IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJJANI

JANUARY 9, 2023                                     SUIT NO: NICN/YL/05/2021

 

BETWEEN

ADAMU ISA …………………………………………………CLAIMANT

AND

KEYSTONE BANK LTD………………………….………DEFENDANT

 

REPRESENTATION:

U. M Sabo Esq. for the Claimant.

P. R Ajumebor Esq. for the Defendant.

 

JUDGMENT

1.0.           INTRODUCTION:

The Claimant commenced this action vide a Complaint dated and filed on the 6th Day of June, 2021 seeking against the Defendant the following reliefs as copiously set out on the face of the Complaint as well as the Statement of Facts:

        i.                        A DECLARATION that the dismissal of the claimant from the service of the defendant on grounds of Gross Misconduct ie ‘use N4 million from customer’s late cash deposit for personal needs and later transferring same to the customer’s account’ which allegation is criminal in nature is altogether unlawful, unwarranted, non-existent, null and void.

     ii.                        AN ORDER setting aside the dismissal of the claimant from the employ of the defendant on grounds of Gross Misconduct ie ‘use N4 million from customer’s late cash deposit for personal needs and later transferring same to the customer’s account’, which allegation is criminal in nature same being unlawful, unwarranted, non-existent, null and void and of no effect.

   iii.                        AN ORDER of the Honorable Court reinstating the claimant back to his position in the employ of the defendant.

   iv.                        AN ORDER directing the Defendant to pay the Claimant his salaries, allowances and benefits, for the period the claimant was wrongfully dismissed ie December, 2020 till date of judgment.

      v.                        GENERAL DAMAGES in the sum ofN 3,000,000.00 (Three Million Naira only) taking into cognizance the cost of professional fee in prosecuting this suit, psychological trauma, pains and agony occasioned as a result of the actions of the defendant against the claimant.

   vi.                        COST OF filing this suit.

IN ALTERNATIVE TO C & D ABOVE:

AN ORDER converting claimant’s dismissal into termination of the contract of employment with payment of all benefits accruable to claimant upon termination.

The Complaint is accompanied by Written Statement on Oath of the Claimant and all other frontloaded processes.

Upon the receipt of the originating processes, the Defendant responded vide Statement of Defence filed the 7th of July, 2021 which is accompanied by Witness Statement on Oath and other frontloaded documents. The Defendant prayed the Court to dismiss the Claimant Suit with a punitive cost of N3million.

 

2.0.           FACTS AS LED BY PARTIES

The Claimant testified for himself in this case as CW1. He adopted his Written Statement on Oath as his oral testimony and evidence in proof of his case and was cross examined by the Defendant. The case of the Claimant is that he was employed by the Defendant in 2011 as an Executive Trainee and rose to the rank of Banking Officer in 2019. That on the 1st of August, 2020 which was a Saturday, he was at the Branch of the Defendant at No. 11 Galadima Aminu Way, Yola as the Service Manager Relief (acting service Manager) as the Service Manager, one Mustapha Yaro was on vacation and as the Cash Officer of the Branch, he was to stand in for the service Manager and for the purpose of fumigation of the banking hall and premises. That when he was about leaving, a customer of the bank, one Yakubu Joel Vandu with Account in the name of Yakubu Shopping Plaza called and requested him to wait, as he was coming over and even closer to the bank. That the said customer brought money in an open Kings Oil Carton filled to the bream and together they went and kept the money in a pre-vault and left.

The Claimant stated that on Monday the 3rd of August, 2020, he brought out the money and bundle-count same in the presence of a teller, Christopher Onazi and authorized the same teller to confirm the cash and the cash was confirmed by the teller to be N10, 981,000 minus an overage of 10,000 Naira which was returned to the customer upon arrival. That the customer claimed that the money he brought to the bank was N12, 631,000 (Twelve Million, Six Hundred and Thirty One Thousand Naira) as against the N10,981,000 confirmed by the teller and also alleged that he gave instruction to the Claimant not to count the money in his absence. That the customer, claimed that there was a shortage of N1,650,000 which dispute was later resolved when the customer brought another sum of N1,600,000.00 to make up the differential but then wrote a Letter of Complaint dated 4th August, 2020 over the issue which led to his suspension.

The Claimant stated that while investigation was ongoing, the same customer wrote through his Solicitors that he has reconciled and resolved the difference of N1,650,000 from his end. That the customer then withdrew the complaint for the missing N1,650,000.00 on the basis that having gone through his record, he was able to reconcile and resolve the difference. That despite all these, the Defendant dismissed him and stated in the Dismissal Letter that: “after due consideration of your responses to the allegation where you confirmed that he used N4 million from the customer’s late cash deposit of N12,581 million for your personal needs but later transferred same to the customer’s account in violation of the Bank’s SOP and Code of Ethics, the Disciplinary Committee was persuaded that the allegations against claimant were established and that your conduct amounts to gross misconduct as defined by defendant’s Disciplinary policy and sanction Grid.”

The Claimant tendered the following documents and same were admitted in evidence thus:

Exhibit C1: Letter of employment dated 15/8/2011

Exhibit C2: Latter of employment date 31/8/2009

Exhibit C3: Letter of promotion dated 28/3/2021

Exhibit C4: Latter of promotion dated 31/12/2019

Exhibit C5: Letter of promotion dated 14/3/2014

Exhibit C6: Performance upgrade dated 14/3/2014

Exhibit C7: Customer’s Complaint Letter dated 4/8/2020

Exhibit C8: Customer’s Solicitors’ Letter dated 11/8/ 2020 withdrawing the complaint dated 4/8/2020

Exhibit C9: Documents comprising four Internal Memo including Suspension of the Claimant

Exhibit C10: Claimant’s Dismissal Letter

Exhibit C11: Claimant’s Solicitors’ Letter dated 16/12/2020 to the Defendant

Exhibit C12: Claimant’s statement of account.

Exhibit C13: Pay slip for the month of January 2020.

Exhibit C14: Defendant’s Code of Business & Ethical Conuct.

Under cross examination, the Claimant who initially denied that he personally handled the transaction of 1/8/2020 later admitted he personally received the carton of money from the customer. The Claimant also admitted that he was the only staff of the bank, apart from security men, in the bank on that day and that the customer did not complete a deposit slip for the amount he brought. He also said that the teller did not accept the cash and count the bundles because it was not a working day. CW1 also admitted that the boxed cash was not registered in the register and that the customer did not execute a “subject to count” agreement with the bank. The Claimant denied that he transferred N4million to complete the sum deposited to the Customer’s Account from the Claimant’s Savings Account on 4th August, 2020. Claimant also denied admitting so when he appeared before the Disciplinary Committee.

The Defendant called a sole witness, DW1 Taiwo King, who adopted his Written Statement on Oath as his evidence for the defence and was also duly cross examined by the Claimant.

The case of the Defendant is that the Claimant was a staff of the Defendant till on or about 15th December, 2020 when the Claimant was dismissed for gross misconduct which arose from the Claimant’s use of N4 million from a customer’s late cash deposit for a personal transaction and which the Claimant later transferred back to the said Customer’s Account in violation of the Defendant’s Standard Operation Procedure and Code of Ethics.

It is the Defendant’s case that following a Complaint dated 4th August, 2020 by its customer (Yakubu Shopping Plaza) alleging that it boxed cash of N12,631,000.00 at the Yola Branch on 1st August, 2020 and that when it was counted on 3rd August, 2020 it was short by N1,650,000.00, an investigation of this complaint led to the suspension of the Claimant for breaches of the operating procedures of the Defendant in the said transaction. DW1 stated that because of these infractions, the Claimant was queried, suspended and was later referred to the Disciplinary Committee to explain his position in relation to the transaction in issue. 

The Defendant also stated that the Claimant admitted using N4million from the customer’s deposit for his personal use, and refunding same to the customer through his Savings Account No. 6002807870 with the Bank on the 3rd August, 2020.  References were made to page 7 of Exhibit D4 and page 1 of Exhibit D5 respectively. That the dismissal of the Claimant was deserved, proper and justified in the circumstance and was also strictly in compliance with provisions of the Branch operations standard operating procedures manual (September 2019) and the Bank’s disciplinary policy and sanction grid.

The following documents were tendered by the Defendant and admitted in evidence:

Exhibit D1:

Exhibit D2: Defendant’s Branch Operations Standard Operating Procedures Manual (September, 2019)

Exhibit D3: Defendant’s Disciplinary Policy and Sanction Grid

Exhibit D4: Claimant’s Statement of Account

Exhibit D5: Email Trail

3.0.           THE SUBMISSIONS OF THE DEFENDANT

Defendant’s Learned Counsel adopted the Defendant’s Final Written Address as well as the Reply on Points of Law as his oral argument and legal submission to urge this Honourable Court to dismiss the Claimant’s claim in this case. The Defendant formulated a sole issue for determination, thus:

Whether the Claimant has proved his case to entitle him to the reliefs claimed in this suit?

In his adopted Final Written Address, Defendant Learned Counsel submitted that the burden of proof is on the Claimant to prove his entitlement to the reliefs sought before this Honourable Court. Learned Counsel referred to Section 131(1) of the Evidence Act, 2011.

In this case, the Defendant Learned referred the Court to paragraph 24 of the Claimant’s Statement of Facts and paragraph 25 of Claimant’s Witness Statement on Oath where the Claimant stated that when he was asked about the transfer made on 3rd August, 2020 of N4million from his Account to the Customer’s Account, he answered that it was a transfer for cash upon request of the customer. Learned Counsel referred to the averments of the Defendant at paragraph 20 of the Statement of Defence thus: “that at the Disciplinary Committee meeting, the Claimant admitted that the N4 million he transferred to the customer’s account on August 3, 2020 was a refund for the money he (the Claimant) took from the customer’s boxed deposit for his personal use (to purchase cows)” and the testimony of DW1 at paragraph 12 of his Written Statement on Oath to the effect that the “Claimant admitted using the N4 million from the customer’s deposit and refunding same to company through the Claimant’s Saving Account No. 600280870 with the Bank. The said refund of N4 million to the customer, among others, is reflected in the statement of account of the Claimant on or about 3/8/2020”.

Learned Counsel argued that though the Claimant was served with the above processes, he never filed a Reply to deny the transfer of N4million from his Account to the customer and as such the Claimant must be deemed to have admitted same. Learned Counsel also contended that the following documentary exhibits before this Court further established that the Claimant committed gross misconduct by taking N4 million from a customer deposit, viz: Exhibit D4, Claimant’s Statement of Account at page 7 showed that the Claimant transferred N4million to the customer on 3rd August, 2020; Exhibit D, Email trail of Query issued to Claimant by the Defendant, at the last paragraph of page 1 thereof; breach of Exhibit D2 Standard Operating procedure manual for Branch Operations (May 2019) at pages 120 and 121 which laid down procedure for management of late/boxed/bulk case deposit; breach of Exhibit D3 Disciplinary Policy and Sanction Grid, at page 24, items 6 and 12 which provide that the sanction for the gross misconduct is dismissal.

Learned Counsel to the Defendant on the issue of management of late/boxed/bulk case deposit, referred to pages 120 and 121 of Exhibit D2; on the definition of “Gross Misconduct,” referred to page 6 of Exhibit D3, particularly lines (ii) and (iii) while on the appropriateness of the letter of dismissal issued to the Claimant, Learned Counsel referred to the sanction grid in page 24 of Exhibit D3, particularly items 6 and 12.

Defendant Learned Counsel submitted that from the adduced evidence, the Claimant admitted committing the said act of gross misconduct by taking N4million from a customer’s cash deposit for his own use. Learned Counsel relied on the judicial precedents of Adusei & Anor v Adebayo [2012] 1 S.C.N.J 593 at 610, paras 5 – 11 and Ojukwu v Onwudiwe (1984) 2 SC 15 at 38 to submit that these admitted facts require no further proof. Learned Counsel went further to submit that the Defendant has however led adequate evidence to justify the sanction of dismissal meted on the Claimant in the circumstances. Learned Counsel submitted that the Claimant has woefully failed to discharge the burden of proof imposed upon him by the law to prove his claims in this case.

Defendant’s Learned Counsel argued that the position of the law is that the burden of proof lies on the Claimant who seeks to enforce a right because who asserts must prove and where the Claimant failed to prove his case, the onus cannot shift to the Defendant. Learned Counsel relied on the authorities of Ohochukwu v A/G Rivers State & Ors [2012] 2 S.C.N.J 58 at 80 and Akande v Adisa & Anor [2012] 5 S.C.N.J 517 at 532 paras 32 – 36. Learned Counsel urged this Honourable Court to dismiss this suit with punitive cost.

In his adopted Reply on Points of Law, Defendant Learned Counsel on the contention of the Claimant that ground adduced for the dismissal is criminal allegation, replied that it is not based on criminal allegation but on simple violation of the Defendant’s Policy, a breach of fundamental term of his term of employment which attracts the sanction of dismissal. Learned Counsel replied that there is no place the Defendant accused the Claimant of committing any criminal offence and as such the cases cited by the Claimant are not applicable in this suit.

On the Claimant’s submission that there is no evidence of transfer of the sum of N4million and Claimant’s purported non-admission, Defendant Learned Counsel relied on the authority of B.S.J.S.C v Danjuma (2017) 7 NWLR (Pt 1565) 432 at 457, paras. B – C to submit that the documents tendered before the Court speak of themselves and a Counsel cannot, in the guise of a final address mislead the Court in respect of clear evidence already before it, as the court is bound by the evidence before it and not the address of Counsel which is not supported by material evidence.

Defendant’s Learned Counsel concluded that the case of the Claimant is not sustainable, the Claimant having admitted the violation of the Defendant’s Policy by tampering with the deposit of a customer.

4.0.           THE SUBMISSION OF THE CLAIMANT

Claimant’s Learned Counsel adopted the Claimant Final Written Address as his oral submission and legal argument to urge this Honourable Court to entre Judgment in favour of the Claimant in this case. By the adopted Final Written Address, Claimant Learned Counsel formulated a sole issue for determination of this matter thus:

Whether the claimant is not entitled to the grant of the reliefs sought in this suit as per the pleadings and evidence adduced in support before this Honourable Court?

In his argument, Claimant Learned Counsel submitted that having regards to the pleadings and evidence adduced in support, the Claimant is entitled to the reliefs sought in this Suit. Learned Counsel contended that the dismissal of the Claimant on ground of gross misconduct which is non-existent and unsubstantiated is wrongful, unlawful, unwarranted, null and void. Claimant’s Learned Counsel urged this Honourable Court to note the reason stated in the Dismissal Letter, Exhibit C10. Learned Counsel contended that the reason is non-existent, false, unfounded, unproven to have warranted the dismissal. Learned Counsel also argued that the said reason which is criminal in nature runs contrary to the opening paragraph of the same Dismissal Letter which alluded to cash shortage of N1.65 Million.

Claimant’s Learned Counsel referred to Exhibit C7 for the Court to note the customer’s complaint upon which the Claimant was suspended vide Exhibit C9. Learned Counsel argued that from the evidence led before the Court by the Claimant and supported with documentary evidence as well as admitted by the DW1 under cross-examination, the said customer vide Exhibit C11 (Withdrawal of Complaint of Missing Fund) wrote the Defendant and stated clearly that ‘having gone through our record we were able to reconcile and resolve the differences of N1,650,000.’ Learned Counsel thus submitted that the reason adduced in that Dismissal Letter therefore has no basis.

Learned Counsel contended that dismissal of an employee is a disciplinary tool that must not be used arbitrarily or at will but must follow laid down rules because dismissal carries a stigma especially when criminality is the reason. Learned Counsel argued that the allegation of usage of N4million from the customer’s late cash deposit for Claimant’s personal needs but later transferring same to the customer’s account is an allegation of criminal breach of trust which is very false in this case. Learned Counsel argued that though an employer is not bound to give reason for termination of employment but where reason is advanced, it must be proved by the employer to the satisfaction of the Court and where the reason is criminal allegation like in this case, it must be established beyond reasonable doubt. Learned Counsel relied on the judicial authorities of Shell Petroleum Dev. Co. Ltd v Chief Victor Sunday Olarewaju (2008) LPELR-3046 (SC) 19 paras E – G and  Olanrenwaju v. Afribank Plc (2002) FWLR (Pt 72) 2000 at 2017 paras A-E. Learned Counsel relied on the judicial authority of Dongtoe v CSC, Plateau State (2001) LPELR-959 (SC) at 34 – 35, paras E – G to submit that an administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases of allegation of crime.

Learned Counsel contended that there is no shred of credible evidence adduced by the Defendant to establish the criminal reason for the dismissal in this instance. Learned Counsel referred to paragraph 11 – 14 of DW1 Statement on Oath that the Disciplinary Committee recommended the dismissal of the Claimant specifically for using N4million out of the customer’s deposit for personal transaction, buying of cows and that the Claimant admitted this and refunded to the customer and that this usage of customer’s deposit for personal purpose is a gross misconduct that attracts dismissal. Learned Counsel contended that the Claimant denied all these allegations under cross examination when CW1 denied transferring the balance of N4million of customer’s deposit from his personal account to Yakubu Shopping Plaza and the Claimant did not admit transferring the balance of N4million of the customer’s deposit to the customer at the Disciplinary Committee.

Learned Counsel argued that the Claimant vide Exhibit C11 (Claimant’s Solicitors’ Letter dated 16th December, 2020 categorically denied using N4million or any amount of the said Customer for his personal use. Learned Counsel also referred to paragraph 24 of the Statement of Facts and paragraph 25 of his Written Statement on Oath to the effect that the Claimant was asked by the Disciplinary Committee the reason for the transfer of N4Million to the Customer and he answered that it was a transfer for cash at the request of the customer. Learned Counsel submitted that this is not an admission that the Claimant used N4million of the customer’s deposit, which ground the Defendant used as the reason for Claimant’s dismissal.

Learned Counsel contended that the Defendant has not proved that the Claimant used the customer’s deposit of N4million for his personal use. Learned Counsel argued that DW1 under cross-examination admitted that there was no complaint from the customer regarding issue of N4million. Learned Counsel referred to the undisputed facts before the Court to the effect that the customer box-cashed money to the bank on Saturday the 1st of August, 2020 to be deposited on Monday the 3rd of August, 2020 on which day the Claimant brought out the money and bundle-count same in the presence of the teller-Christopher Onazi and authorized the same teller to confirm the cash, after which the Claimant called the customer who came over to the Bank.

Learned Counsel also referred to the evidence that the customer who initially disputed the amount was N1,650,000 short, it was resolved and the customer went and brought the balance and same was posted to the customer’s account by the teller. Learned Counsel argued that same customer who wrote Complaint over the counting of the money in his absence which complaint led to the suspension of the Claimant, later in the course of investigation wrote another letter withdrawing the said Complaint and stated that the shortfall was reconciled at his end. Learned Counsel argued that this piece of evidence was not challenged by the Defendant in this case and as such it must be deemed admitted and this Honourable Court should act on it. Learned Counsel relied on the authority of Muniyas (Nig) Ltd v Ashafa (2012) All FWLR (Pt 642) 1772 at 1786 paras C – D, Gaji v Paye (2003) FWLR (Pt 163) 1 at 17 – 18, paras H – A, Oforlete v State (2000) 7 WRN 86 at 105 paras 5 – 10; and Hassan v Tade (2012) All FWLR (Pt 612) 1764 at 1770 paras B – E.

Learned Counsel relied on the judicial precedents of Kate Enterprises Ltd v. Daewoo Nig Ltd (1985) 2 NWLR (Pt.5) 116 at 127 to submit that this Honourable Court should not attach any weight or probative value to the testimony of DW1 who has admitted that he was not in Yola at the time the customer brought cash to the Defendant Branch in Yola up to the time of the Complaint, and was not part of the Disciplinary Committee that investigated the case and he never investigated the issue. Learned Counsel submitted that even though an employee of a company can testifies in a transaction in which he was not personally involved, the weight or probative value to be attached to his evidence on the matter thereof is entirely different. Learned Counsel contended that DW1 was not in Yola as at the time of the occurrences of events leading to this case, was not a member of the Disciplinary Committee and never investigated the case but has testified on these matters.

Claimant Learned Counsel contended that Exhibit DW4, Claimant’s Statement of Account, relied on by the Defendant did not prove the reason alleged by the Defendant for the dismissal. Learned Counsel contended that the Defendant’s position sought to be proved with Exhibit DW4 as regards the transfer of N4million from the Claimant’s Account to the Customer on the 3rd of August, 2020 which the Defendant interpreted as Claimant’s refund of the money taken from customer’s boxed deposit for his personal use as stated in paragraph 20 and 22 of the Statement of Defence and paragraphs 11 to 14 of DW1 Statement on Oath, cannot stand in the face of the evidence that it was on same 3rd August, 2020 the customer’s money was bundle-counted and confirmed and as such the explanation given by the Claimant that the money was upon the request of the customer, transferred for cash is the only plausible reasoning on the N4million.

Learned Counsel argued that this was a private arrangement not relating to the deposit of the customer. To buttress his point, Learned Counsel urged the court to note in Exhibit DW4 that the Claimant also transferred the total sum of N8.2 Million to the customer on the same 3rd of August, 2020 as against the N4million alluded to by the Defendant. Learned Counsel also referred to the two transactions of N950,000 & N2,5000,000 on page 2, N750,000 at page 4 and N4,000,000 at page 7 of Exhibit DW4. Learned Counsel submitted that it is therefore not true that the Claimant used N4million from Customer’s box deposit.

As regards Exhibit DW5, Claimant Learned Counsel contended that nothing in this Email trail tendered by the Defendant contain any response from the Claimant as alleged. Learned Counsel argued that the mail of September 14, 2020 11:19 was from one Mustapha Yaro to Christopher Okojie; that of 14 September, 2020 10:34 AM is also from Mustapha Yaro to Christopher Okojie; the mail of September 11, 2020 2:47 is from Christopher Okojie to Claimant, while that of 18 August, 2020 1:20PM is from Christopher Okojie to the Claimant. Learned Counsel argued that this is more obvious because as at those dates, the Claimant had been logged out of the system for communication. Relying on the judicial authority of Otukpo v John (2013) All FWLR (Pt 661) 1509 at 1528 – 1529 paras G – A, Learned Counsel submitted that this Honourable Court cannot even act on this Exhibit DW5 which fact was not contained in the pleadings. Learned Counsel urged this Honourable Court to expunge Exhibit DW5 from its record as it goes to no issue.

Claimant’s Learned Counsel thus urged this Honourable Court to hold that the reason adduced by the Defendant for the dismissal of the Claimant is not established and thus the dismissal is wrongful, null and void. Learned Counsel urged the Court to resolve the sole issue in favour of the Claimant and accordingly grant the reliefs sought.

5.0   THE COURT’S DECISION

The Claimant’s case is that he was unlawfully suspended and wrongfully dismissed by the defendant. The Defendant’s case is that the dismissal of the Claimant was proper in the circumstance. In my view, the only issue that calls for determination in this case is whether having regard to the facts and the circumstance of this case, the dismissal of the Claimant is proper.

The position of the law which is notorious and has come to stay from time immemorial is that in civil proceedings of which this suit is a specie by virtue of the provisions of Section 136 (1) & (2) of the Evidence Act, 2011, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other and this burden of proof is legally sufficiently discharged on the balance of probabilities in civil proceedings. Flowing from the foregoing, civil cases are decided on preponderance of evidence where parties testified before the trial court and called witnesses, the trial court is enjoined to set up an imaginary judicial scale on which it should place the pieces of evidence adduced by the parties on both side in order to weigh the evidence, not however by the number of witnesses called by parties but by the quality and credibility of pieces of evidence to see which side preponderates. This trite position of the law is littered with plethora of judicial decisions too many to start citing but suffice to mention the decision of the infallible court, as follows: Daudo v NNPC & Ors (1998) LPELR – 927 (SC), Mogaji & Ors v Odofin & Ors (1978) 4 SC 91 at 94, Lewis & Peat Nig Ltd v Akhimien (1976) 7 SC 157, Sakati v Bako & Anor (2015) LPELR – 24739 (SC). This position was followed and adopted by the penultimate court in the case of Kuburi Int’l Trading Coy Ltd v Bulama Musti & Anor (2018) LPELR – 44004 (CA) where the court held thus:

“In civil case of which this instant case is a specie, the burden of proving the existence or non existence of a fact lies on the party against whom the judgment would be given if no evidence were produced on either side, regard being had to any prescription… if such a party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and successively, until the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the Plaintiff who brought the action, though not invariable so. There are times when the burden is on the Defendant, depending on the state of the pleadings. Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof.”

In Adamu v Nigerian Airforce (2022) 5 NWLR (Pt 1822) 159 (SC) at 182, the Supreme Court held that: “A defendant need not prove anything if the Plaintiff has not succeeded in establishing his case, at least, prima facie, in order that the necessity of the defendant to confront the case so made may arise. Where the Plaintiff fails to prove his case as required by the law, it shall be dismissed.” See also, Umera v NRC (2022) 10 NWLR (Pt 1838) 349 (SC) 387 paras G – H.

In line with the above established principles of law of evidence, the law places the duty on whoever alleges that termination of his employment is unlawful or wrongful to prove before the court the fact of the contract of service and the terms and conditions of same. In Aji v CBDA (2015) 16 NWLR (Pt 1486) 554 at 571, paras G – H, 572, paras D – E, the Apex Court held that whether an employee is suing for wrongful dismissal from an employment with statutory flavour or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be pleaded but must be proved by evidence before a determination of the wrongful nature of his termination or dismissal can be considered by the Court.

It is the contractual terms and conditions that are binding on the parties that the Court will consider vis-à-vis the procedure taken by the employer in the termination of the employment. The Court is not permitted to go outside the terms and conditions of employment agreed between parties in the determination of the rights and obligations of the parties under the contract. In Idoniboye – Obu v NNPC (2003) 2 NWLR (Pt 505) 589 (SC), the apex court in its elucidating pronouncement held thus at page 650, paras C – D:

“A court has no jurisdiction to interpret or construe contractual documents more favourable to a party outside the terms and conditions provided in the document or documents. Parties are bound by the four walls of the contract and the only duty of the Court is to strictly interpret the document that gives rise to the contractual relationship.”

See also, Akinola v Lafarge Africa Plc (2022) 12 NWLR (Pt 1844) 379 (SC).

The crux of the Claimant’s argument as can be gathered from the final written address is that the Defendant has failed to prove the  alleged reason for the dismissal, that the Defendant’s position sought to be proved with Exhibit DW4 as regards the transfer of N4million from the Claimant’s Account to the Customer on the 3rd of August, 2020 which the Defendant interpreted as Claimant’s refund of the money taken from customer’s boxed deposit for his personal use as stated in paragraph 20 and 22 of the Statement of Defence and paragraphs 11 to 14 of DW1’s  Statement on Oath, cannot stand in the face of the evidence that it was on same 3rd August, 2020 the customer’s money was bundle-counted and confirmed and as such the explanation given by the Claimant that the money was upon the request of the customer, transferred for cash is the only plausible reasoning on the N4million. That the allegation of usage of N4million from the customer’s late cash deposit for Claimant’s personal needs but later transferring same to the customer’s account is an allegation of criminal breach of trust which is very false in this case. Learned Counsel argued that though an employer is not bound to give reason for termination of employment but where reason is advanced, it must be proved by the employer to the satisfaction of the Court and where the reason is criminal allegation like in this case, it must be established beyond reasonable doubt and that an administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases of allegation of crime.

The Defendant’s reaction in this regard, as can be gathered from the reply address on points of law, is that the dismissal of the dismissal is not based on criminal allegation but on simple violation of the Defendant’s Policy, a breach of fundamental term of the Claimant’s employment contract which attracts the sanction of dismissal. Learned Counsel argued that there is no place the Defendant accused the Claimant of committing any criminal offence and as such the cases cited by the Claimant are not applicable in this suit.

Now, Exhibit C10 is the letter by which the Claimant was dismissed by the Defendant, a for ease of reference, I reproduced it hereunder:

December 15, 2020

            Isa Adamu

No 16, Sarkin Kano Aliyu Road

Wuro Hausa Yola Town

Adamawa State

Dear Isa

LETTER OF DISMISSAL

Please recall that you were brought before the Staff Disciplinary Committee of Keystone Bank Limited on November 26, 2020 in respect of allegation of the breach of the Bank’s Branch Operations Standard Operating Procedure Manual (SOP) on late/boxed  cash deposit in the way in which you handled the cash deposit of Yakubu Shopping Plaza (the customer), which led to cash shortage of N1.65 million.

`           After due consideration f your responses to the allegation where you confirmed that you used N4 million from the customer’s late cash deposit  of N12. 581 million for your personal needs and later transferred same to the customer’s account in violation of the Bank’s SOP and Code of Ethics, the Disciplinary Committee was persuaded that the allegations against you were established and that your conduct amounts to GROSS MISCONDUCT as defined by Keystone Bank Disciplinary Policy and Sanction Grid.

Consequently, you are hereby dismissed from the services of the Keystone Bank Limited with effect from December 15, 2020.

Upon receipt of this letter, you are required to handover the Bank’s properties including _identity cards, call cards, lapel pin, access card etc, in your possession to the undersigned or a nominated representative.

Please acknowledge receipt of this letter on the attached copy.

Thank you.

Yours faithfully

FOR: KEYSTONE BANK LIMITED

ADEDOYIN DOSUMU

DIVISIONAL HEAD, HUMAN CAPITAL NMANAGEMENT.

From the contents of letter of dismissal reproduced above, it can be clearly understood that the Claimant was dismissed for Goss Misconduct, there is nothing to suggest that the dismissal was on account of criminal allegation. I am therefore at one with the learned counsel to the Defendant that the authorities cited by the learned Counsel to the Claimant in support of his argument over allegation of crime are of no moment. I so hold.

Even where the misconduct borders on criminality, the Claimant’ s argument that where the reason for the dismissal is criminal allegation, it must be established beyond reasonable doubt is, to my understanding, not the correct position of the law. The correct position of the law was stated by the supreme Court in the case of Arinze v. F.B.N. L.t.d. (2004) 12 NWLR (PT888) 663, thus:

 “In cases of misconduct bordering 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. 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 afford him opportunity for representation in his own defence”

See also Imonikhe v. Unity Bank Plc (2011)12 NWLR (Pt.1262) P. 648, para H, 649, paras B-C.

In any event, while an employer has the right of dismissal, the law is that once an employer gives a reason for terminating or dismissing an employee the burden lies on him to justify the said reason for the dismissal.  In EZE V.UNIZIK (2021) LPELR 56186 (CA), the Court of Appeal Per Mahmoud JCA held at P. 35, paras A-F thus:

The employer is not bound to give reasons for terminating the appointment provided the requisite notice is given. Where however as in this case, the employer gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court. See OLATUNBOSUN V N.I.S.E.R. Council (1988) 3 NWLR, PT. 80, 25 and SHELL PETROLEUM DEV. CO. LTD V OLAREWAJU (2008) 18 NWLR, PT 1118, 1. The respondent having given misconduct as its reason for dismissing the appellant has the onus to establish that the appellant was indeed guilty of such alleged misconduct to warrant his dismissal. Most importantly, the Court must ensure that in the investigations or proceedings of the domestic panel culminating in the employee's dismissal, the rules of natural justice were not breached. See SHELL PETROLEUM DEV. CO LTD V OLAREWAJU (SUPRA) and OLAFIMIHAN V NOVA LAY TECH LTD (1998) 4 NWLR, PT 547, 608 AT 611."

Gross Misconduct is the reason given by the Defendant in Exhibit C10 for dismissing the Claimant.  It is not I  dispute that the Claimant had faced Staff Disciplinary Committee of the Defendant on November 26, 2020 over allegation of breach of the Defendant’s  Standard Operating Procedure Manual (SOP) on late/boxed cash deposit regarding the manner he handled  the cash deposit of the Defendant’s customer (Yakubu Shopping Plaza) which led to cash shortage 0f N 1.65 Million. Also not in dispute is the fact that the cash deposit was made by the customer on Saturday, August 1, 2020 and the Claimant received same on condition that same will be counted in the presence of the customer on the next working day. See Exhibit C7 (the letter of complaint written by the customer  dated August 4, 2020.

Learned Counsel to the Claimant also argued that even though an employee of a company can testify in a transaction in which he was not personally involved, the weight or probative value to be attached to his evidence on the matter thereof is entirely different. Learned Counsel contended that DW1 was not in Yola as at the time of the occurrences of events leading to this case, was not a member of the Disciplinary Committee and never investigated the case but has testified on these matters. Non participation of the DW1 in the investigation and subsequent hearing of the Disciplinary Committee may in appropriate cases affect the weight to be attached to his testimony.  In Ishola v. Societe  Generale Bank (Nig) Ltd (1997) LPELR-1547, the Supreme Court Per IGUH, JSC held at P. 26-27, paras. F-D thus:

“... it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence. See Kate Enterprises Ltd v. Daewood (Nig.) Ltd. (1985)2 NWLR (Pt.5) 116, Anyaebosi v. R.T.Briscoe (Nig.) Ltd (1987) 3 NWLR (Pt.59) 84, Chief Igunbor & Ors v. Chief Ugbede (1976) 9-10 SC 179 at 187 etc."

 

In the instant case, apart from the testimony of the Defendant’s witness, there is enough evidence both oral (Claimant’s response under cross examination) and documentary (Exhibit D4) which clearly established a case of gross misconduct against the Claimant, which in my humble view, justified the Claimant’s dismissal from the defendant’s employment.

The Defendant averred at paragraph 7 of the statement of defence that during investigation and at the hearing of the Disciplinary Panel set up to determine the Claimant’s involvement in the customer’s allegations the Claimant admitted that he violated a fundamental policy of the Defendant as well as the Branch Operation Policy in the following terms:

A.     The customer did not complete a deposit slip;

B.     A teller did not accept the cash and bundle count;

C.     The late cash was not registered in the boxed cash register;

D.     The customer did not execute a “subject-to-count” agreement with the bank, and;

E.     The cash was not posted into the Bank’s designated GL as detailed in the Bank’s Branch operation manual.

F.      In addition, the Claimant was the only person present during the boxed cash deposit by the customer on Saturday, August 1, 2020.

The Defendant also averred at paragraph 13 of the statement of defence that during investigation into the customer’s complaint, the Claimant confirmed that there was a short payment of N4 Million out of the cash sum of N12.581 Million purportedly boxed-in.  The Defendant further averred at paragraph 20 of the statement of defence that the Claimant admitted to the Disciplinary Committee that the N4 Million he transferred to the customer’s account on August 3, 2020 was a refund for the money he (the Claimant) took from the customer’s boxed deposit for his personal use (to purchase cattle.  This transfer was further confirmed by Exhibit D4 which, at page 7, clearly indicated the transfer made to the customer by the Claimant of the said N4Millon on the August 3, 2020. Despite the evidence of transfer of the N4M in Exhibit D4, the Claimant had denied making the said transfer to the customer under cross examination.

It is amazing that as weighty as the allegations in the above paragraphs of the statement of defence are, the Claimant did not file a reply to statement of defence to react to them.  It is without any iota of doubt that failure to file a reply to fresh fact which was not anticipated in the statement of claim is fatal to the Claimant’s case. The effect of failure to file a reply in such circumstance is that the Claimant has admitted the fresh fact as correct. The failure to file reply in a situation where it is necessary cannot be cured by any other means. See Abdullahi & Anor v. Rabi & Ors (2020) LPELR-52786(CA) and Unity Bank v. Bouari (200) 33 (PT. 2) NSCQR 1296 at 1343.

 

The Claimant apart from his failure to react to the new facts alleged in the statement of Defence, had even admitted under cross examination that he was the one that took the transaction , that he was aware of the Defendant’s policy on fiscal security risk management of 2019 which stipulates that minimum occupancy of the bank’s premises at any time shall require two member s of staff excluding non-clearance staff and of the two one must be an officer , that at the time of the transaction on August 1, 2020 he (the Claimant) was the only person and there was a security guard, that the customer  did not complete the deposit teller,  that the teller did not accept the cash and bundle count them because it was not a working day, that the late cash deposit was not registered in the box cash register.  

The conduct of the Claimant in handling the cash deposit from August 1st -3rd, 2020, is an aberration to Pages 120 and 121 of the Defendant’s Standard Operating Procedure Manual for Branch Operations (Exhibit D2) which aberration amounts to gross misconduct as defined in the Defendant’s Disciplinary Policy and Sanction Grid  (Exhibit D3)  at page 6 iii, the penalty of which is dismissal under page 24 items 6-12 of Exhibit D3. I am therefore at one with the learned Counsel to the Defendant that the Defendant has justified the dismissal of the Claimant. I so hold.

Learned Counsel to the Claimant argued strenuously in the final written address that the Claimant has denied the allegation of using N4 Million out of the money deposited by the customer for his personal use and also denied that he later transferred same to the customer’s account. The Claimant did not lead evidence to convince this Court on why he transferred N4 Million into the customer’s account as proved in Exhibit D4. All these defects in the Claimant’s case cannot be cured in the final written address. The law is trite a brilliant address is no substitute for evidence. Counsel submission no matter how brilliant and alluring cannot take the place of legal proof.  See Alucha & Anor v. Elechi & Ors (2012) LPELR-7823(SC).

In the final analysis, for all the reasons stated, I find no merit in the Claimant’s case; it fails and is accordingly dismissed. I so hold.

Judgment is entered accordingly; I make no order for cost.

 

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                                  HON. JUSTICE MUSTAPHA TIJJANI