IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

  Date: Tuesday, 22nd October 2024                                                            

SUIT NO. NICN/LA/523/2019

 

BETWEEN

 

      ODUNTAN TEMITOPE ADEBAMBO                                            …                    CLAIMANT

 

AND

 

      POLARIS BANK LIMITED                                                             …                    DEFENDANT

 

JUDGMENT

 

1.            The Claimant commenced this suit on 18th October 2019 and sought the following reliefs:

 

a.    A declaration that the dismissal of the Claimant from his employment by the Defendant for gross misconduct vide a letter of dismissal dated 17th January 2019 is wrongful, malicious, null and void.

 

b.    A declaration that the dismissal of the Claimant from his employment by the

Defendant for gross misconduct vide a letter of dismissal dated 17th January 2019 which stated that an allegation of gross misconduct has been established against the Claimant by the Disciplinary Committee of the Defendant in respect of the case of “Engaging in Parallel Banking Activities, Acceptance of Brokerage and Commissions, Facilitation of Illegal/Unauthorized FX Trading, Money Laundering and Other Transactions in Violation of Statutory/Regulatory Provisions” – specific offences or allegations over which the Claimant was not queried, or for which the Claimant was not tried by the Defendant [or its said Disciplinary Committee] is wrongful, illegal, unconstitutional, null and void.

 

c.    A declaration that the dismissal of the Claimant from his employment by the Defendant for gross misconduct [and offence particulars thereof, as herein stated] vide a letter of dismissal dated 17th January 2019 when the Defendant [or its Disciplinary Committee] did not accuse or try the Claimant of, and for gross misconduct and particulars thereof [“Engaging in Parallel Banking Activities, Acceptance of Brokerage and Commissions, Facilitation of Illegal/Unauthorized FX Trading, Money Laundering and Other Transactions in Violation of Statutory/Regulatory Provisions as provided by Offences XVII under the Sanctions/Disciplinary Grid of the Defendant’s Employee’s Handbook 2019] is wrongful, illegal, unconstitutional, null and void.

 

d.    A declaration that the establishment of the guilt and eventual dismissal of the Claimant by the Defendant without availing him the opportunity to be heard by a Court of competent jurisdiction in respect of the allegations of crimes made against him as stipulated by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended, is unconstitutional, illegal, null and void.

 

e.    An order of the Honourable Court setting aside the said letter of dismissal of the Claimant dated 17th January 2019.  

 

f.     An order directing the Defendant to pay the Claimant all his salaries, allowances, emoluments, or entitlements from the said date of the wrongful dismissal from his employment up to now.

 

g.    The sum of ten million naira [N10,000,000.00] being exemplary damages against the Defendant for the wrongful dismissal of the Claimant and the cost of this action.

 

2.            Upon receipt of the originating process, Defendant filed a conditional memorandum of appearance, a statement of defence and counterclaim on 16th December 2019 and subsequently filed a motion on notice to regularise the processes on 10th January 2020. The conditional memorandum of appearance, statement of defence and counterclaim were deemed properly filed and served on 13th January 2020. The Claimant filed his reply to the statement of defence and defence to the counterclaim on 16th January 2020, and another reply on 27th November 2020. Defendant filed an amended statement of defence and counterclaim on 26th March 2021 based on the order of the Court dated 15th March 2021, and counterclaimed against the Claimant for:

 

a.    N19,484,392.80 [nineteen million four hundred and eighty-four thousand, three hundred and ninety two naira, eighty kobo] only being the loan advanced to the Claimant and all accrued interest thereon until the day of judgment.

 

b.    Post-judgement interest at the rate of 25% per month until the judgment debt is liquidated.

 

c.    Cost of the action.

 

3.            The Claimant filed a reply to the amended statement of defence and defence to the counterclaim on 23rd June 2021. On 4th May 2022, the Claimant filed an amended reply to statement of defence and defence to the counterclaim together with a motion on notice to regularise the processes. The amended reply to the statement of defence and defence to counterclaim and accompanying processes were deemed properly filed and served on 3rd November 2022. Even though the Claimant was sworn on 15th November 2021, the trial could not continue because of an irregularity in the Claimant’s second witness deposition. The suit was, by consent of the parties, adjourned to 3rd February 2022. At the resumed hearing on 3rd February 2022, the Claimant and his counsel were absent. On Defendant’s counsel’s application, the Claimant’s action was struck out and leave was granted to Defendant to prove the counterclaim. Defendant’s witness, Mr. Paul Animashawun, adopted his statement on oath dated 26th March 2021 and tendered 9 documents which were marked as Exhibits D1 - D9. At that point, learned counsel for the Claimant announced his appearance, but could not cross-examine Defendant’s witness, and at his request, the case was adjourned to 11th May 2022 for continuation of trial. On 5th April 2022, learned counsel for the Claimant argued two applications, one restoring the suit to the general cause-list, and the second to file an additional witness deposition, which were granted as prayed. The Court did not sit on 11th May 2022. So, the case was adjourned administratively to 25th July 2022, and then to 3rd November 2022. Trial could not proceed on 3rd November 2022 because of the need to first cross-examine Defendant’s witness before recalling the Claimant. The case was adjourned at the Claimant’s instance to 1st December 2022, and then to 8th February 2023. At the resumed hearing on 8th February 2023, Defendant’s witness was cross-examined and re-examined. The Claimant also testified, tendered 20 exhibits subject to Defendant’s right to object to admissibility in its final written address and was cross-examined. Parties exchanged final written addresses which their counsel adopted on 26th July 2024 and the matter was set down for judgment.

 

           Facts of the case

 

4.  The facts of the case as gleaned from the statement of facts is that the Claimant was Defendant’s employee until 17th January 2019 when he was dismissed. According to him, on 16th October 2018, the EFCC invited him as the Branch Manager of the Adeola Hopewell Branch to attend an interview regarding a transaction with TOF Energy Limited, one of Defendant’s customers, on receipt of US$4,920,305.00 into the account of TOF Energy Ltd which was owned and managed by one Jyde Aremu Adelakun. The EFCC investigation revealed that the Claimant was not involved in any fraudulent dealings with TOF Energy Ltd and Jyde Aremu Adelakun and was not charged with any crime. Nonetheless, he was queried by Defendant concerning the transaction and the EFCC invitation, and he answered the query. The Claimant subsequently appeared before Defendant’s disciplinary committee. The Claimant averred that the query and disciplinary process was for him to explain what transpired at the Economic and Financial Crimes Commission and his role in the transaction. However, on 17th January 2019, he was dismissed for gross misconduct in respect of offences he was not tried for. Therefore, he wrote to the Group Managing Director appealing against the decision, which appeal was refused on the ground that the appeal did not raise any point of law, procedure or policy. Based on the refusal, he wrote to Defendant’s Managing Director through the Chairman of the Appeal Disciplinary Committee. The appeal was again dismissed, hence this suit. Defendant denied any wrongdoing and counterclaimed for the Claimant’s outstanding obligations to it.

 

             Addresses of parties

 

5.                Learned counsel for Defendant raised four issues for determination in the final written address dated 28th February 2023 but filed on 1st March 2023:

 

i.           Whether the Defendant followed due process in determining the allegations made against the Claimant.

 

ii.         Whether the dismissal of the Claimant for gross misconduct vide a letter of dismissal dated 17th January 2019 is wrongful, malicious, null and void.

 

iii.        Whether in the circumstances of this case, the Claimant was granted fair hearing in the exercise of the Defendant’s right to dismiss him from his [sic, its] employment in accordance with Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

 

iv.        Whether the Claimant is indebted to the Defendant [for] the facility granted in the course of his employment.

 

6.                On issue one, learned counsel referred to Ifeta v. Shell Petroleum Development Company Ltd [2006] 7 MJSC 12 at 149 and Ajuzie v. First Bank of Nigeria Plc [2016] LPELR-40459[CA], among others, and argued that to determine whether due process was followed in determining the Claimant’s guilt and in his dismissal, the Court must consider the contract of service and the employee handbook, Exhibit D3, which prescribe the disciplinary procedure. Counsel listed the six disciplinary/investigative bodies, referred to Exhibits D1, 18, D2, D4, D5, 8 and 9, and the procedure followed in dismissing the Claimant, and argued that the disciplinary process complied with Defendant’s disciplinary policy. Learned counsel submits that having shown that Defendant complied with the disciplinary policy, the Court is to be guided by the policy and not look outside the policy in determining compliance resting on Layade v. Panalpina World Transport Nig. Ltd [1996] NWLR [Pt 456] 544. Counsel contended that, contrary to the Claimant’s averment that he ought to be tried in a Court of law before his dismissal for gross misconduct, where fraud is alleged in a general

sense, it is not the same as fraud cognizable under criminal law and the employee does not have to be prosecuted and found guilty before his dismissal, resting on Imonikhe v. Unity Bank Plc [2011] LPELR-1503[SC]. It was submitted that fraud was used in the general sense in Defendant’s disciplinary policy and there was no need to wait for the Claimant’s conviction before dismissing him. Counsel argued further, on the authority of National Judicial Council & Ors v. Senlong & Ors [2010] LPELR4582[CA], that what is required of the employer before summarily dismissing the employee is to accord the employee a fair hearing which was observed in the instant case. Therefore, learned counsel submits that Defendant followed due process in determining the allegations of gross misconduct against the Claimant.

 

7.                On issue two, learned counsel submits that before an employer can exercise the right of summary dismissal, the conditions must be expressed in the employment contract. The case of First Bank of Nigeria Plc v. Akanji [2017] LPELR-43555[CA] was cited in support. Learned counsel referred to clause XVII of Defendant’s sanctions grid and argued that the prescribed penalty is dismissal. Counsel also referred to the employment letter, Exhibit 6, which incorporates the employee handbook that stipulates the disciplinary policy and argued that where the misconduct borders on “direct involvement, gross negligence or acute supervisory lapses resulting to fraud, forgery or fraudulent related activities and other form of significant losses” as in the instant case, the sanctions range from recovery of the financial loss to dismissal, and Defendant has the discretion to determine appropriate sanction. Reliance was placed on the cases of Olarewaju v. Afribank Nig. Plc [2001] LPELR-2573[SC] and Gujba v. First Bank of Nigeria Plc & Anor [2011] LPELR-8971[CA]. Therefore, the learned counsel submits that the Claimant’s dismissal is valid.

 

8.                On issue three, counsel submits that it is not necessary for the employee to be tried in a Court of law where the misconduct borders on commission of a crime before his dismissal, but the Court must be satisfied that the employee was given a fair hearing, resting on National Judicial Council & Ors v. Senlong & Ors [supra], First Bank of Nigeria Plc v. Akanji [supra] and Imonikhe v. Unity Bank Plc [supra]. It was contended that the Claimant was issued a query which he answered, and subsequently appeared before the disciplinary committee, thus satisfying the principles of fair hearing. 

 

9.                Arguing issue four, learned counsel referred to paragraph 14 of the statement of defence and counterclaim, paragraphs 29, 31 and 34 of the reply and defence to the counterclaim, wherein the Claimant admitted that he took N26,820,000 loan from Defendant, N13,404,282.36 was deducted from his salary before his dismissal in 2019 leaving a balance of N13,415,717.64, and submits that a fact admitted requires no further proof, resting on Amah v. Amah [2016] LPELR-41087[CA] and Western Publishing Company Ltd & Anor v. Fayemi [2017] 13 NWLR 218 at 298 – 299. The Court was urged to enter judgment for Defendant for the admitted sum of N13,415,717.64. In concluding, learned counsel submits that the Claimant’s dismissal is valid, and the Claimant is indebted to Defendant, and urged the Court to enter judgment for Defendant with interest and dismiss the Claimant’s case in its entirety.

 

10.             Learned counsel for the Claimant also nominated four issues for determination in the final written address dated and filed on 27th June 2023:

 

a.    Whether, at the trial of this suit, the totality of the evidence adduced and relied upon by the Defendant, through its sole witness against the Claimant’s case, and in proof of its counterclaim against the Claimant, was admissible in law.

 

b.    Whether the Claimant’s dismissal was not unlawful and wrongful and in breach of the principle of fair hearing.

 

c.    Whether the Claimant is not entitled to succeed in his claims against the Defendant, including the exemplary damages being claimed.

 

d.    Whether the Defendant is entitled, as per its counterclaim, to the sum being claimed as loan advanced to the Claimant and all the alleged accrued interests thereon.

 

11.             Arguing the first issue, learned counsel submits that if the Court finds that Defendant’s witness evidence is inadmissible in law, then the suit becomes undefended rendering the Claimant’s reliefs grantable and the counterclaim liable to be dismissed. Learned counsel referred to paragraphs 1, 2, 7 to 11 of Defendant’s witness deposition and argued that the witness gave evidence on matters which were not within his personal knowledge but did not disclose the source of his information in breach of the Evidence Act. Counsel distinguished the usual banker’s record of banking business transaction from the testimony of Defendant’s witness which are in relation to the Claimant’s employment, and can only be given by a witness who had personal knowledge of the events. Therefore, learned counsel submits that the totality of Defendant’s witness evidence is hearsay resting on Sections 37, 38, 83[1] and [2] and 126 of the Evidence Act, 2011. Relying on the cases of Flash Fixed Odd Ltd v. Akatugba [2001] 9 NWLR [Pt 717] 46 and Oloruntoki v. Johnson [1990] 6 NWLR [Pt 158] 600 among others, counsel submits that the general rule is that a document must be tendered by the maker so that he can be cross-examined on it, and where the document is not tendered by the maker, appropriate foundation must be laid which was not done in the instant case rendering the exhibits inadmissible. The case of A.G. Oyo State v. Fairlakes Hotels [1988] 5 NWLR [Pt 921] [sic, [1989] 5 NWLR [Pt 121] 255] was cited in support. Counsel noted that given that he got to the Court late when Defendant’s witness gave evidence, he could not object to the admissibility of Defendant’s witness deposition and the documents, and urged the Court to expunge the inadmissible evidence. Counsel argued further that even if the documents are admissible, the Court should not attach any weight to them noting that hearsay evidence is devoid of probative value, calling in aid the cases of Orji v. Ugochukwu [2009] 14 NWLR [Pt 1161] 207, Buhari v. INEC [2008] 19 NWLR [Pt 1120] 246 at 391392, Omisore v. Aregbesola [2015] 15 NWLR [Pt 1482] 205 and Kukah v. PDP [2014] 15 NWLR [Pt 1430] 374. Based on the foregoing, counsel urged the Court to expunge Exhibits D1 and D2 from its records, and in doing so, learned counsel further urged the Court to hold that unlike a report of an investigating Police Officer on facts gathered during investigation which is not hearsay and admissible, the testimony of Defendant’s witness and the documents he tendered are undiluted hearsay.  

 

12.             On the second issue, learned counsel submits that the Claimant’s dismissal was both wrongful and unlawful because it breached the terms of his employment and his fundamental right to a fair hearing under Section 36 of the Constitution. Learned counsel argued that while under the common law the employer could hire and fire the employee for good or bad reasons, this Court acting under Section 254C of the 1999 Constitution and Section 7[6] of the National Industrial Court Act, 2006, has held that doing so constitutes an unfair labour practice. Counsel argued that an employee must be heard on the allegation against him before his dismissal, especially when the allegation involves a crime. It was submitted that the right to a fair hearing, as entrenched in the Constitution, overrides all contrary provisions in any law of the land resting on Kotoye v. CBN [1989] 1 NWLR [Pt 419]. Relying on Yussuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR [Pt 457] 632, counsel submits that to satisfy the rule of fair hearing, a person most likely to be affected by a disciplinary proceeding must be given adequate notice of the allegation against him to enable him defend himself. Counsel referred to Exhibits D1, 18, D2 and D5, and contends that Exhibit D1 was not a query and the letter inviting the Claimant to disciplinary panel did not specify the allegations contained in the dismissal letter, which he only became aware of after receipt of the dismissal letter. It was argued that Exhibits D1 and D2 did not contain any accusations against the Claimant, and that the Claimant in several paragraphs of his pleadings stated that the email inviting him to the disciplinary panel did not contain any accusations against him and gave Defendant notice to produce it, but Defendant failed to do so, and the Claimant could not produce his copy of the email because he was logged out of Defendant’s email system. Learned counsel invited the Court to scrutinize the email inviting the Claimant to the disciplinary panel which was not listed or frontloaded by Defendant but nevertheless was tendered by Defendant at the trial, and submits that the exhibit was fabricated to mislead the Court. Counsel detailed contradictions and irregularities in the document and submits that the document was neither signed nor dated and therefore lacks evidential value, relying on Ojo v. Adejobi [1978] 3 SC 65 and A.G. Abia State v. Agharanya [1991] 6 NWLR [Pt 607] 362 at 371. Learned counsel argued, assuming without conceding, that Exhibit 18 was not forged, the allegations therein are different from the allegations for which the Claimant was dismissed. Learned counsel juxtaposed the findings and recommendations of the disciplinary committee, Exhibit D2, with the dismissal letter, Exhibit D5, and argued that the allegations are dissimilar and concluded that Exhibit 18 is an afterthought generated during the pendency of this suit to give Defendant an undue advantage. Counsel submits that Defendant refused to produce the record of proceedings of the disciplinary committee because it would be at variance with Exhibit 18 and the dismissal letter. It was argued that the onus is on Defendant to prove that the Claimant was presented with the alleged offences which it did not discharge. Counsel also argued that the allegation of money laundering levelled against the Claimant was not proved before his dismissal in breach of Section 36 [1] of the 1999 Constitution. Learned counsel contended that proxy transaction does not violate banking operational policy and it is not an offence in the staff handbook, and the Claimant did not authorise or carry out any proxy transaction, and receiving a gift is not an offence if it is declared, which the Claimant did relying on Rule 1[c] page 19 of the employee handbook. Counsel argued that the disciplinary grid on page 103 of the employee handbook was wrongly applied to the Claimant. Counsel also argued that Defendant’s disciplinary process is in three stages, investigation, disciplinary committee, and disciplinary appeal committee, as contained at pages 107-108 of the employee handbook, which was not complied with as there is no evidence that the investigation was carried out, and the Claimant’s dismissal ought to be nullified on this ground. Based on the foregoing, learned counsel urged the Court to set aside the decision of the disciplinary committee for breach of the Claimant’s right to a fair hearing, and hold that the Claimant’s dismissal is wrongful and unlawful, calling in aid the cases of Olayioye v. Oyelaran [2019] 4 NWLR [Pt 1662] 354 and  U.T.C. [Nig.] Plc v. Peters [2022] 18 NWLR [Pt 1862] 297.

 

13.             On the third issue, learned counsel argued that when a bank worker is dismissed, he is rendered unemployable for life, and the Claimant is entitled to damages for the unlawful and wrongful termination of his employment, and exemplary damages for the emotional, financial and psychological harm caused to the Claimant, resting on P.P & P. [Nig.] Ltd v. Olaghere [2019] 2 NWLR [Pt 1657] 541, Nursing & Midwifery Council of Nigeria v. Ogu [2019] 10 NWLR [Pt 1680] 233, Muhammad v. IGP

[2019] 4 NWLR [Pt 1663] 499 and Megawealth Ltd v. SEC [2017] 13 NWLR

[Pt 1583] 345. The Court was urged to hold so. On issue four, counsel submits that Defendant is not entitled to the N13,415,717.64 claimed because repayment of the mortgage loan was tied to the Claimant’s remuneration as Defendant’s employee. Conversely, learned counsel argued that if Defendant is entitled to the counterclaim, it should be the outstanding principal and the initial 5% interest per annum. It was submitted that Defendant did not prove conversion of the mortgage loan to a commercial loan at Defendant’s prevailing commercial interest rate. Counsel argued that even though Defendant reserves the right to vary the terms and conditions of the loan, the parties must agree on the new terms. The Court was urged to refuse Defendant’s claim of N13,415,717.64 at 25% interest rate. In concluding, learned counsel urged the Court to enter judgment for the Claimant and dismiss the counterclaim.

 

14.             In the reply on points of law dated and filed on 21st September 2023, learned counsel for Defendant submits that Defendant’s witness evidence is not hearsay because, as a company, Defendant can only act through its staff and officers, and the evidence given by a staff in that circumstance is not hearsay evidence. The cases Comet S.A. [Nig.] Ltd v. Babbit [Nig.] Ltd [2011] 7 NWLR [Pt 712] 44 was cited in support. Counsel argued that the investigative panel report was created by Defendant and the question of the maker does not arise because the document was tendered by the maker through its official, calling in aid the case of Brila Energy Ltd v. FRN [2018] LPELR43926[CA]. The Court was urged to discountenance the Claimant’s argument on issue one and resolve the issue in Defendant’s favour. Relying on Ekunola v. CBN [2013] 15 NWLR [Pt 1377] 224 at 267-269, Bukar Modu Aji v. Chad Basin Development Authority & Anor [2015] LPELR-24562[SC] and The Board of Management of Federal Medical Centre, Makurdi v. Dr. Peter Ahember Kwembe [2015] LPELR-40486[CA], counsel submits that the issue of wrongful dismissal does not arise as the dismissal complied with the terms and conditions of the Claimant’s employment. Counsel also submits that the allegation that Exhibit 18 is forged goes to no issue as it was not pleaded or proved, and an allegation of forgery must be proved beyond reasonable doubt which is lacking in the instant case, resting on United Bank for Africa Plc v. Osok [2016] LPELR-40110[CA] and APC v. PDP & Ors [2015] LPELR-24587[SC]. It was contended that the Claimant was confronted with the specific offences contained in the dismissal letter and had the opportunity to respond to them, and there are no inconsistencies in the allegations in the invitation and dismissal letters. Counsel submits that in an employment action premised on breach of fair hearing, the Court is not concerned about the correctness or otherwise of the decision of the employer, but whether the employer followed the laid down procedure. Reliance was placed on Victino Fixed Odds Limited v. Ojo [2010] 8 NWLR [Pt

1197] 456 and Ovunwo & Anor v. Woko & Ors [2011] LEPLR-2841[SC].  

Counsel submits that the non-production of the record of proceedings of the disciplinary committee should not be a subject of controversy as Defendant is not under any obligation to produce the document as requested by the Claimant relying on Sections 89[a], 90 and 91 of the Evidence Act, 2011. The Court was urged to rely on the report and recommendations of the disciplinary committee as evidence of what took place at the disciplinary committee. 

 

15.             On exemplary damages, learned counsel submits that assuming the Claimant’s employment was wrongfully terminated, the Claimant is not entitled to exemplary damages as it is trite that in cases of wrongful termination of employment the measure of damages is the amount the employee would have earned for the notice period, and the Claimant has a duty to mitigate his losses, relying on Nigeria Produce Marketing Board v. Adewumi [1972] 1 All NLR [Pt 2] 433 at 437. Counsel urged the Court to resolve this issue against the Claimant and dismiss the claim for exemplary damages.

On the Claimant’s issue four, learned counsel argued that the Claimant’s employment and the loan are separate and distinct issues, and the termination of the Claimant’s employment does not absolve him of his obligation to repay the loan, resting on Lewis v. United Bank for Africa Plc [2016] LPELR-40661[SC]. The Court was urged to resolve the issue in Defendant’s favour, direct the Claimant to pay the N13,415,717.64 as admitted and dismiss the Claimant’s suit in its entirety.

 

          Issues for determination

 

16.            Looking at the issues for determination canvassed by the parties in their final written addresses, the questions that this Court is called upon to answer are:

 

a.    Whether the evidence of Defendant’s witness is admissible in law

 

b.    Whether the Claimant is entitled to judgment on his claims or any of them

 

c.    Whether Defendant is entitled to judgment on the counterclaim.

 

Issue one: Whether the evidence of Defendant’s witness is admissible in law

 

17.            Learned counsel for the Claimant argued, under issue one, that Defendant’s evidence is hearsay and inadmissible because the defence witness testified about matters that were not within his personal knowledge and did not disclose the source of his information, and he tendered Exhibits D1 and D2 in the absence of the makers without laying appropriate foundation. Counsel relied on several cases and Sections 37, 38, 83[1] and [2] and 126 of the Evidence Act, 2011. The Court was urged to expunge Exhibits D1 and D2 from its records. In his response, learned defence counsel contended that Defendant’s witness evidence is not hearsay because, as a company, Defendant can only act through its staff and officers, and the investigative panel report is Defendant’s document which can be tendered by any of its staff, and the question of the maker does not arise.

 

18.            I have read the cases cited by learned counsel in support of their arguments. The starting point is a consideration of Sections 37, 38, 83[1] and [2] and 126 of the Evidence Act, 2011. For clarity, I reproduce the provisions here.

 

                             37.      Hearsay means a statement –

 

[a]          oral or written made otherwise than by a witness in a proceeding; or

 

[b]         contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.

 

38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.

 

83[1] In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied- 

 

[a] if the maker of the statement either – 

 

[i]     had personal knowledge of the matters dealt with by the statement, or

 

[ii]    where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

 

                                         [b]  if the maker of the statement is called as witness in the proceedings

 

 Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been without success.

 

[2]  In any proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection [1] of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence notwithstanding that – 

 

[a]          the maker of the statement is available but is not called as a witness; and 

 

[b]         the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

 

126. Subject to the provisions of Part III oral evidence shall, in all cases whatever, be direct if it refers to -

 

[a]      a fact which could be seen, it must be the evidence of a witness who says he saw that fact;  [b]     a fact which could be heard, it must be the evidence of a witness who says he heard that fact;  [c]      a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;  [d]     an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as witness an amount of delay or expense which the court regards as unreasonable.

 

19.            These provisions have received judicial interpretation in several cases. Generally, the maker of a document is expected to tender it in evidence. The reason is that the maker is the person who can normally answer questions regarding the document and so his attendance is necessary to facilitate cross-examination. The two basic exceptions are: if the maker is dead or incapacitated; or the maker can only be procured at a great expense. See Omega Bank Nigeria Plc v. O. B. C. Limited [2005] 1 SC [Pt I] 49 at 74 and The Executive Governor, Ekiti State & Ors v. Abe & Ors [2016] LPELR-40152[CA] 28-35. The burden to establish that a case comes within any of the exceptions rests on the party seeking to tender the document. A document which is not tendered by the maker, and in respect of which evidence is not led to bring it

within the exceptions becomes a documentary hearsay. See Omega Bank Nigeria Plc v. O. B. C. Limited [supra] page 75. Where such is the case, unless the facts stated in the document are admitted by the opposing party in his pleading or evidence, the Court will not ascribe any probative value to it despite the admission of the document in evidence. See Omega Bank Nigeria Plc v. O. B. C. Limited [supra], Emmanuel v. Umana & Ors [No. 2] [2016] 2 SC [Pt I] 102 at 116 and The Executive

Governor, Ekiti State & Ors v. Abe & Ors [supra]. However, if the purpose of calling the maker of a document is solely for him to tender the document, the Court may dispense with his personal appearance. See Statoil Nigeria Ltd v. Inducon [Nig.] Ltd [2014] 9 NWLR [Pt 1411] 43 at 94.

 

20.            I have carefully read the Claimant’s pleadings and witness depositions, and I observe that the Claimant admitted that he received a query after his EFCC visit which he answered. He also admitted that he was invited to appear before Defendant’s disciplinary panel and he appeared. See paragraphs 23 to 24 of the statement of facts. In addition, the Claimant tendered Exhibits D1 and D2 as Exhibit 17. Having admitted the facts contained in Exhibits D1 and D2 and even tendered the documents, the Claimant cannot justifiably complain. See Omega Bank Nigeria Plc v. O. B. C. Limited [supra], Emmanuel v. Umana & Ors [No. 2] [supra] and The Executive Governor, Ekiti State & Ors v. Abe & Ors [supra]. Moreover, and as rightly argued by learned counsel for Defendant, the investigative panel report is Defendant’s document and can be tendered by any of Defendant’s staff. Therefore, the question of the maker of the documents does not arise. I hold that Exhibits D1 and D2 were rightly received in evidence through Defendant’s witness.

 

21.            Furthermore, Section 175[1] of the Evidence Act, 2011 provides that “All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” In addition, the law on evidence by officials of a limited liability company is settled. Being a juristic person, Defendant can only act through officials who can give evidence to establish any transaction entered into by the company even where the official giving the evidence did not take part in the transaction. It is immaterial whether the evidence relates to Defendant’s relationship with its employees. Such evidence cannot be discountenanced as hearsay, but the fact that the witness was not privy to the transaction may affect the probative value of the evidence. See Saleh v. Bank of the North Limited [2006] LPELR-2991[SC] 11, Ishola v. Societe Generale Bank Nigeria Limited [1997] LPELR-1547[SC] 26-27 and Interdrill Nigeria Ltd & Anor v. United Bank for Africa Plc [2017] 13 NWLR [Pt 1581] 52 at 74 – 75. The defence witness established the basis of his testimony during his oral evidence in Court. He said “I am a banker with Defendant and the employee relations officer”, and under cross-examination he testified that he relied on

the records maintained by Defendant about this case. Having been fully briefed by Defendant to represent it in this case, and as an employee relations officer, I am of the respectful view that the defence witness is a competent and compellable witness, and there is nothing in his evidence rendering it hearsay evidence. I so hold.

 

               Therefore, issue one is resolved in the affirmative, and against the Claimant.

 

Issue two: whether the Claimant is entitled to judgment on his claims or any of them

 

22.            The law is settled that he who asserts must prove. See Sections 131[1], 132, 133[1], and 136[1] of the Evidence Act, 2011, Eweje v. O.M. Oil Industries Limited [2021] 4 NWLR [Pt 1765] 117 at 137 - 138 and Shehu v. Ahmad & Ors [2023] 9 NWLR [Pt 1888] 27 at 49 - 50. Thus, the Claimant who initiated this suit on a set of facts that he claims entitles him to judicial relief has the burden to prove those facts and to establish that those facts entitle him to the reliefs he seeks. See Nduul v. Wayo & Ors [2018] 7 SC [Pt III] 164 at 212. If the Claimant makes out a prima facie case, the burden of proof shifts to Defendant to adduce rebuttal evidence. See Nduul v. Wayo & Ors [supra]. Where the Claimant fails to make out a prima facie case, there will be nothing for Defendant to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. Iserhienrhien [2001] 6 NWLR [Pt 710] 660 at 674. 

 

23.            It is equally trite law that the Claimant who seeks declaratory reliefs has the legal burden to prove his entitlement to the declaration. See Ilori & Ors v. Ishola & Anor [2018] 15 NWLR [Pt 1641] 77 at 94. Evidence which will support a legal right must be credible, cogent and convincing. See Ibrahim v. Garki & Anor [2017] 9 NWLR [Pt

1571] 377 at 390 and Wondo & Ors v. Bello & Ors [2016] LPELR-40824[CA] 53. Evidence is credible when it is worthy of belief and for evidence to be worthy of belief, it must be natural, reasonable and probable in the circumstances of the case. See In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] 16. The Claimant will succeed on the strength of his case and cannot rely on the admission by Defendant or the weakness or absence of defence. See Adama & Ors v. Kogi State House of Assembly & Ors [2019] 16 NWLR [Pt 1699] 501 at 531. However, where Defendant’s evidence supports the Claimant’s case, he will be entitled to the benefit of such evidence and can use it to strengthen his case. See Darma & Ors v. Mustapha [2014] LPELR-23734[CA] 53 - 54.  

  

24.            In resolving employment disputes, the Court will usually refer to the employment contract and any other stipulation incorporated or deemed to have been incorporated into the contract. See Gbedu & Ors v. Itie & Ors [2020] 3 NWLR [Pt 1710] 104 at 126, Frank Jowan & Ors v. Delta Steel Company Ltd [2013] 1 ACELR 18 at 24 and Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108. It

is equally settled law that a party alleging wrongful dismissal must plead the terms and conditions of his employment, and prove the manner in which it was breached by the employer. See Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1 at 14, Ibekwe v. Imo State Education Management Board [2009] 5 NWLR [Pt 1134] 234 at 252 and Onyeukwu v. First Bank of Nigeria Plc [2015] LPELR-24672[CA] 12. The contract of employment is the bedrock on which parties to an employment contract found their case, and the success or failure of the case depends entirely on the terms agreed or deemed to have been agreed by the parties. See Umera v. Nigerian Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 386. Where there are series of documents incorporating the terms and conditions of the employment, the Court will not look outside those terms in deciding the rights and obligations of the parties. See Frank Jowan & Ors v. Delta Steel Company Ltd [supra] page 25.

 

25.            It is now settled law that a disciplinary committee vested with authority to hear and determine a particular issue, and whose decision will affect the civil rights and obligations of an employee must comply with the rules of fair hearing. What constitutes fair hearing depends on the circumstances of each case. See Arobieke v. National Electricity Liability Management Company [2017] LPELR-43461[SC] 21. Put differently, where there is an allegation of misconduct against an employee which may result in some form of punishment or deprivation of some rights or loss of means of livelihood, it is vitally important that he is given an opportunity to defend his conduct. See Olatunbosun v. NISER [1988] 3 NWLR [Pt 80] 25 at 52 and Arinze v. First Bank of Nigeria [2004] 5 SC [Pt I] 160 at 170. To satisfy the rule of fair hearing, the employee must be given adequate notice of the allegation against him to enable him make representations in his defence. See Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR [Pt 457] 632 at 645 and Raji v. Wema Bank Plc [2015] LPELR-

41699[CA] 28. It has been held that giving a query to an employee and allowing him to answer the query, and he answers it before a decision is taken satisfies the elementary requirements of fair hearing. See Eze v. Spring Bank Plc [2014] 3 ACELR 39 at 61 - 62 and Imonikhe v. Unity Bank Plc [2011] 5 SC [Pt I] 104 at 135. Where a disciplinary committee is set up, as in this case, it suffices if the employee is informed of the complaint against him and given an opportunity to exculpate himself. The disciplinary committee may not necessarily adhere to such rules of natural justice as exist in a Court such as examination of witnesses. See Arobieke v. National Electricity Liability Management Company [supra] pages 23 and 32. It is also trite that an employer can terminate the employment of an employee for gross misconduct where the misconduct approximates to a crime without recourse to Court provided the employer complies with the rules of fair hearing. See Billie v. Multi-Links Telecommunications Limited [2017] LPELR-41862[CA] 13-15. It is noteworthy that in dealing with the issue of fair hearing, the Court is not concerned with the rightness or otherwise of the decision taken against the employee. The duty of the Court is to examine the procedure adopted in arriving at the decision. Where the procedure complies with basic rules of fair hearing, the decision of the employer will not be struck down for minor lapses.

 

          Summary of evidence

 

26.             The Claimant sought 7 reliefs, testified in proof of his claims, and tendered 20 documents marked Exhibits 1 - 20. These are the Claimant’s Access Bank employment letter, Access Bank confirmation letter with the attachment, UBA employment letter, Skye Bank confirmation letter, promotion letter dated 7/1/2014, Polaris Bank employment letter dated 21/9/2018, dismissal letter dated 17/1/2019, appeal letter dated 22/1/2019, rejection of the appeal dated 11/2/2019, protest letter dated 7/3/2019 to Defendant’s Managing Director, Defendant’s response to the protest letter dated 5/4/2019 affirming the decision of the disciplinary committee, copies of the Claimant’s certificates, copies of the Claimant’s employment documents with CB1, Defendant’s employee handbook, a bundle of documents from the US Consulate in South Africa, notarised affidavit and letter from Department of Homeland Security clearing Jyde Adelakun of any wrongdoing, certified true copy of the judgment of the Federal High Court in Suit No. FHC/L/CS/76/2020 between the EFCC v. TOF Energy Company Ltd, a bundle of documents containing the internal audit query, the Claimant’s response, report and recommendations of the disciplinary committee, Defendant’s letter dated 5/4/2019, internal memo dated 26/2/2019 from Appeal Disciplinary Committee secretariat to the Head, Human Capital Management, and Defendant’s letter dated 11/2/2019, email invitation to disciplinary committee dated 12/11/2018, the Claimant’s Polaris Bank statements of account and certificate of authentication.

 

27.             The Claimant testified that he was Defendant’s employee until his dismissal by a letter dated 17th January 2019. According to him, Defendant acquired Skye Bank Plc on 21st September 2018. His banking career began in 1999 when he was employed as the Executive Assistant to the Deputy Managing Director of the defunct Commercial Bank Credit Lyonnais and when the bank changed to Capital Bank Plc he continued in that role until 2003 when he was deployed to the corporate banking department. In 2005, after the banks consolidation, he was employed as Branch Manager, Access Bank Plc, Akoka Branch. In 2006, he became the Branch Manager, United Bank for Africa Plc, Computer Village Branch, Ikeja. In 2008, he was employed as a Branch Manager, Skye Bank Plc and was the founder of its Iju Road Branch. After spending some time at the Branch, he was transferred to head the Opebi Branch as the Branch Manager. His employment was confirmed and he was the Opebi Branch Manager from 2013 to 2018 when he was transferred to Adeola Hopewell Branch, Victoria Island as the Branch Manager. In September 2018, Defendant acquired the assets and liabilities of Skye Bank

Plc, and he retained his position as Branch Manager, Adeola Hopewell Branch, Victoria

Island. On 16th October 2018, he received an electronic mail from Defendant’s Compliance Unit that the Economic and Financial Crimes Commission [EFCC] invited him as the Branch Manager, Adeola Hopewell Branch, to attend an interview regarding a business transaction with TOF Energy Limited, Defendant’s customer. He attended the interview with the account officer, one Oluyomi Oludipe and two of Defendant’s legal officers. The EFCC inquired into how $4,920,305.00 was received into the account of TOF Energy Ltd which was owned and managed by one Jyde Aremu Adelakun, Defendant’s customer. He gave his account of how the customer’s dormant account was re-activated, and subsequent transactions in the account. He stated that all the funds received into the customer’s account were duly processed by Defendant's International Operations Department, and complied with all regulatory processes including KYC [Know Your Customer] and AML [Anti Money Laundering]. The customer was granted access to his account as and at when due and was always taken to the Defendant’s Group Head's office where he placed his withdrawal and transfer requests. The customer made transfers from the domiciliary account into accounts within and outside Defendant, and withdrew funds, some in cash, and sold some in exchange for Naira. The customer asked to sell some of his funds to Yaro Ventures [a Bureau De Change operator, Defendant’s customer] and any other reliable consumer of foreign exchange within Defendant and in line with his responsibility as Branch Manager to ensure that the funds were not taken from Defendant, he introduced Continental Transfert and Technique Ltd, Kolseg Ltd, and Zaad Integrated Services Ltd to the customer and the customer successfully completed his transactions with the companies. He also stated that this was done to ensure that the funds were retained within Defendant for liquidity purposes. He stated his primary goal to be the reactivation and resuscitation of dormant accounts and relationships thereby regaining lost grounds in line with Defendant's strategy at the time. The transactions were consummated with the express consent of all the parties involved and in line with Defendant's policy, and any transaction that was done by proxy due to unavailability of cheque books and letter head were all initiated and consented to by the account holder and duly regularised within Defendant's approved window and long before any caution was received from the EFCC. After the EFCC investigation, he was cleared of any crime, but Defendant’s Investigation and External Relations Unit issued him a query by email asking for briefing on his visit to the EFCC as well as the circumstances of the transactions between Defendant, and the customer, and how funds were withdrawn and dispensed. A few weeks after, in November 2018, he received another email from Defendant inviting him to a disciplinary proceeding which he did, a process that lasted for about an hour. The query issued did not stipulate the offence committed and the disciplinary process “was not about any alleged offence committed.” Both the query and disciplinary process were for him to explain what transpired at the EFCC and the transactions between Defendant and the customer. He was shocked to receive a dismissal letter alleging commission of criminal offences for which he was not tried, and against which he was not allowed to defend himself. On 17th January 2019, he received a dismissal letter for gross misconduct for "Engaging in Parallel Banking Activities, Acceptance of Brokerage and Commission, Facilitations of Illegal/Unauthorized FX Trading, Money Laundering and other Transactions in Violation of Statutory/Regulatory Provisions.” He appealed against the decision and asked for a reversal, but Defendant rejected the appeal because it did not raise any point of law, procedure or policy. He wrote again to the Managing Director through the Chairman of the Appeal Disciplinary Committee based on procedure and points of law, but Defendant dismissed his appeal for lacking in merit and affirmed the decisions and recommendations of the Disciplinary Committee and Disciplinary Appeal Committee. He maintained that the EFCC did not indict him for any fraudulent act, money laundering, illegal/unauthorized FX trading. The Department of Homeland Security, United States of America also reported that there was no record of any fraud against the customer. The South African Police Service, Cape Town also reported in an affidavit that there was no criminality detected after their investigation of the customer. He stated that despite evidence of his non-involvement in parallel banking activities, acceptance of brokerage and commission, facilitation of illegal/unauthorized FX trading, money laundering and other transactions, and lack of fair hearing in respect of the allegations Defendant still dismissed him. During his employment with Defendant, he maintained a clean slate, did his business with integrity both in his relationship with Defendant’s management and the customers and there was no report of fraud or a query relating to fraud or fraudulent activities ever issued to him. He was ill-treated and deliberately set up by Defendant for dismissal, and since the dismissal, he has been physically and emotionally traumatized and thrown into financial predicament and a very dire situation. His remuneration package at exit was N14,893,360.00 per annum. Since his dismissal as an alleged criminal, he has suffered loss of reputation, ineligibility for public and private office/employment, and social discrimination. He stated that his dismissal is wrongful, illegal, malicious and unconstitutional, and he was not heard on the alleged crimes upon which the dismissal letter is founded. As a career banker, having tainted his reputation with the undeserved and unwarranted guilt of criminality, Defendant has forever damaged his prospect of working in the banking and finance sector or his being placed in any fiduciary position. By its act, Defendant has rendered him unemployable for life and put his comfort and that of his dependents in jeopardy, and he claims per his complaint and statement of facts. 

 

28.             In his additional statement on oath dated 4th May 2022, the Claimant denied any underhand dealings with anybody involving N2,000,000,000, and the EFCC absolved him of any fault and the Federal High Court, Lagos has discharged the customer of the charges preferred against the customer by the EFCC in the judgment delivered on 8th October 2020. He denied that the US$4,920,305 belonging to TOF Energy Limited was frozen when it was credited into the account, and stated that the money was released to the customer after complying with necessary bank processes to determine the legality of the funds. He also stated that account reactivation was one of his key responsibilities as a Branch Manager and he complied with the Bank's approved process and policy in doing it. All funds received into the reactivated account were received from the customer's account in the United States of America and were adequately scrutinized, approved and applied into the customer's account by the Bank's Internal Control Unit and the Compliance Unit. He denied that the funds were hurriedly dissipated, noting that the EFCC conducted an investigation on the customer’s account based on an interim order from the Federal High Court, which was subsequently set aside and the suit struck out. He stated that the customer had an existing relationship with the Bureau de Change and demanded to deal with them. He denied influencing the customer's choice to sell his funds or helping him to make any decision. He stated that out of the over US$4.9 million received into the customer’s account, he sold about US$2.9 million leaving the balance in his account with Defendant and no lien has been placed on it. He confirmed that he only admitted the role he played as Branch Manager in the transaction to ensure that Defendant did not lose money and a good customer. Also, all withdrawals from the account were approved by the Group Head who sought further  approvals from the Directorate Head. He stated that despite not executing the transaction by cheque, it was regularized by the account holder within the approved period. He denied engaging in parallel banking activities of buying and selling FX on behalf of a customer without channeling it through the bank, and only acted in the ordinary course of business which was non-obligatory. He denied carrying out any form of proxy transactions on the customer’s account without written instructions from the account holder, and stated that the customer was present and the Bank was obliged to render required service to him and all transactions were approved by the necessary approving authorities. He also stated that proxy transactions are allowed by Defendant’s rules in so far as the transactions are regularized within the specified time. He reiterated that he received a gift not a gratification. He stated that he was not present at the review of his dismissal by Defendant’s committee set up to look into his appeal, and denied being confronted with the allegations contained in the dismissal letter at any time before 17th January 2019. After his dismissal, he was immediately logged out of Defendant's computer and communication system and lost access to, and could not retrieve the query issued to him in October 2018, and the email invitation to appear before the Disciplinary Committee, which informed the notice to Defendant to produce the documents at the trial. He has no record of proceedings of his appearance before the Disciplinary Committee, and none was given to him which is why he asked Defendant to produce the record of proceedings at the trial. He denied being afforded a fair trial by the Committee, and further denied indebtedness to Defendant for N19,484,392.80 but admitted taking a mortgage loan of N26,820,000.00 from Defendant. He denied Defendant’s allegation that he refused to repay the loan and accrued interest and stated that the mortgage loan was tied to his income which was frustrated by his wrongful dismissal. He also stated that the mortgage loan was for 15 years effective June 2014, at 5% interest per annum. Out of the N26,820,000.00 N13,404,282.36 has been deducted from his salary for repayment of the mortgage, and since the loan is tied to his salary and quarterly earnings, and he did not default in the loan repayment. 

 

 

29.             Under cross examination, he admitted that he was not a party to Exhibit 16 but stated that it was the reason for his sack. He confirmed paragraph 7 of his additional statement on oath and stated that it was not his account that was frozen. He also confirmed paragraphs 10 and 11 of his additional statement on oath that the BDC operators were Defendant’s ex-staff. He confirmed paragraph 18 and admitted receiving N1.9m as a gift, which he did not return to Defendant because it was not supposed to be returned, and he reported it to the Group Head who confirmed that to the disciplinary panel. He gave Dipo N950,000.00 as his share of the gift. He admitted that in Exhibit 8 he pleaded for the reversal of the decision of the disciplinary committee, tendered unreserved apology to the disciplinary committee, and promised to uphold the tenets and regulations of the bank going forward because he saw the allegations in the dismissal letter for the first time which is why he appealed for a fair hearing. He admitted Exhibit 17 and his reply by email of 17/10/2018, wherein he confirmed that he gave N950,000 to Dipo Oshodi, and got N350,000 as gift. He admitted that he introduced the BDC operators to the customer because it was not exceptional “in the line of business development responsibilities in the Bank and the questions relate to EFCC invitation. He was not in the Bank in 2015” and could not answer the question. He admitted that in Exhibit 17 he explained the withdrawals and transfers executed by the customer in person and referred to $600,000 which was brokered by Culsec Ltd which he introduced. He explained that proxy banking is not prohibited in the bank and he followed all approvals which the EFCC investigated and ticked, and the $800,000 was the customer’s transaction and was approved by the ED. He admitted receipt of an email to appear before the Bank’s disciplinary committee, and spent about an hour in the disciplinary meeting. He denied being confronted with the case of fraudulent inflow and money laundry. He read Exhibit 18 and said it was written on Monday 11/12/2018 requiring him to appear on Thursday, 15/11/2018. He confirmed Exhibit 10 and admitted that he appeared before the disciplinary committee but not on what was alleged on the invitation letter. He admitted taking a mortgage loan during his employment with Defendant and made some repayments leaving an unpaid balance, but said Defendant frustrated the transaction.  

 

30.             Defendant’s witness and employee relations officer, Mr. Paul Animashaun, denied that Defendant acquired Skye Bank Plc’s shares including the Bank’s assets and liabilities on the Central Bank of Nigeria’s directive on 21st September 2018, but stated that Skye Bank Plc was wound up on 16th April 2019 and the Nigerian Deposit Insurance Corporation [NDIC], as liquidator to Skye Bank Plc, was saddled with the responsibility of dealing with all claims and liabilities of the defunct Bank, except those already purchased or assumed by Defendant. By a Purchase and Assumption Agreement dated 21st September 2018, Defendant purchased some assets of the defunct Skye Bank Plc and also assumed some of its liabilities. The witness admitted that the Claimant was Defendant’s employee until his dismissal on 17th January 2019 for gross misconduct.

He stated that the Claimant, acting in concert with others, re-activated a dormant account of one of Defendant’s customers, TOF Energy Ltd, on 17th August 2018 and between that date and 6th September 2018, the account received a total of US$4,920,305.00 which was hurriedly dissipated before commencement of investigation. After the initial investigation, Defendant’s Internal Audit, by email of 16th October 2018 asked the Claimant to explain his role in the transactions for which he was invited and interrogated by the EFCC. The Claimant responded by email dated 17th October 2018, and stated that between 17th August 2018 to 6th September 2018, US$4,920,305 was received from an account in the United States of America into the hitherto dormant account, and they brought in a Bureau De Change operator to help source for Naira in exchange for the millions of dollars. The Claimant received a sum of money as “gift” for his role in the transactions and he was instructed to give the Group Head N950,000.00 only as gift. After the initial investigation and review of the Claimant’s response to the query, Defendant set up a Disciplinary Committee and invited the Claimant and other staff involved in the transactions to appear and defend themselves. The Claimant appeared before the Disciplinary Committee and presented his side of the case without denying the basic facts culminating into the transaction. The Claimant admitted that he instructed the Account officer to raise the email to execute the customer’s transactions and recommended the approval of the proxy transactions to his Group Head, which he claimed was done as a matter of exigency. The Claimant further explained that the transactions were done over a period of days and have been regularized as the customer subsequently issued both dollar and naira cheques to back up the transactions. On the allegation of engagement in parallel banking activities by selling and buying forex on behalf of the customer without routing it through the Bank, the Claimant claimed he was only going the extra mile to assist the customer so as to keep the customer from moving his funds away from the Bank. On the monetary gift he received for facilitating the forex transactions between the customer and other third parties, the Claimant admitted receiving monetary gift but stated that it was never his intention to benefit from the transaction. Based on the evidence before it, the Disciplinary Committee found that the Claimant in collaboration with others engaged in various infractions prohibited by his contract of employment, and in particular, the Claimant authorized and carried out proxy transactions on the customer’s accounts without any written instructions from the customer which enabled the customer to withdraw funds from the accounts which became the subject of the EFCC investigation as proceeds of fraud allegedly committed by the customer abroad. He personally benefitted from the forex transactions executed on the customer’s account in breach of Defendant’s policy and received N1,000,000.00 gratification. He also engaged in parallel banking by selling FX on customer’s behalf without routing it through the bank process which was a gross misconduct, and one of the applicable sanctions for the infractions committed by the Claimant is dismissal. Based on its findings, the Disciplinary Committee, in line with Defendant’s Staff Disciplinary and

Sanctions/Disciplinary Grid, recommended that the Claimant and other staff involved in the transactions be dismissed. Defendant communicated the dismissal to the Claimant by its letter dated 17th January 2019. The Claimant applied twice for a review of the dismissal and an independent committee reviewed his appeal and found no merit in the two appeals, and the Claimant was informed accordingly. The witness maintained that the Claimant was specifically confronted with all the allegations contained in the dismissal letter and he responded to them twice; first in his email dated 17th October 2018 and, secondly, before the Disciplinary Committee. He also stated that the Claimant was afforded a fair trial and the Disciplinary Committee was constituted in such a manner as to ensure its impartiality. The Committee that reviewed the Claimant’s appeals was different from the Disciplinary Committee and the person who communicated the refusal of the appeals. Given the proceedings and findings of the Defendant’s Disciplinary panel, the Claimant’s dismissal is right and the Claimant is not entitled to payment of any salary as none was outstanding. On the claim for N10,000,000.00 general damages, the witness stated that in claims for wrongful dismissal, the measure of damages is the amount the employee would have earned under the contract for the employer to lawfully determine the contract. On the counterclaim, he stated that the Claimant is indebted to Defendant in the principal sum of N19,484,392.80 and interest which continues to accrue being a personal loan which the Claimant secured and utilized while in Defendant’s employment. He also stated that the Claimant has failed and refused to repay the loan and accrued interest, and Defendant is entitled to recover N19,484,392.80 [nineteen million four hundred and eighty-four thousand, three hundred and ninety two naira eighty kobo] being the Claimant’s current indebtedness to the Defendant with interest. He prayed the Court to dismiss the Claimant’s case with substantial costs for lacking in merits and grant the counterclaim as claimed. Defendant tendered 9 documents marked Exhibits D1 to D9. These are the emails captioned EFCC invitation, reports and recommendations of the disciplinary committee, Sanctions Grid, Staff Disciplinary policy, copy of the dismissal letter, decision of the Appeal Committee, internal memo dated 26/2/2019, the Claimant’s statement of account and Defendant’s letter dated 11/2/2019.

 

31.             Under cross-examination, the witness admitted that he joined Defendant on 22nd September 2015 and he is an employee relations officer in the Human Capital Department. He stated that he did not encounter the Claimant personally but from his records. Also, he did not participate in the events leading to the Claimant’s dismissal but the records are there, and his testimony is based on records which he read. He identified Exhibit D2 as the report of the disciplinary committee and admitted that he knows the members of the panel in the course of work. He stated that the allegation against the Claimant was breach of process, engagement in parallel banking and gratification. He explained that the Claimant, as the branch manager, authorised proxy transactions in violation of the Banks operational system, unauthorised FX transactions which were consummated through BDC instead of routing it through the Bank. The Claimant received brokerages and commission from those he gave the FX, and was supposed to declare it. He insisted that the Claimant committed all the listed offences, and explained that proxy transactions are transactions consummated on a customer’s account without documentation which is prohibited in the conditions of service and operational rules. He admitted that the Claimant was the head of the branch and authorised the transactions. He stated that payments can be authorised by the account officer or branch manager depending on the amount, and he worked in Access Bank. He has heard about the Head of Operations but he does not authorise payment, and he was aware that the Claimant was the business development manager, not the operations manager. He is not aware that the customer did not complain about the withdrawals, but admitted that there was no PND on the account when the payments were made. He also admitted that the payments were authorised by the operations manager, the Claimant and the Group Head and the Claimant was not accused of fraud or money laundering, or of authorising payment without instructions. He admitted that the Claimant was at the Adeola Hopewell branch but was not aware that it was the largest branch. He admitted that the Claimant was invited to the EFCC based on a letter from the EFCC, but he was not privy to what happened at the EFCC and also not aware if the EFCC issued a report. He confirmed that when an employee is invited by the EFCC he is supposed to give feedback to the Bank and it is the Claimant’s report that led to the investigation. He could confirm that payment was received into the customer’s account, but could not confirm the source of the payment. He said the operations manager was not invited by the panel because it was the BDM that authorised the payment. He denied that the Bank sacrificed the Claimant for reputational reasons, and insisted that there is a prohibition on receipt of gifts. He also stated that there was no report on the gift until after the Claimant was queried, and the gift was N950,000 and N355,000. The N950,000 was for the Claimant and the regional manager. When told that he did not produce the record of proceedings of the disciplinary panel, he said it is the report of the disciplinary panel that “we have” and, to his knowledge, the report reflects what transpired at the disciplinary committee. He reiterated his evidence that the Claimant was confronted with the reasons for his dismissal during the proceedings. Under re-examination, he said the BDM is the head of the branch, the Claimant, and that Dipo Oshodi was the regional manager and was equally dismissed, and he is in this Court regarding the matter. 

                                                             

             Evaluation of evidence

 

32.             I have carefully read and evaluated the oral and documentary evidence adduced by the parties. The oral evidence of the witnesses has been summarised in this judgment and will not be repeated here except where necessary. The crux of the Claimant’s claim is damages for wrongful dismissal. He tendered 20 exhibits to support his oral testimony, and Defendant tendered 9 exhibits to support its defence and counterclaim. What emerges from the evidence is that there is no dispute about the Claimant’s employment and dismissal on 17th January 2019. There is equally no dispute that the Claimant was

invited by the EFCC for questioning, honoured the invitation and there was no report indicting him for any wrongdoing. It is also not disputed that Defendant’s Internal Audit Group, by email dated 16th October 2018, asked the Claimant for briefing on the EFCC visit, his relationship with the account holder, and confirmation of his knowledge of the fraud and money laundering allegations against the customer’s account, amongst others. The Claimant responded. See Exhibits 17 and D1. Based on Defendant’s witness testimony, during cross-examination, the briefing was usual administrative requirement when an employee honours such invitation. He said “Normally, when an employee is invited, he is supposed to give a [sic] feedback to the bank, and it is the report that led to the investigation”, which supports the Claimant’s testimony in paragraph 24 of his statement on oath. Parties agree that the Claimant was invited to a disciplinary hearing in November 2018, and he attended. See paragraph 25 of the Claimant’s statement on oath, paragraph 8[a] of Defendant’s witness deposition and Exhibit 18. Parties also agree that the disciplinary committee found the Claimant culpable and recommended his dismissal, and he was dismissed on 17th January 2019. See Exhibits 7 and D5. The Claimant’s two appeals were dismissed. See Exhibits 8, 9, 10, 11, D2, D6, D7 and D9. The dismissal letter reads, in part, “Further to your appearance before the Bank’s Disciplinary Committee in respect of the case of “Engaging in Parallel Banking Activities, Acceptance of Brokerage and Commission, Facilitation of Illegal/unauthorised FX Trading, Money Laundering and other Transactions in Violation of statutory/Regulatory Provisions”, the Bank’s Management is convinced that the allegation of gross misconduct has been established against you. Consequently, we hereby notify you of Management’s decision to Dismiss you from the services of the Bank for gross misconduct effective Thursday, January 17th, 2019.” The Claimant’s grouse is that the query did not stipulate the alleged offence committed, and the disciplinary process was not about any alleged offence committed, but the query and disciplinary process were for him to explain what transpired at the EFCC as well as the transactions between Defendant, TOF Energy Ltd, Jyde Aremu Adelakun, and how funds were withdrawn and dispensed. Also, the Claimant states that he was not tried for the offences for which he was dismissed and “had not been allowed to defend myself before being pronounced guilty by a competent authority.” See paragraphs 26, 27 and 28 of the Claimant’s statement on oath. 

 

33.             Let me reiterate that an employer can terminate the employment of an employee for gross misconduct where the misconduct approximates to a crime without recourse to Court provided the employer complies with the rules of fair hearing. See Billie v. MultiLinks Telecommunications Limited [supra]. So, it is not material for present purposes that the Claimant was not arraigned in Court before his dismissal for the offences. Secondly, and as I said earlier, where there is an allegation of misconduct against an employee which may result in some form of punishment or deprivation of some rights or loss of means of livelihood, it is vitally important that the employee is given an opportunity to defend his conduct. See Olatunbosun v. NISER [supra] and

Arinze v. First Bank of Nigeria [supra]. To satisfy the rule of fair hearing, the employee must be given adequate notice of the allegations against him to enable him make representations in his defence. See Yusuf v. Union Bank of Nigeria Ltd [supra] and Raji v. Wema Bank Plc [supra]. I have closely examined Exhibits 17 and D1, and as I said in the preceding paragraph, the briefing was usual administrative requirement when an employee honours the EFCC invitation, and not a query in the strict sense. Nonetheless, parties regard Exhibits 17 and D1 as a query and answer to query. A query usually initiates the disciplinary process and notifies the employee of the allegations against him. In Exhibits 17 and D1, there are no allegations made against the Claimant which buttresses my conclusion that it was merely a fact-finding email. More worrisome is Exhibit 18. Learned counsel for the Claimant argued with much force that Exhibit 18 is falsified, and should be expunged or not given any probative value. Responding, learned counsel for Defendant argued that the allegation that Exhibit 18 is forged goes to no issue because it was not pleaded or proved, and an allegation of forgery must be proved beyond reasonable doubt which is lacking in this case, and relied on United

Bank for Africa Plc v. Mrs. Mary Alex Osok [supra] and APC v. PDP & Ors [supra]. No doubt, forgery is a crime, and whenever an allegation of crime is in issue in any proceedings, it must be proved beyond reasonable doubt. See Section 135[1] of the Evidence Act, 2011 and APC v. PDP & Ors [2015] 3-4 SC [Pt I] 79 at 136. The Claimant did not plead forgery, but averred, in paragraphs 23 and 24 of the amended reply to the statement of defence and defence to counterclaim, that after his dismissal, he was logged out of Defendant’s computer and communication system and could not retrieve the query, and invitation to disciplinary hearing which is why he gave Defendant notice to produce the documents. The service of a notice to produce on the adverse party under Section 91 of the Evidence Act, 2011, does not compel the party served to produce the document. Rather it entitles the party serving the notice to adduce secondary evidence of the document in question. See Eweje v. O.M. Oil Industries Limited [supra] pages 138 – 139.

 

34.             However, I have examined Exhibit 18, and compared it with Exhibits 17 and D1 which were issued within the period, and I doubt the authenticity, and will not attach any weight to it. For clarity, Exhibits 17 and D1 were made on 16th and 17th October 2018 and describe the sender, date of the email, receiver, subject, message and signature. The signature of the email of 16th October 2018 reads “Internal Audit Group/Polaris Bank Limited/31 Akin Adesola Street, Victoria Island – Lagos/DL: 012930988. https://www.Polarisbanklimited.com/xperience”. Exhibit 18 is remarkably different from Exhibits 17 and D1. Apart from the difference in the arrangement of Defendant’s email, the signature reads Skye Bank Plc and website is skyenankng.com. I have looked at Exhibit 18 again, and I observe that the two allegations stated are fraudulent inflows and money laundering in respect of TOF Energy Company Limited accounts. However, the Claimant ostensibly appeared before the disciplinary committee on allegations of breach of Bank’s policy on proxy transactions, engagement in parallel banking activities, receiving gratification from customer, and exposing the Bank to money laundering issues. See Exhibit D2. Apart from money laundering, allegations one to three were not disclosed on the invitation letter, and none was disclosed on the query. Despite this, the disciplinary committee found the Claimant culpable on the four allegations and recommended his dismissal. The dismissal letter listed five offences “Engaging in Parallel Banking Activities, Acceptance of Brokerage and Commission, Facilitation of Illegal/unauthorised FX Trading, Money Laundering and other Transactions in Violation of statutory/Regulatory Provisions” but dropped the charge of breach of Bank’s proxy transactions and added “Facilitation of Illegal/unauthorised FX Trading” for which the Claimant was not questioned. 

 

35.             Any way one looks at it, the Claimant was not queried for the offences he appeared before the disciplinary committee for, and in respect of which he was dismissed. I have reviewed Exhibit 14. While the “disciplinary procedure” is on pages 84 to 86, apart from setting out the disciplinary bodies, it does stipulate the disciplinary procedure. In the concluding part, it is stated that “Proper adjudication of all staff disciplinary actions remains exclusively the responsibility of the disciplinary bodies.” This places a burden on the Internal Audit Group and the Disciplinary Committee which presided over the Claimant’s disciplinary process to ensure that due process is followed and the employee is accorded a fair hearing. The Staff Policy – Disciplinary Policy, Exhibit D4, provides for query and summary dismissal, amongst others. It provides, in part, that “In each case of misbehaviour or misconduct, the employee is given a written Query to respond through a written explanation of the employee’s position in the case in question.” Exhibits D4 and D3 go on to specify the offences and likely sanctions. Clearly, a critical element of disciplinary procedure is missing in Defendant’s “disciplinary procedure” which is not in Defendant’s best interest. I must note that despite issuance of notice to produce by the Claimant, Defendant refused to produce the proceedings of the disciplinary hearing. While the employer enjoys absolute powers to dispense with the services of an employee for gross misconduct, the exercise of that right must comply with basic rules of fair hearing. That is not so here. The Claimant was, so to speak, kept in the dark of the allegations against him until he arrived at the disciplinary hearing, and when he was dismissed, he was dismissed for offences he was questioned by the panel and for offences that did not form part of the panel’s enquiry. Oputa, J.S.C. [of blessed memory], in his contributing judgment in Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] LPELR-2574[SC] 47-48, held that “The right to a fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the Appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension, in such a case, it is equally vitally important that the Appellant be given ample opportunity to defend his conduct.” See also the cases of Ahmed v. Ahmadu Bello University & Anor [2016] LPELR-40261[CA] 20-21 and Salami v. Union Bank of Nigeria Plc

[2010] LPELR-8975[CA] 42. In these circumstances, I find as a fact that the Claimant was denied a fair hearing by Defendant in the events culminating in his dismissal. Thus, the dismissal of the Claimant did not comply with the principles of natural justice and fair hearing and therefore wrongful. See Eze v. Spring Bank Plc [2011] LPELR-2892[SC] 35.  

 

36.             Exhibit 16 is the certified true copy of the Federal High Court judgment in Suit No. FHC/L/CS/76/2020 between the EFCC v. TOF Energy Company Ltd. I observe that the suit was struck out on a preliminary objection for abuse of Court process given the pendency of two appeals at the Court of Appeal in respect of the subject matter. The judgment did not exculpate TOF Energy Company Ltd of any wrongdoing. In any event, the value of the exhibit to this proceeding is doubtful. 

 

               In this premise, issue two is resolved in the affirmative, and in favour of the Claimant.

 

Consideration of the reliefs

 

37.             The first relief seeks a declaration that the dismissal of the Claimant from his employment by the Defendant for gross misconduct vide a letter of dismissal, dated 17th January 2019 is wrongful, malicious, null and void. I found in this judgment that the dismissal of the Claimant did not comply with the principles of natural justice and fair hearing and therefore wrongful. However, in a purely master and servant relationship, the Court will not declare the dismissal null and void even when it finds that the Claimant was wrongfully dismissed except in very deserving cases. The dismissal, whether wrongful or not, brings the employment relationship to an end. The Court cannot, in this circumstance, declare it null and void. See Nigerian Gas Company Ltd v. Dudusola [2005] LPELR-5958[CA] 32. Accordingly, this relief succeeds in part. I hold that the Claimant’s dismissal by letter dated 17th January 2019 is wrongful. 

 

38.             The second relief seeks a declaration that the dismissal of the Claimant from his employment by the Defendant for gross misconduct vide a letter of dismissal dated 17th January 2019, which stated that an allegation of gross misconduct has been established against the Claimant by the Disciplinary Committee of the Defendant in respect of the case of “Engaging in parallel Banking Activities, Acceptance of Brokerage and Commissions, Facilitation of Illegal/Unauthorized FX Trading, Money Laundering and Other Transactions in Violation of Statutory/Regulatory Provisions” – specific offences or allegations over which the Claimant was not queried, or for which the Claimant was not tried by the Defendant [or its said Disciplinary Committee], is wrongful, illegal, unconstitutional, null and void. I found in this judgment that the Claimant was not queried for the offences he appeared before the disciplinary committee for, and in respect of which he was dismissed. This claim is similar to relief one above. Accordingly,

I adopt my reasoning and conclusion in paragraph 37 above, and hold that the Claimant’s dismissal by letter dated 17th January 2019 is wrongful, but it is not illegal, unconstitutional, null and void. This claim succeeds in part.

 

39.             The third relief is for a declaration that the dismissal of the Claimant from his employment by the Defendant for gross misconduct [and offence particular thereof, as herein stated], vide a letter of dismissal, dated 17th January 2019, when the Defendant [or its Disciplinary Committee] did not accuse or try the Claimant of, and for gross misconduct and particulars thereof “Engaging in parallel Banking Activities, Acceptance of Brokerage and Commissions, Facilitation of Illegal/Unauthorized FX Trading, Money Laundering and Other Transactions in Violation of Statutory/Regulatory Provisions as provided by Offences XVII under the Sanctions/Disciplinary Grid of the Defendant’s Employees Handbook 2019, is wrongful, illegal, unconstitutional, null and void. I found in this judgment that apart from money laundering, allegations one to three on the disciplinary committee’s findings and recommendation, Exhibit D2, were not disclosed on the invitation letter, and none was disclosed on the query. Despite this, the disciplinary committee found the Claimant culpable on the four allegations and recommended his dismissal. The dismissal letter listed five offences “Engaging in Parallel Banking Activities, Acceptance of Brokerage and Commission, Facilitation of Illegal/unauthorised FX Trading, Money Laundering and other Transactions in Violation of statutory/Regulatory Provisions” but dropped the charge of breach of Bank’s proxy transactions and added “Facilitation of Illegal/unauthorised FX Trading” for which the Claimant was not questioned. I adopt my reasoning and conclusion in paragraphs 37 and 38 above, and hold that the Claimant’s dismissal by letter dated 17th January 2019 is wrongful, but it is not illegal, unconstitutional, null and void. This claim succeeds in part.

 

40.             The fourth relief is for a declaration that the establishment of the guilt and eventual dismissal of the Claimant by the Defendant, without availing him the opportunity to be heard by a court of competent jurisdiction in respect of the allegations of crimes made against him, as stipulated by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, is unconstitutional, illegal, null and void. As I said in this judgment, it is no longer the law that whenever an employer makes allegations against an employee bordering on criminality it must be proved beyond reasonable doubt, or the employer must allow the relevant agency of government to arraign the employee in Court and wait until the case is concluded before disciplining the employee. All that is required of an employer before summarily dismissing an employee, in such circumstances, is to give him a fair hearing by confronting him with the accusation made against him and giving him opportunity to defend himself. See Arinze v. First Bank of Nigeria [supra]. Given this settled position of the law, I hold that this claim has not been established, and it is consequently refused. 

 

41.             The fifth claim is for an order of the Honourable Court setting aside the said letter of dismissal of the Claimant dated 17th January 2019. This claim is ancillary to reliefs one to three above, and those reliefs having succeeded in part, I hold that the dismissal of the Claimant cannot stand. The letter of dismissal dated 17th January 2019 is hereby set aside. 

 

42.             Relief six is for an order directing the Defendant to pay the Claimant all his salaries, allowances, emoluments, or entitlements from the said date of the wrongful dismissal from his employment, up to now. The law is settled that in a purely master and servant relationship, the Court will not declare the dismissal null and void even when it finds that the Claimant was wrongfully dismissed except in very deserving cases. The dismissal, whether wrongful or not, brings the employment relationship to an end. See Nigerian Gas Company Ltd v. Dudusola [supra]. Having not made an order for the Claimant’s reinstatement, the justification for payment of his salaries, allowances, emoluments, or entitlements from the date of the wrongful dismissal to date does not exist. The effect of the setting aside of the Claimant’s dismissal is that his employment is deemed terminated by Defendant and he is only entitled to such benefits as have accrued to him up to 17th January 2019 based on clause 4[b] page 101 of the employee handbook, Exhibit 14. As there is no evidence of any accrued benefits, the hands of the Court are restrained from granting this claim, which is hereby refused for lack of proof. 

 

43.             Relief seven is for ten million naira [N10,000,000.00] as exemplary damages against the Defendant for wrongful dismissal of the Claimant and the cost of this action. The Claimant joined two different claims together. Exemplary damages are not awarded for the asking. Exemplary damages follow the cause. Where there is no cause, there will be no damages. Put differently, the facts of the case must justify the award of exemplary damages. This is so because exemplary damages are damages on an increased scale over and above special or general damages and are awarded where Defendant’s conduct is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence, or flagrant disregard of the law and the like. They are punitive in nature and will be awarded in three instances, namely where there is an express authorisation by statute, in the case of oppressive, arbitrary or unconstitutional action by agents of the government, and where Defendant's conduct is calculated to make a profit for himself, which might well exceed the compensation payable to the Claimant. The Claimant does not need to prove the three conditions to succeed. Once any of the conditions is proved, the Court will award exemplary damages. See Obinwa v. C.O.P. & Ors [2007] 11 NWLR [Pt 1045] 411 at 415, 426, CBN & Ors v. Okojie [2015] 14 NWLR [Pt 1479] 231 at 243, 263, G.K.F. Investment Nigeria Ltd v. Nigeria Telecommunications Plc [2009] 15 NWLR [Pt 1164] 344 at 373 and Nursing and Midwifery Council of Nigeria v. Patrick Ogu & Anor [2019] LPELR-53899[SC] 15 – 17. Even though the Claimant’s dismissal is wrongful, there is no evidence of malice, cruelty, insolence, or flagrant disregard of the

law to warrant the award of punitive damages. Consequently, the claim for exemplary damages is refused. Cost follows events in litigation, and a successful party is entitled to his costs, whether specifically claimed or not unless there are special reasons to deprive him of cost. See Egypt Air Limited v. Ibrahim & Anor [2021] LPELR55882[CA] 35-36. The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. This Court has unfettered discretion to award cost which discretion, must in all circumstances, be exercised judicially and judiciously. See Order 55 Rules 1 and 5, National Industrial Court of Nigeria [Civil procedure] Rules, 2017. In awarding costs, the Court considers the filing fees paid, the duration of the case, the cost of legal representation, the value of the naira when the expenses were incurred, and the current value of the naira. See Adelakun v. Oruku [2006] LPELR7681[CA] 26 – 28. The Claimant spent about N25,250 as filing fees, was present in Court 8 times, and was represented by counsel 13 times. The case spanned about five years. Considering the current value of the naira, the rate of inflation, and the time it has taken the Claimant to enforce his right, cost of N500,000.00 [five hundred thousand naira] only is awarded to the Claimant against Defendant.

 

Issue three: whether Defendant is entitled to judgment on the counterclaim

 

44.             The counterclaims have been reproduced in this judgment, and I do not need to set it out here. A counterclaim is an independent action, and the burden of proof rests on Defendant. See Sections 131[1] and 136[1] of the Evidence Act, 2011, and U. B. N. Plc v. Ravih Abdul & Co. Ltd [2019] 3 NWLR [Pt 1659] 203 at 224, Tyonex Nigeria Limited & Anor v. Pfizer Limited [2020] 1 NWLR [Pt 1704] 125 at 161 and Balogun v. Balogun & Anor [2017] LPELR-45683[CA] 27. Defendant’s witness adopted his evidence in support of Defendant’s defence to the principal claim for the counterclaim, and tendered Exhibit D8 which was dumped on the Court. As a general rule, a statement of account cannot on its own amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account should adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at. See Nagebu Company Nigeria Ltd & Anor v. Unity Bank Plc [2014] 7 NWLR [Pt 1405 42 at

84.

 

45.  Defendant claims N19,484,392.80 and interest against the Claimant for the mortgage loan granted to the Claimant while in its employment. The Claimant denied indebtedness to Defendant for N19,484,392.80, but admitted that he took N26,820,000.00 mortgage loan from Defendant which is for 15 years tenor effective June 2014 at 5% interest per annum and the “whole redemption of the agreement is not due.” The Claimant also admitted that N13,404,282.36 was deducted quarterly between October 2014 and January 2019 from his salary, but contends that the repayment of the loan was frustrated by Defendant because of his wrongful dismissal. Defendant did not file a reply to the defence to counterclaim to clarify or deny this fact rendering it admitted. As I said earlier, even though Defendant tendered the Claimant’s statement of account, the witness did not speak to the document. It was dumped on the Court, and a statement of account, on its own, cannot fix the liability of the customer. Learned defence counsel argued in Defendant’s issue four that the Claimant admitted indebtedness for N13,415,717.64 and submits that Defendant is entitled to the admitted sum, and urged the Court to enter judgment in Defendant’s favour for N13,415,717.64. However, Defendant did not controvert the Claimant’s evidence that the mortgage loan is for 15 years tenor effective June 2014 and that the “whole redemption of the agreement is not due.” Defendant also did not tender the mortgage agreement or adduce any other evidence to support the claim. Therefore, despite the Claimant’s admission, given that the mortgage loan is for 15 years tenor effective June 2014 and the “whole redemption of the agreement is not due”, I am of the view that this action is premature. Based on the evidence before me, I hold that the cause of action has not accrued. However, it is not correct that the repayment of the loan has been frustrated by the Claimant’s wrongful dismissal. In Lewis v. United Bank for Africa Plc [2016] 6 NWLR [Pt 1508] 329 at 346 – 347, the Supreme Court laid the matter to rest. The Court held that where “an employer has fully performed his obligation under a contract for personal loan by making available the loan and the next step is the obligation for repayment by the employee within the conditions of the loan agreement, the obligation of the employee does not cease because his employment has ended. This is because mere hardship, inconvenience or other unexpected turn of events which have created difficulties, though not contemplated, cannot constitute frustration to release the employee from that obligation. Not even the death of the employee, grave as that might be, would alter the course of events of the repayment as his estate would bear the liability.”  

               In this premise, the third issue for determination is resolved in the negative.

 

Consideration of the counterclaims

 

46.             Relief one is for N19,484,392.80 [nineteen million four hundred and eighty four thousand three hundred and ninety two naira eighty kobo] only being the loan advanced to the Claimant and all accrued interest thereon until the day of judgment. I found in the preceding paragraph that the cause of action has not accrued and this action is premature. Accordingly, I hold that despite the Claimant’s admission, this claim has not been established. It is hereby refused.

 

47.             The second relief seeks post-judgment interest at the rate of 25% per month until the judgment debt is liquidated. Defendant did not adduce any evidence to support the claim for 25% interest, and even though this Court is empowered by Order 47 Rule 7

of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, to award postjudgment interest at the minimum rate of 10% per annum, having found that this action is premature and refused the principal claim, this claim suffers the same fate. It is refused. 

 

48.             The third relief is for cost of the action. Generally, cost follows events in litigation, and a successful party is entitled to costs. See Egypt Air Limited v. Ibrahim & Anor [supra]. However, having refused reliefs one and two above, the basis for award of costs does not exist. Consequently, this claim is equally refused. 

 

Judgment is entered accordingly.

 

……………………………….…..

IKECHI GERALD NWENEKA

JUDGE

             22/10/2024

 

Attendance: Parties absent

 

Appearance:

 

Jiti Ogunye Esq. with Ifeoluwa Olawoyin Esq for the Claimant

Olanrewaju Osinaike Esq. with Wole Adesola Esq., Raphael Ipinyoni Esq. and O. Oshungboye Esq. for Defendant