IN THE NATIONAL INDUSTRIAL COURT NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: JULY 28, 2023 SUIT NO. NICN/ABJ/384/2023
BETWEEN
MR. SOALA MELVIN ISOKARIARI CLAIMANT
AND
FIRST BANK OF NIGERIA, LTD DEFENDANT
REPRESENTATION
C. Ogalagu for the Claimant, with S.E. Nnadi.
Bimbo Atilola for the Defendant, with Babayemi Olaniyan.
JUDGMENT
[1] The claimant filed this complaint against the defendant on 18th December 2020 together with the accompanying processes, and is seeking the following reliefs:
i. A declaration that the setting up of a Disciplinary Panel for the Sanction of the Claimant when the Criminal allegation leveled against the Claimant was yet to be investigated, charged to court and rendering of a verdict by a court of law is ultra vires the disciplinary procedure of the defendant as contained in her Employee's Handbook and in breach of the Claimant's right to fair hearing and. presumption of innocence guaranteed by the Constitution of the Federal Republic of Nigeria, 1999(as amended).
ii. A declaration that the purported summary dismissal of the Claimant by the defendant upon a criminal allegation without the verdict of a court of law is wrongful, unconstitutional, invalid, null and void and of no effect having been done in breach of the Claimant's right to fair hearing and presumption of innocence guaranteed by the Constitution of the Federal Republic of Nigeria, 1999(as amended) and the extant Disciplinary Procedure as enshrine in the Employee's handbook of the Defendant.
iii. A declaration that the unilateral deduction of the sum of N 397, 877.1K (Three hundred and ninety seven thousand, eight hundred and· seventy seven naira kobo) on monthly basis from the Claimant's monthly salary during the period of his suspension by the Claimant is arbitrary, wrongful and unlawful.
iv. An order of this honorable court setting aside the purported summary dismissal of the Claimant by the defendant as the said dismissal is unconstitutional, null and void and of no effect and contrary to the extant terms and conditions of service governing the Claimant's employment.
v. An. order of this honorable court compelling the defendant to re-instate the Claimant or properly /legally terminate the Claimant's employment.
vi. An order of this honorable court compelling the defendant to pay to the Claimant his full monthly salary being the sum of N 420, 000.00(Four hundred and twenty thousand naira only) for the four months of his suspension, to wit, March, 2020 to June, 2020.
vii. An order of this honorable court compelling the defendant to pay to the claimant all his accrued salaries, remuneration, allowances, benefits, gratuities, pension and all such other entitlements accruable to the claimant by virtue of his office or employment from the date of the null, void, invalid and/or unconstitutional summary dismissal, being the 1st day of July, 2020 till date.
viii. The sum of N 500, 000, 000.00(Five hundred million naira only) as damages for the psychological torture, emotional mental depression and humiliation occasioned to the claimant by the unlawful and unjustifiable acts of the defendants to the claimant who was arrested at the instance of the defendants like a common criminal and subjected to degrading, inhuman and unconstitutional treatment.
ix. The sum of N 600, 000. 00 being the cost of this suit.
x. 10% interest on the judgment sum per annum from the date of judgment till the judgment is fully liquidated.
The Defendant filed an amended statement of defence and a counter claim together with the accompanying processes on 4th November 2021. The Defendant counter claimed as follows:
i. The sum of N1,16,794.15 (One Million, One Hundred and Sixteen Thousand, Seven Hundred and Ninety-Four Naira, Fifteen Kobo) being the outstanding indebtedness of the Claimant/ Defendant to the Counter Claim, to the Counter Claimant as at 8th October, 2021, on the car loan facility granted him in October, 2018.
ii. 15% post judgment annual interest on any sum awarded the Counter Claimant until same is liquidated.
The Claimant filed a reply to the statement of defence, and a defence to the counter claim on 2nd December 2021.
Case of the Claimant
[2] The case of the claimant on the pleadings is that he was offered an employment by the defendant and same was duly accepted by him on the 7th day of September, 2007. And that he was also given an employee handbook by the defendant which governed the terms and conditions of his services under the employment of the defendant. He averred that he offered thirteen years of unbroken services to the defendant, served in different capacities and by dint of hard-work and devotion to duty rose to the position of a Branch Head, Financial Services with the Ikot Ekpene Market, Akwa Ibom branch of the defendant.
[3] The claimant stated that throughout the period of his employment, he made solid contribution to the fortunes of the defendant through the various responsibilities he shouldered up to his last office at Ikot Ekpene Market Branch, Ikot Ekpene, Akwa Ibom State. The claimant averred that on the 28th day of February, 2020, he was carrying out his responsibilities when he received a phone call from his colleague, Mr Daniel Etuk who is also member of staff of the defendant at another branch in Akwa Ibom State who then asked him to assist his relative, Umoren Lawrence Michael (hereinafter referred to as 'the customer'), who is a customer of the defendant to carry out his transaction with the defendant.
[4] The claimant stated that the said customer, Umoren Lawrence Michael eventually came to his branch and upon enquiry by the Claimant as to what services he needed, he said that he needed to make a fund transfer of the sum of Nl4, 000, 000.00(Fourteen million naira only) from account no: 3007262404 to a corporate account in Fidelity Bank for the purpose of a building project and also to make a cash withdrawal of the sum of N1, 000, 000.00(One million naira only).
[5] The claimant stated that upon receiving the instrument from the customer, he requested for his BVN after which he carried out due diligence, viewed the account mandate and confirmed that the customer was an additional signatory to the account. He averred that the account the customer sought to withdraw from is a savings account with customer mandate instruction that either of the signatories can sign for the purpose of withdrawal. And that upon confirmation that the customer's signature was regular and that the account was duly funded, the Claimant in furtherance of due diligence, sent the customer to the fund transfer officer to treat the customer's transaction.
[6] The claimant stated that the fund transfer officer also carried out due diligence as he requested the customer to use a biometric device provided by the bank to authenticate transactions in order to prevent fraud. He averred that upon carrying out the entire due process as required by bank rules, the fund transfer officer completed the transaction and handed over the form to the Claimant as the Head, Financial Transaction for authorisation. The Claimant further stated that upon the consummation of the transaction, he received the withdrawal booklet of the customer, authorised the transaction and sent the customer to the bulk teller unit to treat.
[7] The claimant stated that when the customer was through with all the initial transactions, the customer indicated that he wanted to deposit the sum of N 900, 000.00 out of the sum of N 1, 000, 000.00(0ne million naira only) withdrawn by him into account no: 2033776060- DICK DAN. He averred that the customer also requested the Claimant to assist him hand over the sum of N 100,000.00 to the said relative of his, Mr Daniel Etuk who earlier called the Claimant to assist the customer with the transaction and that accordingly, the customer deposited the said N 900, 000.00 to account no: 2033776060- DICK DAN and after speaking with the Claimant's colleague and his relative, Mr Daniel Etuk, the customer left the bank.
[8] The claimant stated that in the morning of the 9'" day of March, 2020, he received the shock of his life when police officers were brought to his office to arrest him on an allegation that he carried out a fraud on a customer's account in the sum of N 15, 000, 000.00(Fifteen million naira only) . The Claimant averred that he was arrested like a common criminal at the full glare of the public at the instance of the defendant, taken to the police station where he made a statement and that despite the statement he was upon the instruction of the defendant, detained and refused bail until after two days when he was eventually released on bail and the defendant never issued him any query but that on the 10th day of March, 2020, being the Claimant's second day in detention at the police station that the defendant's Cluster Control Manager handed him a query to explain his role in the transaction.
[9] The claimant stated that upon his release, he was handed an internal memo which states that he had been placed on suspension with immediate effect pending the determination of his case with the police in line with the employee's handbook. The Claimant averred that throughout the period of his suspension wherein he was reporting to the office on daily basis in accordance with the directive of the defendant, the defendant refused, failed and/or neglected to pay him his full monthly salary. The Claimant stated that under the disciplinary procedures of the defendant as contained in her Employees' Handbook, where there is a suspicion of involvement in, or aiding and abetting of criminal behavior by a member of staff, it is regarded as a case of individual against the state and the only step the defendant can take is suspension until the conclusion of the case in court. Furthermore, the claimant averred that by virtue of the defendant's Employee Handbook, it is upon the conclusion of the case in court that the suspected member of staff will be referred to the Disciplinary Committee for trial and sanction.
[10] The claimant stated that without waiting for the police to conclude the investigation of the case let alone charge the matter to court for trial and judicial determination of the criminal allegation of fraud leveled against him which the police was then investigating, the defendant hurriedly set up a disciplinary Committee and on the 14th day of May, 2020, invited the Claimant for a virtual/ on-line Disciplinary Committee session where he was asked by the panelist to narrate what transpired and he repeated the narration of all that transpired as contained in the response to his query. He averred that he denied the unfounded allegation made against him before the panel and narrated/clarified the panel on what transpired.
[11] The claimant stated that he was shocked to his marrow when on the 1st day of July, 2020, without any further contact to him by the defendant and without waiting . for the outcome of the police investigation, the defendant sent him a letter dated the 26th day of June, 2020 informing him that he had been 'summarily dismissed for gross misconduct', and that shortly after he was served with the said letter of summary dismissal, the police eventually concluded their investigation and wrote a police Investigation Report dated the 7th day of July, 2020 which disclosed the outcome of their investigation with respect to the allegation of crime against the claimant and others. He averred that the said Investigation Police Report unequivocally exonerated/ cleared the Claimant and all other suspects of the alleged fraud and particularly stated that no prima facie case was made out against the claimant and all other suspects in the allegation of fraud on the said customer's account. He stated that notwithstanding the said police investigation report which entirely cleared the Claimant of allegation of crime which was the basis of his purported summary dismissal, the defendant has refused, failed and/ or neglected to reverse the purported summary dismissal.
[12] The claimant stated that that when he noticed that the defendant did not take any step to re-instate him even upon being served with the investigation report of the police which exonerated him of any crime, he then filed an appeal to the Disciplinary Committee the Head office of the defendant in line with the appeal procedure of the defendant but the defendant did not contact him or take any further step towards rectifying his unjust and unlawful dismissal. And that he wrote them another letter reminding the defendant of his earlier letter of appeal. He stated that after he had sent the letter of reminder, the defendant vide an email invited the him for a virtual appeal meeting scheduled for the 22nd day of September, 2020 but the Disciplinary Committee shockingly told him that the investigation report of the police has no bearing on their decision and that their decision on the summary dismissal of the Claimant is final.
[13] The claimant stated that the acts of the defendant has inflicted enormous harm to him as he was subjected to psychological / torture, emotional/mental depression, public odium and humiliation. And that he has suffered untold hardship as he has been practically thrown into the street without any means of livelihood for no reason.
[14] The Claimant in his reply to the statement of defence stated that it is untrue that the deceased Umoren Ini is the sole signatory of account no: 3007262404 till his demise. He stated that he was not in any way negligent in approval of the transaction in the said account either by the defendant's standard of operation or by any legal parameter. The Claimant averred that the customer instructed him to hand over the sum of 100, 000.00 (One hundred thousand naira only) to Mr Daniel Etuk, a colleague in another branch who the claimant got to know was the relative of the customer. That the issue of breach of cash gift policy does not arise because the customer never disclosed that the money was a gift or for any specific purpose.
[15] The Claimant stated that he was not suspended in accordance with clause 16.2.3 of the employees' hand book. He averred that the allegation of the defendant against him was purely criminal and that accounts for his arrest at the instance of the defendant before he was issued a query; and that he was dismissed by the defendant on an unproved allegation of crime and not on any form of gross misconduct.
[16] The claimant testified in support of his case. He adopted his statement on oath. It was in terms of the pleadings and he relied on his admitted documents. Under cross-examination the claimant testified that he had 12 years banking experience and that he was aware that honesty and integrity were among the core values of the Defendant bank.
Case of the Defendant
[15] The defendant’s case on the pleadings is that the one Umoren Ini (now deceased) maintained an account with the Defendant with Account No. 30072624 during his lifetime, with a sole signatory mandate. The deceased opened the account in 2001 and operated same as the sole signatory until his demise in February, 2020. The Defendant stated that the bank was not aware nor notified by any of, the family members of the deceased about the death of the deceased nor were any probate documents submitted to the bank. The last transaction on the deceased's account before his death was a cash withdrawal of N400, 000 (four Hundred Thousand Naira) only on the 24th August, 2015 leaving, a balance of N78,395,251.28 (Seventy Eight Million, Three Hundred and Ninety-five Thousand. Two Hundred and Fifty-One Naira, Twenty-Eight Kobo) only.
[16] The defendant stated that one Lawrence Umoren who is a brother to the account holder (the deceased) had approached a staff of the Bank, one Mr Daniel Etuk to assist him change the mandate on the deceased account. Mr Daniel Etuk submitted some documents to effect the mandate change and negligently processed same without the legal department of the bank for relevant due diligence on the authenticity of the said legal documents. The Defendant stated that further to the unauthorised and unverified change of the mandate instructions affected on the deceased account, the said Lawrence Umoren visited the Claimant's branch at Ikot Ekpene Market Branch, Ikot Ekpene, Akwa Ibom State to do a transfer of N14,000,000 (Fourteen Million Naira) only from the deceased account to a Fidelity Bank Account Number 5600283928, with the name Timoselved Integrated Services and that the both transactions were approved by the Claimant. The Defendant averred that the Claimant was grossly negligent in approving the financial transactions on the said account.
[17] The defendant stated that collecting a cash gift of N100, 000 (One Hundred Thousand Naira) from a "customer” on behalf of his colleague is a grave breach of the bank's gift policy. The Claimant was complicit in this breach of policy as he facilitated same even though he knew or ought to know that the cash gift was in breach of the bank's policy. The Defendant further averred that the entire circumstances surrounding the transaction, (particularly, the cash gift of N100,000, and payment of N900,000 into an account provided by his colleague (Daniel Etuk) ought to put a reasonable and honest banker on a red alert and thus making the exercise of caution and due diligence very compelling. The Claimant, for reasons best known to him, ignored all these red flags and authorised such huge financial transactions running into millions of naira.
[18] The defendant stated that the Claimant was issued a query dated the 10th March, 2020 and which query alleged gross misconducts bothering on gross negligence, failure to carry out due diligence before authorizing an otherwise suspicious debit transaction, and financial inducement. The Defendant averred that the Claimant responded to the query via a response dated the 10th day of March, 2020, and which response was found unsatisfactory by the management of the Defendant.
[19] The defendant stated that having concluded its internal investigations on these alleged grave breaches of the bank's policies, the Claimant was invited to appear before a Disciplinary Committee set up by the Management of the Defendant in accordance with the bank's Disciplinary Policy. The Defendant averred that it was never privy to any purported police report or confessional statements, before or during the proceedings of the Disciplinary Committee. The Defendant further averred that after considering the totality of the written and oral defence offered by the Claimant to the allegations of gross negligence against him, the management found same to be very unsatisfactory and the Claimant was consequently dismissed from the service of the Defendant for gross misconduct. And that the Claimant was dismissed on account of gross misconduct bothering on gross negligence and grave breach of the bank's policy. Contrary to the 'position of the Claimant, he was not dismissed on account of any criminal offence the bank's Disciplinary Committee has no criminal jurisdiction.
[20] The Defendant stated that the Claimant’s rather belated appeal against his summary dismissal was dismissed by the management of the Defendant for want of merit and that the summary dismissal attracts a loss of terminal benefits if any. The Defendant averred that however, following the summary dismissal of the Claimant, it computed the Claimants earned and accrued benefits up to the date of his dismissal (inclusive of the balance of salaries withheld during his suspension) alongside his indebtedness to the bank, and advised him accordingly.
[21] The Defendant stated that it has a policy of paying its employees a yearly upfront housing and furniture allowances, being advance payments, employees are required to refund the said allowances in the event that they leave the service of the bank, for any reason before the end of the year. In accordance with the policy, the claimant was paid in advance on the 2nd January, 2020, the sum of N465,530 (Four Hundred and Sixty-Five Thousand, Five Hundred and,Thirty Naira) as his 2020 annual housing and furniture allowance, and that it computed the balance of the Claimants salaries for the period of his suspension ,in the sum of N1,533,083 (less statutory deductions) along with his earned housing furniture allowances in the sum of N326,392.04, both totaling the sum of Nl,859,475.13.
[21] The Defendant stated that it also computed the Claimant’s unearned housing and furniture allowances being N310,294.58 including his outstanding indebtedness (Auto car loan) ,in the sum of N2,530,000 {Two Million, Five Hundred ,and Thirty Thousand Naira). Upon reconciliation of the Claimant's entitlements, unearned allowances, and his indebtedness to the bank, his total outstanding indebtedness to the Defendant stands at N980,819.04 (Nine Hundred and Eighty Thousand, Eight Hundred and Nineteen Naira, Four Kobo). And by its letter dated the 13th July, 2020, it advised the Claimant of the above financial details. The Defendant averred that it does not owe the Claimant any terminal benefits whatsoever, and the Claimant is at liberty to approach his Pension Fund Administrator (APT Pensions) to access his pension as provided under the Pension Reform Act, 2014.
Counterclaim
[22] The Defendant in its counter claim averred that while in the employment of the Bank, the Claimant took a car loan of N3,300, 000 (Three Million, Three Hundred Thousand Naira) from it in October 2018 and that as at July, 2020, the outstanding sum due on the car loan, interests inclusive was N2,530,000 (Two Million, Five Hundred and Thirty Thousand Naira) only, and same was communicated to the Claimant by letter dated 13th July, 2020. The Defendant/Counter Claimant averred that an important term of the loan agreement was that the Claimant is liable to pay any sum outstanding on the said loan in the event of his exit from the bank regardless of the manner of the exit.
[23] The Defendant/Counterclaimant stated that upon the reconciliation of the Claimant’s entitlements alongside his indebtedness, he was indebted to the Counter Claimant in the sum of N980,819.04 (Nine Hundred and Eighty Thousand, Eight Hundred and Nineteen Naira, Four Kobo) as at July 13th, 2020 and which sum now stood at N1,116,794.15 (One Million, One Hundred and Sixteen Thousand, Seven Hundred and Ninety-Four Naira, Fifteen Kobo) only as at 8th October, 2021. The Defendant/Counterclaimant averred that the Claimant has refused to settle the sums outstanding on the loan despite its repeated demand for same.
[27] In his defence to the counter claim, the Claimant stated that whilst he agrees to taking a car loan with the defendant, the period of repayment of the said car loan is five years and that the car loan was taken in 2018, and he dismissed him from employment in June 2020. He averred that he dutifully paid and serviced the car loan under the agreement as the loan repayment was continuously deducted from his salary account. He denied owing the defendant/counterclaimant the sum of N1,116, 794.15k (One million, one hundred and sixteen thousand, seven hundred and ninety four naira, fifteen kobo).
Final Address
[28] The Defendant’s final address is dated 24th June, 2022 and is filed on the 4th July 2022. The Claimant’s final address is dated and filed on the 18th May 2022. The Defendant filed a reply on points of law on 11th May, 2023. Parties adopted their respective addresses and made oral submissions.
Learned counsel to the Defendant submitted six issues for determination:
1. Whether the Claimant’s testimony has any probative value capable of establishing his claims.
2. Whether having regards to the totality of evidence before the court, the Claimant is validly dismissed from the service of the Defendant.
3. Whether it is the law that conviction by a court of law is a sinequanon to summary dismissal for gross misconduct.
4. Whether termination or dismissal in ordinary master-servant relationship can be null and void.
5. Whether the Claimant has proved his case to be entitled to the reliefs sought.
6. Whether the Counter Claimant has proved its Counter Claim.
[28] In arguing issue one, Learned Counsel argued that the Claimant’s witness in person of the Claimant herself is not a witness of truth as he lied on oath before the court. He argued that one of the ways of discrediting a witness as provided for in Section 233 of the Evidence Act is by presentation of a former statement made by such a witness.He submitted that it was evident that the Claimant isn’t a credible witness, his previous statement in relation to a crucial fact in issue contradicts his current statement on oath. He relied on the cases of Osokoya v. Onigemo (2017) LPELR-42730(CA), Chidi v. Ilombu (2018) LPELR-44759(CA) In urging the Court to discountenance with the Evidence of the Claimant as the Claimant is not a witness of truth and as such, his evidence is not credible.
[29] In arguing issue two, Learned Counsel argued that it is a trite position of the law that in an action for wrongful dismissal of appointment, like the case at hand the main issue calling for determination or in contention is whether the dismissal is in accordance with the terms and conditions of the contract of employment between the parties. And that the relevant document to be examined is Exhibit D3 (The Defendant’s Employee Handbook). Paragraph 16.2.4 of Exhibit D3 is instructive on whether an employee can be summarily dismissed or not, he also reproduced the provision of the handbook that provides for disciplinary procedure. Counsel therefore submitted that from the totality of evidence adduced before this honourable court, it is safe to say that the Defendant fully complied with the disciplinary procedure as enshrined in the Defendant’s Employee Handbook (Exhibit D3). He urged the Court to so hold.
We urge your lordship to so hold.
[30] In arguing issue three, Learned Counsel argued that it is now trite law that where an employee is alleged of misconduct having criminal implications, the hands of the employer is not tied in commencing disciplinary proceedings against such employee. The employer only needs to confine itself to matters over which it had jurisdiction. The allegation against the Claimant might have criminal implications, but the Defendant in the instant case only made a finding on gross negligence, and breach of a Standard Banking Procedures by a senior banking officer of his caliber. He relied on the cases of Arinze V First Bank of Nigeria (2004) 5 SC (Pt. 1) 60, Ansambe v Bank of the North Ltd (2005) 8 NWLR pt. 928, pg 650. He submitted that from the above authorities, it has long been established that the Defendant need not wait for the outcome of a conviction by a court of law before dismissing the Claimant from its employment.
[31] In arguing issue four, Learned Counsel argued that the relationship between the Claimant and the Defendant in the instant case is that of an ordinary master-servant relationship and same can be brought to an end by complying with the terms governing the relationship. He relied on the case of Abolo v. UBN Plc (2016) 66 N.L.L.R (pt. 235) pg. 292 . Relying also on the case of Mr. Henry Eyo V. NTA-Star TV Network Limited (Supra), he submitted that the kind of employment relationship between the Claimant and the Defendant, the dismissal of the Claimant’s employment cannot be held to be illegal, unlawful or null and void.
[32] In arguing issue five, Learned Counsel submitted that the Claimant has not been able to establish facts and lead credible evidence entitling him to the grant of the reliefs sought, consequently Counsel urged the court to discountenance with this relief.
[33] In arguing issue six, Counsel submitted that the Counter Claimant has proved its counter claim and is entitled to grant of same. The Counter Claimant’s counter claim is premised on a car loan taken by the Defendant to counter claim while in the employment of the Counter Claimant. Counsel argued that it is trite law that parties are bound by the terms of contract they willingly and voluntarily go into. He relied on the case of A.B.C (Transport Co.) LTD v. Omotoye (2019) LPELR-47829(SC). He submitted that the Counter Claimant has successfully established its claim to the counter Claim.
[34] Learned counsel to the claimant submitted five issues for determination:
(i) Whether the material contradictions in the evidence of the sole witness of the defendant has not discredited the totality of his evidence.
(ii) Whether from the totality of the evidence before the court, the basis for the Claimant's dismissal does not border on fraud or allegation of crime.
(iii) Whether from the totality of the evidence before this court, the defendant was able to evince any proven case of breach of the policies of the defendant, negligence or gross misconduct against the Claimant.
(iv) Whether the Claimant has not proven his case and entitled to the judgment of this court.
(v) Whether the defendant has proven his counter claim against the Claimant.
[35] Learned Counsel in arguing issue one submitted that the defendant's counsel finds no bearing with the evidence led by the Claimant. Instead of addressing the substance of the matter before the court which borders on whether there was any fraudulent act on the account in question and whether there was any complaint either on the part of any signatory to the account or any of the relatives of the account holder that there was any irregularity perpetrated on the account, chose to chase shadows. He argued that the evidence of the Claimant as can be seen from the extracted portion does not possess any form of contradiction with the Claimant's answer to query. He submitted that the evidence of the Claimant clearly stated that the customer indicated that he wanted to deposit the sum of # 900000.00 out of the sum of # 1000, 000.00(One million naira only) withdrawn by him into an account no:2033776060- DICK DAN. And therefore submitted that there is no iota of contradiction in the evidence of the Claimant. All the arguments canvassed by the defendant's counsel in this regard are misconceived and he urged the Court to so hold. He relied on the case of UBA Plc Venugo Petroleum Ltd And Another (2022) LPELR-58148 at page 28, paragraph C-F.
[36] Learned Counsel in arguing issue two argued that in the first breadth, it is important to note that the material that would have assisted the court in determining the basis for the dismissal of the Claimant would have simply been a recourse to the investigative panel's report, however it is very clear that the defendant who refused to share a copy of the panel's report with the Claimant decided to conceal same. He argued that by refusing to produce a copy of the panel's report in this proceeding it is settled that this court can presume that if the panel's report were produced it would have been unfavorable to the defendant. He therefore urged the Court to hold that by proceeding to dismiss the Claimant on the basis of the allegation of fraud leveled against the Claimant without waiting for the police to charge the claimant and therein secure a conviction, the defendant jumped the gun infringed on the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and accordingly the recommendation made by the investigative panel and the consequential dismissal of the Claimant by the defendant is a unlawful.
[37] In arguing issue three, Learned Counsel argued that in a bid to extricate the defendant from the obvious implication of summary dismissal of an employee on an allegation of crime without a verdict of a court of law, the defendant has made a strenuous effort to situate other grounds as basis for the dismissal of the Claimant. Counsel submitted that it is instructive to note that the defendant could not establish any breach of duty of care on the part of the Claimant and it is therefore very clear that the defendant could not prove any case of breach of duty of care on the part of the Claimant.
[38] In arguing issue four, Learned Counsel submitted that from all that has been canvassed in this address, the Claimant has abundantly proved his claims and entitled to the reliefs sought. Relying on the case of Savanah Bank (Nig) Plc Vfakokun(2002)1 NWLR PART 749 P. 544 AT 562, it was held that an employer who has wrongfully dismissed an employee has by implication put an end to his contract of service. The employee is therefore entitled to damages for breach of contract. It is the Counsel’s submission that the Claimant’s dismissal by the defendant is not just wrongful but clearly unlawful.
[39] In the Defendant’s reply on points of law submitted that the authority of Nwadiugwu v IGP 2015 LPELR 26027 cited by the Claimant relates to compelling a person to sign a cheque under the directive of the police, hence the case can be distinguished from the instant case. The Defendant reiterates its position that an employer may validly discipline his employee even where the alleged misconducts have some criminal implications. He submitted therefore that the authorities cited by the Defendant included 3 Supreme Court cases, one of which was Eze v Spring Bank Plc decided in 2011 and reported in (2011) 18 NWLR (pt. 1278) 113. He submitted that the authorities cited by the Defendant are not only Supreme Court authorities, the Supreme Court decision in Eze v Spring Bank (supra) is also later in time. The law is also trite that where there are conflicting decisions of the Supreme Court, the later in time is binding. He relied on the case of Osakwe v. Federal College of Education (2010) 3 SCNJ P. 529 at 546. He urged the Court to dismiss the claimant's suit with substantial cost as same lacks merit.
Decision
[40] I have carefully considered the processes filed, the evidence adduced, written submissions and authorities cited by the parties. The law is settled that when an employee complains that his employment has been unlawfully terminated, he has the burden not only to place before the court the terms and conditions of his employment but the manner in which the said terms or conditions were breached by the employer. See Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 20, Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Ltd v. Iserhienrhien [2001] LPELR–2471(SC); [2001] 6 NWLR (Pt. 710) 660, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589. It is also the law that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, see Section 131 & 132 of the Evidence Act 2011, Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255. The claimant has placed before the court his letter of employment (exhibit C1), Employee handbook (exhibit C2), letter of suspension (exhibit C3), dismissal letter (exhibit C4), letter of appeal (exhibit C5), mandate card (exhibit C7).
[41] The Defendant who has also filed a counter claim has placed before the Court the query issued to the Claimant (exhibit D1), reply to the query (exhibit D2), employee handbook (exhibit D3), dismissal letter (exhibit D4), bank statements (exhibits D5, D6, D8), exit computation (exhibit D7), application for car loan (exhibit D9 and D14), letter of offer of credit facility (exhibit D10), staff loan agreement form (D13).
[42] The issues that arise for determination are as follows:
1. Whether a conviction by a Court is sine qua non before summary dismissal for gross misconduct?
2. Whether the Defendant has justified the reason it summarily dismissed the Claimant?
3. Whether on the pleadings and evidence the Claimant ought to be entitled to the reliefs he is seeking?
4. Whether the Defendant has proved the counter claim?
[43] It is the law that an employer is not bound to give any reason for terminating the appointment of its employee but where the employer gives a reason, the law imposes on him a duty to establish the reason to the satisfaction of the court. See Olatunbosin v NISER Council [1988] 1 NSCC 1025; [1988] 3 NWLR (Pt 80) 25. The Defendant’s letter dismissing the Claimant is reproduced thus:
June 26, 2020
Isokariari, Mr. Soala Melvin (SN021991)
C/O Cluster Operations Service Manager, South/ South BSG
Dear Soala,
SUMMARY DISMISSAL FOR GROSS MISCONDUCT
This letter serves to advise that you are summarily dismissed from this organization with immediate effect.
Please take note and be informed accordingly.
Yours Sincerely,
FOR: FIRST BANK OF NIGERIA LIMITED
Rosie EBE-ARTHUR
GROUP HEAD, HUMAN CAPITAL MANAGEMENT & DEVELOPMENT.
[44] Having given the reason of gross misconduct, the onus is on the Defendant to establish that the Claimant was indeed guilty of the allegation to the satisfaction of the court. The law is that he who asserts must prove, see sections 131 (1) & (2) and 132 of the Evidence Act 2011, Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The evidence reveals that the Claimant was queried (exhibit D1) on March 10, 2020 for fraudulent fund transfer of N14M. In the query, the Claimant was asked why he did not apply due diligence before authorizing the said transactions; and he was asked for his comments on the statement made by Mr Michael Umoren during the investigation that he gave him (the Claimant) N1Million which was the cash withdrawal on the same day the funds transfer of N14 Million was done to facilitate the transaction. The Claimant replied the query (exhibit D2) on the same day March 10, 2020. He stated in his reply:
Mr Michael Umoren gave me One Million Naira he withdrew and the money was deposited in another account given to me by a staff Daniel Etuk who sent the Michael Umoren to me for assistance after introducing him as a relative. I was asked to keep N100,000 for Daniel which I did.
[45] The Defendant being dissatisfied with the Claimant’s response placed him on immediate suspension from duty that same day March 10, 2020 pending the determination of the case. He was directed to sign the attendance register daily at the Branch as a condition to be paid half his basic salary, full housing, transport and utility. The Defendant as employer exercised its powers of discipline. The Claimant testified that he appeared before the disciplinary committee virtually on the 14th May 2020 where he was questioned and asked about the incident. His evidence is also that his response to the disciplinary committee was as contained in his reply to the query. Now, his response to the query was not acceptable to the Defendant and that what was why he was made to appear before the disciplinary panel.
[46] The Claimant has alleged that he was not given a fair hearing in the process leading to his dismissal. Fair hearing is opportunity. The Supreme Court in Imonikhe v Unity Bank Plc [2011] 4 SC (Pt 1) 104 at 135; (2011) 12 NWLR (Pt 1262) 624 has held that accusing an employee of misconduct by way of a query and the employee answers it before a decision is taken satisfies the requirement of fair hearing. From the evidence before the court, the Claimant was queried, he responded to the query, and he appeared before the disciplinary committee before the decision to dismiss him was made by the Defendant. I hold that the Claimant was given a fair hearing.
[46] The Claimant was thereafter summarily dismissed on 26th June 2020 for gross misconduct. The Defendant’s employee handbook (exhibit D3) provides in Clause 16.2.4 as follows:
An employee may be summarily dismissed for certain acts of gross misconduct or negligence.
Such acts include:
· Wilful disobedience of a lawful order or serious negligence;
· Deriving any benefit in the course of official duties, which places the employee in such a position that his/her personal interest and his/her duty to the employer or any customer of the Bank are in conflict (Conflict of interest);
· Failure to report promptly any irregularity on the part of any other employee or non-employee after gaining knowledge of such irregularity (concealment of vital information).
No notice shall be given in the case of summary dismissal. In the event of summary dismissal, all terminal benefits (if any) shall be forfeited to the Bank. If the terminal benefit (if any) paid cannot take care of his outstanding liability to the Bank, the Bank shall be free to proceed against the employee to recover the outstanding balance.
[47] The Claimant is contending that his dismissal is based on an allegation of crime by the Defendant, and must first be charged to Court and a verdict given before he can be disciplined under the contract of service and summarily dismissed. The Claimant was summarily dismissed for gross misconduct and this is provided in clause 16.2.4 of the Employee handbook as seen above. It is not a requirement of the law that before an employer summarily dismisses his employee, the employee must be tried before a Court of law where the accusation against him is for gross misconduct bordering on criminality. See Eze v Spring Bank Plc (2011) 18 NWLR (Pt 1278) 113, Arinze v First Bank of Nigeria (2004) 5 SC (Pt 1) 60, Billie v Multi-Links Telecom Ltd (2017) LPELR-41862 (CA), Yusuf v Union Bank Plc [1996] 6 NWLR (Pt 457) 632, Imonikhe v Unity Bank Plc supra. From the contents of the query and the letter of dismissal, it is clear that the Claimant was not dismissed on the basis that he committed a criminal offence. All the Claimant’s arguments in that regard therefore go to no issue. He was dismissed for gross misconduct bordering on negligence, conflict of interest, and his failure to report an irregularity.
[48] From the totality of the evidence, I am satisfied that the Defendant has justified the reason it summarily dismissed the Claimant. The Claimant’s misconduct is grave and weighty; it has eroded and undermined the confidence reposed in him by the Defendant to carry out his duty. I hold that the dismissal of the Claimant is in accordance with his contract of employment and it is lawful. See Lawrence Azenobor v Bayero University Kano [2009] 17 NWLR (Pt 1169) 96 at 108, Borishade v NBN [2007] 1NWLR (Pt 1015) 217, Ajayi v Texaco Nigeria Ltd [1987] 3 NWLR 62. Consequently, the Claimant is not entitled to any terminal benefits, having forfeited same to the Defendant Bank following his dismissal.
[49] Consequently, the declarations the Claimant is seeking in reliefs (i), (ii), and (iii) must fail and they are hereby refused. The main reliefs having failed, the ancillary orders (iv) to (x) must also fail having no foundation and for lack of proof, see Nwaogu v Atuma [2013] 11 NWLR 117 at 156 para D.
[50] The Claimant’s case is hereby dismissed. Costs of N100,000.00 awarded the Defendant.
[51] On the counter claim, the Claimant/Defendant to the counter claim has admitted that the Defendant/Counter Claimant granted him a car loan of N3,300,000.00 to be repaid over a period of 5 years; and the repayment deductions were made from his salary as agreed. There is no burden in law to prove any facts admitted as they are regarded as established, see section 125 of the Evidence Act 2011, Alagbe v Abimbola [1978] 2 SC 39, Tijani Jolasun v Napoleon Bamgboye [2010] 18 NWLR (Pt 1225) 285. The loan agreement (exhibit D13) provides that interest repayable shall be at the rate of 5% per annum over the Central Bank of Nigeria minimum rediscount rate but never less than 5% per annum; and in the event of his employment being terminated before the loan is fully repaid any sum due to him shall automatically be applied in repaying or reducing the loan. Parties are bound by the terms of their agreement, see ABC Transport Co Ltd v Omotoye (2019) LPELR-47829 (SC). The Claimant also in the Staff Welfare Loan Undertaking (exhibit D11) undertook to immediately repay the outstanding balance on the loan upon termination of his employment.
[52] The Defendant/Counter Claimant has from the evidence exit computation (exhibit D7) proved the claimant’s outstanding indebtedness, and has established the counter claim. The Claimant is to pay the sum of N1,116,794.15 (One Million, One Hundred and Sixteen Thousand, Seven Hundred and Ninety-Four Naira, Fifteen Kobo) being his outstanding indebtedness on the car loan facility within 30 days. Thereafter, the sum will attract simple interest at the rate of 10% per annum.
[53] The counter claim succeeds with costs of N100,000.00 awarded the Defendant/ Counter Claimant.
Judgement is entered accordingly.
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Hon Justice O.A.Obaseki-Osaghae