person who wishes the court to believe in its existence, unless it is provided by the any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other."
70. Counsel urged the court to hold that the burden of proving this allegation lies on the defendant. In support of this contention counsel relied on the case of IWOK V. UNIVERSITY. UYO (2011) (NWLR) (PT. 1243) 21.
71. It is further submitted that the assertion and futile effort by the defendant to rope in the claimant's mechanic who came and work on his car was
unsuccessful because the mechanic did not enter inside the bank
premises and the Defendant's witness DW who testified for the
defendant admitted under cross examination that the staff of the bank
usually closes by 6pm. He also categorically stated that they do not allow people to enter into the banking hall after close of work which is 6pm. In paragraph 4 of page 3 of exhibit DWF which is the investigation report by the defendant, it was clearly stated that the CCTV did not provide proper cover for the area where the said car was parked and the assertion by the claimant that his mechanic did not enter the banking hall premises was not denied, it is the law that an undenied fact is deemed admitted. Section 123 Evidence Act.
"no fact needs to be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleadings in force at the time they deemed to have admitted by their pleadings;
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
72. Counsel refers to the case of Chukwuemeka Anagor v EFAB Properties Ltd. Where it was held that a piece of evidence is said to be uncontroverted, un- impeached and unchallenged when the opposing party led no credible evidence to the contrary or discredited same as untruth under the heat of cross-examination.
73. Similarly the Court in Mr Florence Chioma Nwokolo V Mrs. Patricia Chizobu Nwokolo (2013) LPELR 45835 states:
"A piece of evidence is said to be uncontroverted, un-impeached and unchallenged when the opposing party led no credible evidence to the contrary or discredited same as untruth under the heat of cross examination. In other words, where the evidence of a party is un-rebutted by the adverse party, such evidence is said to be uncontroverted. It does not mean that the adverse party led no evidence at all. It does mean that the evidence led by the adverse party was not credible enough to impeach the truthfulness of the said evidence. And it is trite law that when a piece of evidence is uncontroverted, the Court can act on same.
74. Counsel further refers to the cases of: MUSA & ORS. V YERIMA & ANOR.(1997) 7 NWLR (PT. 511) 27 @ 41 - 42; ADELEKE & ORS.V IYANDA & ORS. (2001) 13 NWLR (PT. 729) 1 @ 22 - 23; USMAN V ABUBAKAR (2001) 12 NWLR (PT. 728) 685 @ 706.
75. It is submitted that the defendant's witness who was also the bank Manager agreed under cross examination that once your Laptop is disconnect from the office right socket it cannot work which means that the claimant who close from office at 6pm as stated in page 2 of exhibit DWF CCTV cannot be the one who authorized the said fraudulent posting which was purportedly done between 7pm and 8:55pm that same date.
76. Counsel argued that l-Concept 4 which suppose to send alert for posting of transaction did not work on the day of the incident this was also expressing stated in page 2 of exhibit DWF.
77.It is further submitted that the recommendation of the defendant via exhibit DWF that the claimant's should be prosecuted propelled institution of criminal proceeding with CR/45/14 which took place at the Chief Magistrate Court of Federal Capital Territory Holden at Wuse Zone 6, Abuja before Chief Magistrate Josephine Enobie (Mrs.) where the claimant was tried with the offence of conspiracy, criminal breach of trust by servant and thief by servant contrary to sections 97, 34 and 289 of the penal code. The defendant called three witnesses who testified and gave evidence before the court upon the testimony and evidences presented to the court by the defendant.
78. The court rule that
"since all the evidence before the court both the oral evidence as well as the documentary evidence cannot show the link or any nexus between the defendant and the 14 beneficiaries, the court have no option but to resolve all the doubts in the court's mind in favour of the defendant especially as the prosecution have failed to prove that the defendants actually took the money in question or even prove that the money was converted to their personal use or anyone connected to them, this court will not bother to charge the defendants as the court hereby uphold the submission of the counsels to the two defendants and the defendants are hereby DISCHARGED AND AQUITTED"
79. It is submitted that a court of competent jurisdiction did not indict the claimant and as such his dismissal by the defendant based on same allegation is wrongful, unwarranted and mischievous. Counsel urged the court to so hold.
80. Issue two; "Whether the defendant has complied with the terms of employment before dismissing the claimant".
81. In arguing this issue counsel submitted that the claimant who testified in person clearly stated in his testimony that he has never receive any query or suspension throughout the period of about 9years of his service with the defendant. The Defendant's witness under cross examination also agreed through the record of service of about 9 years of the claimant with the defendant there was no query issued to the claimant and he was never suspended for any offence at all, rather, he won 2 different awards and was promoted 3 times for diligence and hard working. It is our humble submission therefore that an employee deserves notice of query and right of fair hearing before dismissal.
82. Counsel submitted that it is trite law that employment with a statutory backing must be terminated in the way and manner prescribed by that other manner of termination inconsistent with the relevant statute is null and void and of no effect. Similarly in private employment, an employer cannot terminate the employment or summarily dismiss his employee without giving him opportunity of fair hearing. Counsel relied on the case of USMAN V ABUBAKAR (2001) 12 NWLR (PT. 728) 685 @ 706, where it was stated, thus”
"Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer need establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say that the rules of Natura! justice were not breached". It is our humble submission that, in the instant case the employer that is the Defendant herein has failed and refused to give the Claimant fair hearing and flagrantly breached the Rules of Natural Justice and counsel urged the court to so hold.
83. According to counsel to equate the commission of criminal offence with mere misconduct or gross misconduct will amount to a mere sophistry, even though there are instances where it may not be easy to differentiate one from another. They are entirely two different things and they carry different legal implications for the employee, depending on the employers approach to such issues. Where there are allegations of the commission of criminal offence against a person, which has also been denied by the accused person, the person or authority making the accusation must satisfy the constitutional requirement by establishing the guilt of the accused person according to the provisions of the law and the Defendant herein has woefully failed to do so.
84. Counsel insisted that there was a need to establish the guilt of an erring employee in a competent court or judicial tribunal before his/her dismissal can be valid. The position of law on the need to first prove the guilt of an accused is enumerated in plethora of judicial decisions. Like in the case of Mr. Emeka Onyema v. Diamond Bank (supra), where the Supreme Court was of the opinion that when there is misconduct bothering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. It is submitted that this requirements has not been met.
85. It is the submission of counsel that when an allegation of crime has been denied by an employee, the burden will then shift to the accuser to prove beyond reasonable doubt that the crime has been committed. The Supreme Court reinforced this position in a popular case of Dingi Mohammed v. State (2018) 5 NWLR (Pt. 1613) P.540.
86. According to counsel in the case at hand the claimant was actually tried of the allegation and the court discharged and acquitted the claimant on the ground that a prima facie case has not been established against the Plaintiff.
87. Counsel contended that the only correspondence sent to the claimant's was an invitation which is Exhibit DWB & exhibit DWC It is submitted that the claimant was attending criminal proceedings as at the time Exhibit DWB & exhibit DWC were written to him and it is trite under our law that an accused or defendant must always be present in court during a criminal trials. Counsel submitted that in the case of Dingi Mohammed v. State (2018) supra the Supreme Court cited Section 259 (1) of the Criminal Procedure Code and states as follows:-
"259 (1) The court at any stage of the trial where there are several accused may by order in writing stating the reasons therefore stay the proceedings of the joint trial and may continue the proceedings against each or any of the accused separately."
88. On Legality of trial in absentia: It is our humble submission that trial in absentia is a procedure unknown to Nigeria procedural law. It is obviously a negation of fair trial. In the case of Dingi Mohammed v State (supra) the Supreme Court held "trial of the accused person in his absence is a sham". In the instant case, the appellant was not tried with the 2nd accused who was said to have absconded. Hence there was no breach of section 259 of the Criminal Procedure Code as contended by the appellant. The trial was properly conducted without the 2nd accused and it was not a nullity. Chief of Air Staff V. lyen (2005) 6 NWLR (Pt. 922) 496; Ochu v. F.R.N. (2011) All FWLR (Pt. 563) 2008 referred to.] (P. 572, paras.C-F)
89. it is further submitted on the Right of accused person standing trial to be present in court throughout trial and exceptions thereto. It is submitted that it is a fundamental principle of fair hearing that an accused person standing trial for a criminal offence has to be present in court throughout the period of his trial and a violation of it renders the trial a nullity. The only known exceptions are where the accused misconducts himself at the trial or is of unsound mind and so incapable of making his defence. State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 referred to.] (P. 573, paras.C-E).
90. counsel insisted that claimant was served exhibit, F1-2, Advice to attend a disciplining enquiry, requesting him to come to Lagos, when as at then, he was attending to criminal proceeding instituted against him in Abuja. When it is an essential principle of Criminal Law and Procedure in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused and for such purpose; trial means the whole of the proceedings including the judgment and sentence. The only exception is where the violent tendencies of an accused person may necessitate the keeping him out of court in the interest of public safety for peaceful conduct of the trial. On this submission counsel relied on the case of State v. Lawal (supra).
91. Counsel also submitted the court in the case of Mr. Emeka Onyema v. Diamond Bank Plc. Where the Defendant failed to establish the commission of the offence of gross misconduct for which the Claimant was punished, but only claims that the employment of the Claimant was terminated, the Defendant further failed to discharge the onus which lies on him to establish the cause or reason at the trial and to the satisfaction of the court. The court held that the dismissal of the Plaintiff in this case, illegal and that the Defendant lacks the capacity to dismiss the Claimant without fair hearing, and being dismissed amounts to double jeopardy. Counsel urged the court to hold that the dismissal of the claimant without fair hearing negated and violated the principle of Natural justice and fair hearing has enshrined in Sec 35 of 1999 constitution as amended.
92. Issue three; "Whether the claimant has proved his case before the court so as to be entitled to the reliefs sought." Counsel answer the poser in the affirmative, the claimant in his testimony before this court is as stated in the statement on oath dated the 26th day of April 2018 and additional statement on oath on the 3rd of April 2019 which is before this Court, the claimant evidence was never contradicted or controverted. Counsel refers to the case of Nwokolo v. Nwokolo (2018) LPELR-45035 (CA), where the court held:
"A piece of evidence is said to be uncontroverted, un-impeached and unchallenged when the opposing party led no credible evidence to the contrary or discredited same as untruth under the heat of cross examination. In other words, where the evidence of a party is un-rebutted by the adverse party, such evidence is said to be uncontroverted. It does not mean that the adverse party led no evidence at all. It does mean that the evidence led by the adverse party was not credible enough to impeach the truthfulness of the said evidence. And it is trite law that when a piece of evidence is uncontroverted, the Court can act on same.
93. Counsel submitted that a trial court has no option than to admit uncontroverted evidence. According to counsel the claimant clearly stated as follows:
"That I was employed by the Defendant as a Teller in the year 2005 via a letter of offer dated February 14, 2005 given to me by the Defendant who was answering Chartered Bank Pic. Then."
"That following my employment by the Defendant in 2005, my appointment was confirmed in the year 2006 by a letter dated May 08, 2006 when the bank was answering IBTC Chartered Bank Pic."
"That I worked diligently and carried out all my assigned duties effectively following which I was promoted continually by the Defendant. I was promoted in the year, 2008, 2009 and 2011 respectively. The promotion letters dated July 15, 2008; December 14, 2009 and April 29, 2011 are all with me."
"That sometime on or about the 5th day of December, 2014 there was a fraud perpetrated at the Gwagwalada, Abuja Branch were I was working following which the matter was changed to court and I was persecuted at the FCT Magistrate Court via Charge No: CR/45/2014."
"That while the criminal matter was still ongoing, the Defendant by letter dated February, 13, 2015 purported to invite me to attend a disciplinary enquiry at the bank's office in Lagos.
"That my Solicitors wrote the Defendant informing the bank that it will not be wise for me to testify in an enquiry over a matter that was already pending in court. That it will be wiser to tarry until the conclusion of the criminal trial so that the case will not be prejudiced. The Acknowledged copy of my Solicitor's letter dated 16th February, 2015 is with me."
"That instead of the Defendant heeding the lawful advice given by my Solicitors, she went ahead and dismissed me without affording me fair hearing as contemplated under the 1999 constitution as amended."
"That I was not afforded any hearing whatsoever by the Dependant who was both the accuser, the prosecutor as well as the judge that found me guilty and purportedly dismissed me while the criminal trial was ongoing."
"That I was called from my branch at Gwagwalada, Abuja to come and pick a letter from head Office and when I arrived I was given a copy of a letter dated 23rd March, 2015 titled: "NOTIFICATION OF DISMISSAL".
"That following my wrongful dismissal, I was not paid my entitlements, no severance was paid to me and my allowances and pension were also withheld."
94. It is the submission of counsel that paragraphs 8 and 9, of the statement on oath of the claimant was admitted by the Defendant, under cross examination, the sole witness for the Defendant agreed that it was during the pendency of the criminal case at Abuja that the Claimant was invited to attend the disciplinary enquiry in Lagos. It is submitted that the invitation was issued Malafide and we urge the court to hold so.
95. It is further submitted that the defendant agreed that the claimant was discharged and acquitted by the trial! Court after evidence had been given by them. This goes to further exonerate the claimant of the unlawful dismissal by the Defendant.
96. The claimant averment that he was not paid his emoluments, and allowances from March 2015, till September 2015 amounted to £42,201,000.00 (Two Million, Two Hundred and One Thousand Naira Only) was not contradicted and it is deemed admitted, counsel urged the court to so hold.
97. The claimant averment that he was not paid his emoluments, and allowances from 1st of September 2015, till September 2016 amounted to N4,402,000.00 (Four Million, Four Hundred and Two Thousand Naira Only) was not contradicted and it is deemed admitted, we urge my Lord to so hold.
98. The claimant averment that he was not paid his emoluments, and allowances from 1 of September 2016, till September 2017 amounted to N4, 402, 000.00 (Four Million, Four Hundred and Two Thousand Naira Only) was not contradicted and it is deemed admitted, we urge my Lord to so hold.
99. The claimant averment that he was not paid his emoluments, and allowances from 1 of September 2017, till September 2018 amounted to N4,, 402, 000.00 (Four Million, Four Hundred and Two Thousand Naira Only) was not contradicted and it is deemed admitted, we urge my Lord to so hold.
100. In proof of the above stated, the Claimant tendered Exhibit J which is a letter from the Defendant showing salary adjustment indicating that the Claimant's pay per annum is N4,402,000.00 (Four Million, Four Hundred and Two Thousand Naira Only). This was admitted as Exhibit J by this Honourable Court and the said Exhibit was not contradicted, counsel urged the court to hold that the Claimant is entitle to the said amount as his salary and his entitlement.
101. The Claimant's discharged and acquittal by the trial Chief Magistrate who found that there was no evidence linking him to the alleged fraud in the bank was also never controverted nor contradicted by the Defendant. That the claimant's salary was not paid for year 2014, during the pendency of the above mention criminal trial.
102. Finally, counsel urged the court to grant the prayers of the claimant in his entirety.
103. I have carefully considered the processes filed in this suit as well as the evidence adduced in proof of the position taken by each of the parties. I have equally examined the written addresses of parties and listened attentively to oral submission of counsel in adumbration.
104. The defendant in the written address filed before the court formulated a sole issue for determination. However, the sole issue was further divided into twin issues for resolution. The claimant on his part has formulated three issues for resolution.
105. In determining an action, the court and the parties are bound by the reliefs or claim before the court and the pleadings of the parties. As the pleadings defines the issues in disputes to be resolved by the court. Eagle Super Pack (Nigeri) Ltd V ACB Plc (2006) 19 NWLR (Pt.1013) 20, APC V John & Ors (2019) LPELR-47003(CA), Ojo Local Government V ELILE & ANOR (2018) LPELR(CA). see
106. The reliefs being sought are of a combination of declarations, special damages and general damages. It is trite that claim before the court is circumscribed by the reliefs being sought by the claimant before the court and the claimant’s duty is to adduce such evidence as will establish his claim and the court’s duty is to ensure that the reliefs established are granted and must not grant what was not claimed. See Gabriel Ativie V Kabel Metal Nigeria Ltd (2008) LPELR-(SC).
107. The counsel for the defendant has in opposing the claim of claimant argued that the claimant has not established entitlement to reliefs being sought from the court, because the claimant was dismissed from service and termination of claimant’s employment. Counsel insisted that the dismissal of the claimant was done in line with extant regulations. The claimant was never denied fair hearing in fact the claimant was given fair hearing opportunity to defendant himself through the invitation extended to him to appear before the disciplinary committee.
108. The claimant on his part stated that sometime on or about 5/12/2014 there was a fraud perpetrated a the Gwagwalada, Abuja branch of the defendant where the claimant works and the matter was charged to court and the claimant was prosecuted at the FCT Chief Magistrate Court via charge No: CR/45/2014. The claimant’s salary for 2014 was not paid for the year 2014 during the pendency of the criminal trial. While the criminal trial was still ongoing, the defendant by the letter dated 13/2/2015 purportedly invited the claimant to attend disciplinary enquiry at bank’s office in Lagos disciplinary enquiry at bank’s office in Lagos. However, the claimant’s solicitor wrote to the defendant informing it that it will not be wise for the claimant to testify in an enquiry over a matter that was already pending in court. That it will be wise to tarry until the conclusion of the criminal trial so that the case will not be prejudiced. The acknowledged copy of the claimant’s solicitor’s letter dated 16/2/2015 is exhibit DWH. It is the case of the defendant that instead of heading to the lawful advice given by the claimant’s solicitors, the defendant went ahead and dismissed the claimant without affording the claimant fair hearing, as contemplated under the Constitution of the Federal Republic of Nigeria, 1999, as amended.
109. The claimant was called from his branch at Gwagwalada, Abuja to come and pick a letter from head office and when he arrived he was given a copy of letter dated 23/3/2015, titled ‘’Notification of dismissal’’ (exhibit H1-2). The claimant stated that following his wrongful dismissal, he was not paid his entitlements, no severance was paid to him, as well as his allowances and pension was also withheld. The claimant was eventually discharged and acquitted on 10/11/2017, as per exhibit I1-9.
110. The facts of this case are plain and straight forward without any ambiguity. The narrow area of dispute is on alleged breach of fair hearing. The claimant’s position is that with the criminal trial hanging on his head the defendant should fold its arms and allowed the trial to be concluded before setting up any disciplinary committee to try him for misconduct.
111. For the defendant there is no breach of fair hearing the claimant was afforded opportunity of hearing but refused to take advantage of the opportunity afforded to him to explain his side of the story.
112. Let me say here that in taking disciplinary action against an employee that may lead to summary dismissal of employee, like in this case more particularly on allegation bordering misconduct, the employer is enjoined by law whether the employment is one that has statutory flavor or that of ordinary master/servant relationship governed by common law, the employee must be given fair hearing. See Zideeh V Rivers State Civil Service Commission (2007) LPELR-3544(SC)
113. In the case at hand the facts as disclosed in the pleading and under cross-examination, the claimant in this case was invited to appear before the disciplinary committee but based on the advice of his counsel, the claimant shunned the disciplinary hearing this was despite the fact that upon receipt of the claimant’s counsel letter stating that the claimant will not honour the invitation, the defendant rescheduled the hearing to another date and advised the claimant to honour the said invitation to appear before the disciplinary hearing on the rescheduled date. Se exhibits F1-2, G1-2, DWG and DWH, The claimant failed and neglected to heed to the advice to honour invitation by appearing before the disciplinary committee. If this scenario does not amount to according the claimant fair hearing I do not know what will satisfy the claimant or what the claimant consider to be giving opportunity for hearing.
114. The claimant’s reliance on the advice of his counsel in his refusal despite all entreaties to appear before disciplinary hearing on the allegations leveled against him in exhibit F1-2 and exhibit DWB is fatal to the interest of the claimant. It is to be noted that counsel’s advice cannot serve as the position of the law, it remained advice until sanctioned by law or affirmed by decision of the court.
115. In his attempt to prove that he has no hand in what he was accused of to warrant facing criminal or disciplinary hearing, it was argued on behalf of the claimant that that the evidence of the defendant’s witness under cross examination had stated that the office of the defendant closes at 6pm and the visitor of the claimant, his mechanic did not enter the office and that the laptop cannot work once taken outside the banking hall is not conclusive enough to exculpate the claimant. The reason being that the defendant’s witness is not an expert, therefore, whatever evidence he gives is either figment of his imagination or speculation or guess work, which cannot be relied on in law.
116. I am strengthened in taking this position considering the entire evidence surrounding the circumstances. It is not in dispute that a fraud did take place on 4/12/2014, where certain amounts of money from the accounts of two customers of the defendant Rain Oil and Pabod Breweries Ltd, were transferred to some other accounts and the fraud was traced to have been perpetrated or carried out using ID belonging to the claimant’s official laptop, this goes to prove that the evidence showing that the transaction cannot be done outside banking hall with the claimant’s laptop does not have good footing or legs to stand on.
117. There is evidence that as at the time the incident occurred, it was around 7pm when the bank had been closed and there was no body in the banking hall. This has proved that the claimant’s laptop can be used to conduct transaction even when the laptop was not in the banking hall. The claimant’s clinging to the assertion that the laptop cannot work outside banking hall goes to nothing since there is no expert evidence establishing the assertion. This is because it is a fact of common knowledge which requires no proof. Furthermore, nowadays transaction can be done remotely using electronic devices such as mobile phones, laptops, desktops can be done remotely.
118. Let me here say that there is no law that confers immunity on employee from being disciplined simply because the employee is hardworking or has not suspended or been issued with a query. Once an employee is found to be on the wrong side of the law or found wanting or when he decides to violate the extant regulation, the employee has rendered himself/herself liable to be tried for misconduct in line with the disciplinary processes of the employer.
119. The claimant in his effort to prove absence or denial of fair hearing relied heavily on the letter of his counsel written to the defendant to the effect that because he is standing trial he cannot attend any enquiry until after the criminal matter is finally determined by the magistrate court. See exhibit G1-2 and exhibit DWH. This is because according to claimant he must always be present in court during a criminal trial, this assertion without more is not enough a reason in this case. The claimant, who wants avail himself with attendance or appearing in court for criminal trial, must show or prove that the charges or criminal case at the Magistrate court against him was heard on day to day basis till conclusion. The claimant in the case at hand has also not shown that the date he was to appear before the defendant’s disciplinary Committee coincides with the dates of his attending to his criminal trial.
120. The claimant also made heavy whether on the discharge and acquittal of the claimant as per exhibit F1-9, as a proof of his innocent on the allegations leveled against him. Let me make it very clear that the mere fact that a court of law has discharged and acquitted claimant of a criminal charge, cannot serve to bar employer from taking disciplinary action respecting the facts. See Arinze V FBN Ltd (2004) 12 NWLR (Pt.888) 663.
121. Under common law all that the defendant needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which employee is being dismissed involves accusation of crime. It is not requirement of the law that the employee must be tried before a court of law, in so far as the accusation against the employee is for gross misconduct. To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to enable him make representation in his own defence. All that will suffice is for the complaint as formulated conveys to the claimant the nature of the accusation against him. See Yusuf V Union Bank (1995) 7 NWLR (Pt.408) 448, CCB Nig. Ltd V Nwankwo
122. In the case at hand exhibit F1-2, which is same with exhibit DWG, tendered by the defendant, conveyed to the claimant catalogue of misconduct to which the claimant is being invited to appear before the disciplinary enquiry set up by the defendant regarding loss of funds by the defendant belonging to the two customers of the defendant i.e Rain Oil Ltd and Pabod Breweries Ltd. Vide exhibit G1-2 tendered by the claimant which is same with exhibit DWH tendered by the defendant, the counsel for the claimant categorically informed the defendant that the claimant having been arraigned before the Magistrate Court to face criminal charges regarding the subject matter of enquiry by the defendant, the claimant had been advised that the matter is subjudice and that it will be unlawful for the claimant to attend the enquiry. in the circumstance, the claimant will not honour the invitation to attend the enquiry. vide exhibit CWE and exhibit DWB, the defendant wrote a reply to the claimant’s solicitor stating that it will be erroneous to assume that the disciplinary enquiry, but based on misconduct. Consequently, the date for the enquiry was rescheduled from 17/2/2015 to 17/3/2015. However, the refusal of the claimant to honour the invitation led to issuance of exhibit H1-2, a letter notifying claimant of his dismissal from service of the defendant with effect from 23/3/2015.
123. It is clear from the above evidence that the claimant was notified of the allegation leveled against him and he was afforded opportunity to defend himself, but he chose to go by the advice of his counsel not to honour the invitation to appear before the disciplinary enquiry. The refusal of the claimant to honour the invitation to appear before disciplinary enquiry goes to show that the claimant has no answers to the accusations contained in the letter of invitation. Therefore, the claimant cannot be heard to be complaining of lack of fair hearing. He was given opportunity to react but rejected it, the claimant should therefore, bear the brunt of his action and not to blame the defendant for the situation he found himself in.
124. The claimant and his counsel were wrong to insist of first facing criminal trial before appearing before a disciplinary. The law is now well settled that an employer has the right to discipline his employee for misconduct notwithstanding any criminal allegation. The employer cannot be made to wait until the employee is dealt with in a criminal trial. See Ansambe V Bank of the North Limited (2005) 8 NWLR (Pt.928) 650.
125. The law is trite as authorities on this issue are generally agreed that that employee can be tried for misconduct the disciplinary enquiry is not in connection with the employer may terminate or dismiss the employee involved in gross misconduct as in this case amounting to crime without waiting for a criminal trial to be concluded. See Salihu V Fougerolle (Nig.) Plc (2000) 7 NWLR (Pt.818) 1, A.T.A. Poly V Maina (2005) 10 NWLR (Pt.934) 487.
126. The supreme court has affirmed that now employer need not to await conviction in a criminal allegation before determining the employment of an employee as decided in Arinze V FBN Ltd (2004) 12 NWLR (Pt.888) 663, Olarenwaju V Afribank (Nig.) Ltd (2001) 13 NWLR (Pt. 731) 691, SC, Zideeh V RSCSC ((2007) LPELR-3544(SC), (2007) 3 NWLR (Pt.1022) 554, (2007) 1-2 SC 1. See also Court of Appeal decisions in Egbe V NUT (2008) 5 NWLR (Pt.1081) 604, UBN V Chinyere (2010) 10 NWLR (Pt.1203) 453 CA, AG, Kwara State V Ojulari (2007) 1 NWLR (Pt.1016) 551 CA and Jubril V Mil. Administrator, Kwara State (2007) 3 NWLR (Pt.1021) 357.
127. The above analysis of the pleadings and evidence before the court clearly shows that the clamant has woefully failed to establish that he was denied fair hearing, if there is any denial of far hearing it was the claimant himself that denied himself far hearing by his rejection of the opportunity afforded to him to state his own side of the story. Therefore, the dismissal of the claimant from service did not infringe on the claimant’s right nor has been done in contravention of any law. I found the dismissal properly done.
128. There is no law preventing or prohibiting taking of disciplinary action against an employee. The law has long been settled that an employee has the right to take disciplinary action against its employee notwithstanding that the employee is standing trial for criminal offence. The discharge and acquittal of the claimant cannot prevent or render disciplinary action illegal or unlawful.
129. I have deeply considered the submissions of counsel for both sides on the status of the claimant and the applicable terms and conditions of service governing the claimant’s employment. The law is well settled that except in employment governed by statute wherein the procedure for employment and discipline including dismissal of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent therewith, is null and void and of no effect. But in other cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master even where the master's behaviour is wrong.
130. In the case at hand having found the claimants dismissal to be in order, the claimant is not entitled to any of the reliefs being sought. In the circumstances, the termination of claimant’s appointment is valid having been made after claimant has been afforded opportunity of fair hearing but on his own volition rejected it.
131. In view of my finding above, the case of the claimant has no merit; I hereby dismissed it in its totality.
132. I make no order as to cost.
133. Judgment is entered accordingly.
Lawrence Alabi, Esq; for the Claimant.
Kehinde Aina, Esq; for the defendant, appearing with Chukwuka Oranuka, Esq;