Color

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 1st day of November, 2024                 SUIT NO:  NICN/PHC/38/2023

 

BETWEEN:

NWIKINA, BARIKUI LOVINA                                    ---------------     CLAIMANT

 

AND

 

U&C MICROFINANCE BANK LTD                ----------------               DEFENDANT 

           

Representations:

S. Igwe for for the Claimant

G. J. Okirigwe for the Defendant.

 

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 24th of April, 2023 along with verifying affidavit, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

a.         An order that the Claimant is still a staff of the Defendant and should be paid all outstanding salaries and all entitlements due her. OR

b.         An order that the dismissal of the Claimant by the Defendant on grounds of fraud without giving her the opportunity to defend herself is unlawful, malicious, oppressive and a denial of fair hearing on the Claimant, thereby entitling her to the reliefs sought.

c.         The sum of N70, 000,000.00 (Seventy Million Naira) as general damages for unlawful termination of the Claimant's appointment, breach of the contract of employment between the Claimant and the Defendant and the Defamation of the Claimant's character including the agony and trauma suffered by the Claimant owing to Defendant's conduct.

d.        10% interest on the judgment sum from the day judgment is given till same is liquidated.

Responding to the complaint and statement of facts, the Defendants on the 24th day of May, 2023 filed a memorandum of conditional appearance accompanied by statement of defence, witness statement on oath, list of witnesses, list of documents and copies of the said documents to be relied upon. Along with the statement of defence, the Defendant filed a counter-claim.

 

Accordingly, the Claimant on the 4th day of October, 2023 filed a reply to the Defendants' statement of defence and a defence to the counter claim.

 

Based on the foregoing, both parties adopted trial by records pursuant to Order 38, Rule 33 of the rules of this court and arising from the records, the Claimant pleaded 10 documents through the list of documents filed on the 25th April 2023, which are hereby marked as Exhibits C2 – C11, Based on the list of document Exhibit C2 is Claimant's letter of temporary appointment dated 31st August, 2005, Exhibit C3 is Claimant's letter of regularization of appointment dated 20th July, 2006, Exhibit C4 is  Claimant's letter of promotion dated 17th  August, Exhibit C5 is Claimant's second letter of promotion dated 13th July, 2015, Exhibit C6 is Claimant's purported letter of dismissal dated 28th June, 2017, Exhibit C7 is Claimant's joint letter of appeal for reinstatement dated 3rd July. 2017, Exhibit C8 is Claimant's letter of appeal for reinstatement dated 24th July. 2017, Exhibit C9 is Defendant's letter allegedly converting Claimant's dismissal to termination of appointment dated November 26 2018, Exhibit C10  is Claimant's solicitor's letter to the Defendant dated 20th May, 2022, Exhibit C11 is Defendant's reply to Claimant's solicitor's letter dated 1st July, 2022.

Arising from the statement of fact and witness statement on oath, the case of the Claimant is that the claimant was offered a temporary appointment as a Cashier by the Defendant on the 31st August 2005. She alleged that on the 20th day of July, 2006, her employment was regularized. She alleged that over the year she rose to through the ranks, on the 17th August 2011 she was promoted to Assistant Bank Officer and on the 13th July 2015 she was promoted to Senior Bank Officer and has never been queried. But that sometime in June 2017 she was invited by the defendant’s Board of Audit Committee wherein she was questioned on her knowledge concerning 3 accounts, that she informed the panel that she was still in the process of opening the said accounts before she was transferred to another unit. Thereafter she was dismissed as a staff of the Defendant for allegedly involvement in a fraud against the Bank without giving her the opportunity to defend the allegation of fraud, or even reinstate her after they recovered the money from the actual culprit, hence this suit.

On the part of the Defendant, the Defendant pleaded 11 documents marked as Exhibit D2 – D12. From the list of document Exhibit D2 is a copy of the Letter of Temporary Appointment of the Claimant dated 31st August 2005, Exhibit D3 is a copy of the letter of Regularization of Appointment of the Claimant dated 20th July, 2006, Exhibit D4 is a copy of the letter of promotion dated 17th April, 2011, Exhibit D5 a copy of the letter of promotion dated 13th July, 2015, Exhibit D6 is copy of the letter of Dismissal of the Claimant dated 28th June, 2017. Exhibit D7 is a copy of the letter of Appeal for reinstatement dated 3rd July, 2017, Exhibit D8 is a copy of the letter of Passionate Appeal for Reinstatement dated 24th July, 2017, Exhibit D9 is a copy of the letter for converting of Claimant’s dismissal to termination of appointment dated November 26, 2018, Exhibit D10 is a copy of the letter of unlawful termination of appointment dated 20th May 2022, Exhibit D11 is a Copy of letter of the Defendant's reply to Claimant's solicitor's letter of unlawful termination of Appointment dated July 1, 2022, Exhibit D12 is a copy of the Report of the Investigation Panel dated 20th June, 2017.

Arising from the statement of defence and witness statement on oath, the case for the Defendant is that the claimant was indeed a staff of the defendant who with time was promoted to various positions, but at the time of her dismissal she was a Senior Bank Officer. That the Defendant was initially known as Choba - Uniport Community Bank (Nig) Limited but now known as U & C Microfinance Bank Ltd. The Defendant alleged that sometime in March 2017, the Defendant discovered that fraud had been perpetrated within its system to the tune of about N 11, 642, 295.33 (Eleven Million, Six Hundred and Forty-Two Thousand, Two Hundred and Ninety-Five Naira Thirty-Three kobo), the said fraud involved unauthorized postings and withdrawals from pending Accounts of the bank without vouchers. It was stated that the Defendant constituted an Investigative Panel whose membership comprised of its Board Members to thoroughly investigate the matter for the purpose of finding out the true facts of the matter, and that most of the employees of the Defendant including the Claimant were invited by the Investigative Panel for the purpose of obtaining information from them and they were individually interrogated as to their role and involvement in the fraud. Furthermore, from the investigation it was discovered that the claimant authorized the payment of a cheque without following the due procedure. It was alleged that based on the misconduct of the claimant that the investigating panel recommended that the claimant be dismissed and she was dismissed. The court was informed that the claimant was not diligent in her work and was accorded fair hearing and that the claims of the claimant are baseless and ought to be dismissed.

The Claimant filed her final written address on the 9th of October, 2024 and arising therefrom, counsel to the Claimant Sunny Igwe Esq. formulated a lone issue for determination to wit:

Whether in the circumstances of this case, the dismissal of the Claimant for fraud by the Defendant was lawful.

Counsel submitted that it is trite law that where a person is accused of a criminal offence, he must first be tried in a court of law where the complaints against him will be examined in public and where he will get a fair hearing as set out in the Constitution. Where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand. Counsel cited Olarewaju v. Afribank (Nig.) Plc (2001) 13 NWLR (Pt. 731) 691 at pages 703-704

Counsel stated that from paragraph 7-10 of the claimant’s statement of claim and paragraphs 3(a-c) of the defendant’s statement of defence, the Claimant was indeed interviewed by the members of the Board of Directors of the defendant for the alleged fraud but that no document or letter was issued to her on any allegation of fraud before the interview thereby denying her the opportunity to make adequate preparation to defend herself neither did the Defendant hand her over to the police to investigate the crime. Counsel stated that the implication of the foregoing is that at the time the claimant was being interviews that no case of fraud was presented before the Claimant nor was she aware of any facts upon which the allegation of fraud was premised and that no opportunity was given to her to defend such direct allegation of fraud and that based on the decision of the court in Olarewaju v. Afribank (Nig.) Plc (supra) the dismissal of the claimant falls short of the requirement of the law.

Counsel further submitted that based on the analysis above, and also in view of the fact that no court of law held the Claimant to be guilty of any fraud and that the Investigative Panel of the Defendant being bereft of the jurisdiction to investigate crime, it follows therefore, that the fraud on which Claimant's dismissal was premised was not established.

Counsel stated further that since the members of the panel that allegedly investigated the alleged fraud by the claimant against the Defendant are the owners of the Defendant who has an interest in the subject matter of the alleged investigation, their act runs contrary with the principle of natural justice to the effect that no one can be a judge in his own cause. Counsel cited Ani v. Otu (2023) 8 NWLR (Pt 1886) 301 at page 361, and that the decision to dismiss the Claimant from her employment ought to be rendered void, in other words that the Claimant is still validly a staff of the Defendant entitled to all the salaries and commensurate promotion salary increases in the employment of the Defendant. Counsel added that the consistent promotion of the Claimant proves the Claimant to be a diligent staff and that subjecting her to undeserving trauma and stigma of a fraudulent allegation with no basis whatsoever and with the Defendant being a judge in its cause, Ought to attract damages against the defendant for wrongful termination of her appointment and urged the court to so hold.

In reaction to the foregoing, the Defendants filed their final written address on the 19th day of September, 2024 and arising therefrom, Counsel to the Defendants, G. J. Okirigwe Esq. formulated three issues for determination to wit:

1.        Whether from the facts and circumstances of this case, especially documents pleaded and relied upon, the Claimant proved on a preponderance of credible evidence that her employment with the Defendant was wrongfully determined.

2.        Whether from the facts and circumstances of this case, the Claimant proved her case of defamation against the Defendant.

3.        Whether the Defendant based on its Counterclaim proved that the Claimant is indebted to it in the sum of N2, 894,383.66 (Two Million Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty-Six Kobo) being loan granted to the Claimant by the Defendant.

In arguing issue one counsel submitted that the law is trite that in an action for unlawful or wrongful determination of a contract of employment, the burden is on the employee suing for unlawful or wrongful determination of his contract of employment to prove that the determination of his contract of employment or appointment was unlawful or wrongful. And to discharge this burden the employee must prove that he is an employee of the employer; Place before the Court the terms and conditions of his employment; who can appoint and who can determine his employment; and in what circumstances his appointment can be determined. Counsel cited Imasuen v. University of Benin (2010) 2 NWLR (Pt.1182) 591 @ 594, ratio 1, particularly @ 613, paras C- D.

In consideration of the factors stated above, counsel stated that from the pleadings of the parties and 6 documents relied upon there is no dispute whatsoever that the Claimant was an employee of the Defendant for about 12 years being from August, 2005 to June, 2017. In the aspect of terms and condition of contract, counsel stated that the Letter of Regularization of Appointment dated 20th July, 2006 contain the terms and conditions of the Claimant's contract of employment with the Defendant. With regards to who has the power to determine the appointment counsel submitted that the Defendant employed the Claimant and had the power to determine the appointment. On what circumstances his appointment can be determined counsel stated that the Claimant did not plead in what circumstances her appointment could be determined, but that the law adequately provides for the circumstances under which a contract of employment can be determined depending on the nature of the contract of employment. That a contract of employment may either be statutory or common law rules or both, that under the Common law rules, the employer can determine the contract of his employee at any time and for no reason at all. But where the employer determines the contract contrary to the term of the contract he must pay damages for breach. But that the motive which impels an employer to determine a contract of employment is irrelevant. Counsel cited See Wilson v. A. G. Bendel State (1985) 1 NWLR (Pt.4) 572 @ 574, ratio 11, particularly @ 604, paragraphs B -D. 7. While an employment laced with statutory flavour is protected or governed by statute or laid down regulations made to govern employee. And determination of such contract is based on the statute. Counsel cited See C.B.N v. Igwillo 14 NWLR (Pt 1054) @ 396 - 397, ratio 2, particularly @ 420, paras. A – C.

Counsel submitted that the Claimant's employment is not a statutory flavored as the Letter of Temporary Appointment dated 31st August, 2005 and the Letter of Regularization of Appointment dated 20th July, 2006 contain the terms and conditions of the Claimant's contract of employment with the Defendant and they both clearly spelt out how the Claimant's appointment can be determined. Counsel added that there are circumstances under the Common law or non-statutory contract of employment where the law allows an employer to determine the contract of employment of his employee summarily or peremptorily without notice and even terminal benefits, and one of such circumstances is where the employee is dismissed for gross misconduct. Counsel stated that the claimant dismissal is one of those circumstance as she was found culpable of making the defendant who is a financial institute  incur financial losses to the tune of N11, 642,295.33 (eleven million, six hundred and forty two thousand, two hundred and ninety-five Naira, thirty-three Kobo), that though the claimant in her stated to have not committed the fraud but her mistakes facilitated the commission of the fraud against the Defendant which was shown in her letters dated d 3rd July, 2017 and 24th July, 2017, hence her direct or indirect omissions and commission aided the perpetration of fraud against the defendant. Counsel added that it is trite that an employee can be summarily or peremptorily be dismissed without notice and wages where he is guilty of gross misconduct, Counsel cited N. N. B. Plc v. Osunde (1998) 9 NWLR (PT.566}) 511 @  514, ratio 5, particularly @ 52 para  G.

Counsel submitted also that before the dismissal the claimant was accorded fair hearing as shown from the documents presented before the court and that the Claimant never complained in her two letters of appeal for reinstatement to the defendant after her dismissal that she was not heard or given a fair hearing. Counsel added that the claimant failed to prove that her dismissal was wrongful. Counsel cited Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (Pt.457) 632 @ 644, paras. E – H. counsel submitted that by Section 11(5) of the Labour Act Cap. L 1, Laws of the Federation of Nigeria, 2004, either party to a contract of employment can terminate same without notice, by reason of the same conduct by the other party, as would have enabled him to do so, before the making of the Act. Counsel stated that the section of the Act just cited gives right to either party to a contract of employment to bring same to an end without notice, in view of the damage to the interest of the Defendant caused by the commissions or omissions of the Claimant there was no way the Defendant could have confidence and trust in the Claimant, hence that the defendant is entitled to dismiss the Claimant for gross misconduct notwithstanding the terms and conditions of employment. Counsel added that it is trite that an employee cannot be forced on an unwilling employer.

On issue two counsel submitted that the Claimant did not plead anything concerning the essential ingredients of the tort of defamation which are whether there was a written statement or words; whether the statement/words were written by the defendant; whether the statement/words were written on or concerning him; whether the statement/words is/are calculated and intended to disparage his reputation and character, as to lower him in the estimation of his Community, society or profession, caused him to be shunned or avoided; and whether the statement/words was/were communicated or published to a third party apart from him by the Defendant. Counsel submitted that the claimant never referred to any particular written statement or words of the Defendant as being defamatory of her. But that though the letter of dismissal was written to the Claimant but whether or not it constitutes defamation to the Claimant was not proved at all, and that the claimant failed to prove whether the said letter of dismissal was intended by the Defendant to disparage her reputation and character, or to lower her in the estimation of her Community, society or profession or to cause her to be shunned or avoided. Also, that the Claimant failed to call any reasonable person or ordinary right thinking member of the society to testify on the alleged damage done to the Claimant's reputation and character by the said letter of dismissal, and that the claimant failed to prove that the Defendant published the letter to a third party. Counsel cited Ningi v. First Bank of Nigeria (1996) 3 NWLR (Pt.435) 220.

On the third issue counsel submitted that the Defendant in their Counterclaim against the Claimant pleaded and relied on its Letter dismissing the Claimant from its employment to established that the Claimant is indebted to it in the sum of N2, 894,383.66 (two million, eight hundred and ninety-four thousand, three hundred and eightv-three Naira, sixty-six Kobo) being loan granted to the Claimant by the Defendant, that the Claimant in her Reply to the Statement of Defence and Defence to Counterclaim failed to specifically deny her said indebtedness to the Defendant and is therefore deemed to have admitted same. Counsel added that fact admitted needs no further prove and urged the court to dismiss the claims of the claimant and enter judgment for the defendant.

In response to the submissions of the defendant’s counsel, counsel to the Claimant on the 25th day of October 202 filed a reply on points of law, he rehashed his earlier submission in his final written address that where the dismissal of an employee is based on a criminal charge or allegation, such allegation must first be proved before the dismissal, that the claimant was dismissed based on a criminal allegation. Counsel submitted that the defendant’s act of dismissal is void in other words there was no dismissal.

Counsel submitted that every libel is of itself a wrong in regard to which the law imputes general damages. That if a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete and he needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed by the law. Counsel submitted further that the Claimant's dismissal for fraud via a letter of summary Dismissal and the subject letter of Claimants Summary Dismissal is before court and that the letter alone, passes all the tests for libel. Counsel cited Abalaka v. Akinsete (2023) 13 NWLR (Part 1901) Page 343. Counsel added that fraud being input in the dismissal has injured the reputation of the Claimant and subjected her to contempt, ridicule and disdain.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses as deposed in the witness statements on oath for both parties and carefully evaluated all the pleaded documents. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination of this suit by this court are to wit:

1.        Whether or not the termination of the Claimant’s employment by the Defendant was wrongful, unlawful and liable to be set aside.

2.        Whether or not in view of the facts and evidence before this court, the Claimant is entitled to the reliefs sought.

In resolving issue one, the resolution must commence upon consideration of what an employee who alleges wrongful termination of his employment must plead and prove, the court in OAK PENSIONS LIMITED & ORS v. MR. MICHAEL OLADIPO OLAYINKA (2017) LPELR-43207(CA) held that, "The law is now trite that in cases for claims based on alleged wrongful or unlawful termination of employment, the burden is on the claimant to satisfactorily prove that: - (a) He was an employee of the defendant; (b) The terms and conditions of the employment and; (c) That the employer in fact breached the terms and conditions of the employment and the manner in which the breach occurred in the termination of the employment. SeeWestern Nigeria Development Corporation vs. Abimbola (1966) 4 NSCC. 72 @ 88”.

Based on the foregoing it is the duty of the claimant to first establish before this court that he is an employee of the defendant before the court determines whether or not the termination was wrongful,  In an attempt to prove such employment, letter of employment will be the best determining factor.  It is imperative to state that contract of employment is also one considered strictly from the terms, and just like other contracts, it is in writing. Every contract of employment contains the terms and conditions that will regulate the employment or the relationship such as terms on termination, notices, wages, and benefits are usually contained in the expressed contract of service. See MRS. H. N. ONYEUKWU v. FIRST BANK OF NIGERIA PLC (2015) LPELR-24672(CA).

Based on the foregoing, it is the duty of the claimant to establish that he is an employee of the defendant and what type of employment it is. In this regard the claimant has tendered exhibits C2 and C3, while Exhibit C2 is Claimant's letter of temporary appointment dated 31st August, 2005, Exhibit C3 is Claimant's letter of regularization of appointment dated 20th July, 2006, to establish that the claimant was an employee of the defendant. This fact is not necessarily in issue as the defendant in paragraph 2(a) of the Defendant’s statement of defence is ad idem to the fact that the claimant was her employee, thus the issue of whether or not the claimant was an employee of the defendant is not in contention as parties are in agreement that the claimant was an employee of the defendant.

The next question that follows naturally for determination is what are the terms and conditions of the contract, it is interesting to note that the claimant was silent on this, however I have considered the temporary appointment letter and the regularization of appointment letter which the defendant had referred to in paragraph 2(a) of the statement of defence and have observed that it contained some terms and conditions of the contract.

On this basis, I need to state that there are mainly 3 categories of contracts of employment- namely; (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated by statute often referred to as employment with statutory flavour. See YUSUF SHUAIBU & ORS v. NIGERIAN BOTTLING COMPANY PLC (COCA-COLA) (2020) LPELR-52110(CA).

Bearing the foregoing in mind, the nature of the claimant’s employment needs to be determined. In this regard, the document which contains the terms and condition of service is Exhibit C3 which is the letter of regularization of appointment. It is worthy to note that, except in employment governed by statute, the procedure for employment and discipline in any other form of employment is governed by the terms under which the parties agreed to be master and servant. This court has observed that the employment of the claimant is not one clothed with statutory flavor but a mere master and servant relationship, in view of the fact that the relationship was not governed or regulated by a statute, therefore cannot be said to be spiced with statutory flavor.

Be that as it may, it will be appropriate to consider whether or not the employer in fact breached the terms and conditions of the employment and the manner in which the said breach occurred in the termination of the employment. In this perspective, the pleading as well as the terms of the contract will be considered.

I reckon that arising from the case of the claimant, she alleged that she was an employee of the defendant where she rose through the ranks and that sometime in June 2017 without any initial query she was invited by the defendant’s Board of Audit Committee wherein she was questioned on her knowledge concerning 3 accounts, she informed the panel that the said accounts were still in the process of being opened before she was transferred to another unit. Thereafter she was dismissed as a staff of the Defendant's for allegedly involvement in a fraud against the Bank without giving her the opportunity to defend the allegations of fraud.

Based on the foregoing, Counsel for the claimant stated that the claimant was dismissed for fraud and he argued that where a person is accused of a criminal offence, he must first be tried in a court of law where the complaints against him will be examined in public and where he will get a fair hearing as set out in the Constitution. Where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand.

In addressing counsel for the claimant’s contention, I need to consider the case of AVRE V. NIPOST (2014) LPELR-22629(CA)  (Pp. 36-38 paras. B) where the court held that:

 

"The law is that ordinarily a master is entitled to dismiss his servant for good or bad reasons or for no reason at all; that where parties have reduced the terms and conditions of service into agreement, the conditions must be observed; that where a contract of employment had been properly terminated, intention or motive for doing so becomes totally irrelevant; and that where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to him to explain, justify or else defend the alleged misconduct. See the following authorities - Nigerian Oil Mills Ltd. V. Daura (2000) 1 NWLR (Pt. 639) 78, Arinze V. First Bank (2000) 1 NWLR (Pt. 639) 78; UzohoV. Task Force on Hospital Management (2004) 5 NWLR (Pt. 867) 627 and Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457) 632, where the Supreme Court held - "Before an employee can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. …It is not necessary, nor is it a requirement under S.33 of the 1979 Constitution [S.36 of 1999 Constitution] that before an Employer summarily dismisses his Employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the Employee is for gross misconduct involving dishonesty bordering on criminality. - - - … See Arinze V. First Bank (supra), where this Court per Olagunju, JCA states the position quite clearly as follows - "It seems to me from the perspective of the decisions on the powers of an Employer to dismiss summarily his Employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence." Per AUGIE ,JCA (Pp. 36-38, paras. B-C) (emphasis mine).

 

In addition the court in CHINEDU OGUEJIOFOR v. ACCESS BANK PLC (2020) LPELR-49583(CA) held that, "The jurisprudence of labour and employment contract, has over the years with the aid of decisions of the Apex Court and of this Court, been fairly settled. The Courts will not allow any employee whose employment has been validly terminated when the employer has observed and complied with the judicial templates for termination or dismissal of an employee, to seek to void the decision of the employer by raking up issues of allegation of crimes when the employer's decision to terminate or dismiss the employee was anchored on misconduct for which the employee was accorded a fair hearing. To do otherwise would amount to a situation where it will almost be impossible for an employer to exercise in good faith, its "sovereign" powers and authority in a free market economy as encapsulated in the provision of Section 16 (1); (2) & (3) of the Constitution, 1999 as to hire and fire any of its employees whose conduct was found to have contravened the terms and conditions of the employee's contract of employment."

 

Based on the foregoing authorities, I must state that there is no requirement in law that before an Employer can summarily dismiss his Employee from his services, the Employee must be tried before a Court of law. Moreso, it is imperative to state that, an employer has the power to dismiss an employee for acts considered to be an infraction to the organization. However, the dismissal should not be done without the courtesy of fair hearing accorded to the employee. Hence the contention that before the dismissal of the claimant for fraud he must first be tried in a court of law is hereby discountenanced.

 

The claimant has further argued that though the Claimant was indeed interviewed by the members of the Board of Directors of the defendant for the alleged fraud but that no document or letter was issued to her informing her on any allegation of fraud before the interview thereby denying her the opportunity to make adequate preparation to defend herself.

 

In DR TAIWO OLORUNTOBA-OJU & ORS v. PROFESSOR SHUAIB O. ABDUL-RAHEEM & ORS (2009) LPELR-2596(SC) the court held that, "In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the Courts satisfaction. (a) That the allegation was disclosed to the employee; (b) That he was given a fair hearing; (c) That the council believed that the appellants committed the offence after hearing witnesses. Bamgboye v. University of Ilorin (1990) 10 NWLR pt 622 pg 290 SC."

Also in BENUE BREWERY LIMITED v. IKECHUKWU OKONTA (2024) LPELR-61878(CA) the court held that,"...My lords, I am aware that even in employment protected by statute, though not the case in the instant appeal, before an Employer can dispense with the services of his Employee, all that he needs to do is to afford the employee an opportunity of being heard before exercising his power of Summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. Thus, there is no requirement in law that before an Employer can summarily dismiss his Employee from his services, the Employee must be tried before a Court of law even where the accusation against the Employee is for gross misconduct involving dishonesty bordering on criminality. All that is required is for the Employer to satisfy the rule of natural justice and fair hearing, that a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defense. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him. See Yusuf V. Union Bank (1996) 6 NWLR (Pt. 457) 632, per Wall JSC see also Barr Mrs. Ramatu Umar Bako V. British Council Nig. & Anor (2022) LPELR - 58127 (CA) per Sir Biobele Abraham Georgewill JCA; Ade V. Action Aid Int'l Foundation (Nig.) Ltd/Gte. (2023) LPELR - 59609(CA), per Sir Biobele Abraham Georgewill JCA; Avre V. NIPOST (2014) LPELR - 22629 (CA)."

 

I have evaluated the entire facts presented by the Defendant and I find that the defendant established the fact that the Claimant was afforded the opportunity to explain her side of the story as regards the unauthorized posting of cheque and the opening of accounts that lead to the alleged fraud committed against the defendant by tendering Exhibit D12 which is a copy of the Report of the Investigation Panel dated 20th June, 2017, where several persons as well as the claimant were called and interviewed with regards to the unauthorized posting that lead to the fraud against the Defendant, I will add that the claimant’s interview based on the report was conducted on the fourth day the panel commenced investigation. Hence the fact that she was not given a formal letter or invitation paper to the said interview is immaterial, the most important issue is that she was aware of the situation and was interviewed and questioned based on her knowledge on the unauthorized posting that led to the fraud on the defendant, Moreso the report reflected all the persons called and interviewed on same issue. Thus it is sufficient if the defendant conveys to her the nature of the accusation against her or the reason for which she was being interviewed. Accordingly, I find that the Claimant was afforded the opportunity to explain her side of the story as regards the unauthorized posting of cheques and the opening of accounts that led to the alleged fraud committed against the defendant, consequently, the claimant’s counsel contention that no document or letter was issued to her informing her of any allegation of fraud before the interview is hereby discountenanced.

Another contention by the claimant’s counsel is the fact that the members of the panel that investigated the alleged fraud committed by the claimant against the Defendant are the owners of the Defendant who are interested parties in the subject matter of the alleged investigation, this runs contrary with the principle of natural justice to the effect that no one can be a judge in his own cause.

 

In AMINETU OMOLOLA SALAMI v. UNION BANK OF NIGERIA PLC (2010) LPELR-8975(CA) the court held that, "In any event, from the cases I have cited hereinbefore, it would appear that the position of the law is that when an employer decides to dismiss an employee on ground of gross misconduct, the employer is duty bound to afford the affected employee fair hearing. It would appear to be trite that a hearing need not attain the standard or form obtainable in a Court before it can be said to be fair. Where a matter is not before a Court of law, what is generally required in order to accord fair hearing to a person, is that there be an identifiable person or body of persons empowered and capable of going into the issue in disputation, and that the person who is to be adversely affected by the decision, act or proceeding, be given adequate notice of what is proposed and any allegation against him so that he will be afforded the opportunity to know the case against him to enable him prepare and answer the case against him."

Moreso, the court in SKYE BANK PLC v. ADEDOKUN OLUSEGUN ADEGUN (2024) LPELR-62219(SC) laid down the requirement of fair hearing in the dismissal of an employee when it held that,

"Despite the fact that an employer has a right to dismiss an employee, the dismissal should not be wrongful. The major questions which the Court will consider in determining whether a dismissal is proper or wrongful will be: a) Was the dismissal carried out in line with the procedure laid down in the Employee Handbook or any document governing the employment relationship? b) Was the issuer of the letter of dismissal competent to do so? Or was the dismissal process carried out by a competent authority? c) Was the Employee afforded fair hearing during the dismissal process? The employer has the duty to ensure that it does not enigmatically raise its executive stick in oppression of the employee and it is important that every employer must be careful not to abdicate or abuse its powers. It has been held that, employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances, the law does not permit employers to act arbitrarily. The question of "whether there was fair hearing during the dismissal process?" is so weighty that, where the Court finds that an employee was not afforded fair hearing, it renders the dismissal wrongful entitling the employee to damages. Having said that, an employer has the duty to ensure that the internal inquiry process (or investigative panel hearing process) which was set up to hear and determine the allegations against an employee and based on which the employee was recommended for dismissal was done within the dictates of the law. ?The dictates of the law as regards fair hearing is predicated on two main points. Simply put, they are that, the employee must be given an opportunity to respond to the allegations against him/her and must have the opportunity to face his/her accusers as the case may be. Also, the persons sitting in the investigative panel should not be the same persons as his/her accusers. Where these have not been observed, it cannot be said that the employee was afforded fair hearing before the dismissal therefore rendering the dismissal wrongful. It should also be pointed out that an employee can be given an opportunity to present a case in defence of the allegations against him/her orally or in writing."

Based on the forgoing authorities, it need be stated that where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any. And just like earlier stated, there was no laid down rules that the defendant needs to follow as there is no provision for the defendant to issue the claimant with query before the termination of employment, thus the issue of non-issuance of query is of no moment in this case.

On the contention that members of the panel that allegedly investigated the alleged fraud by the claimant against the Defendant are the owners of the Defendant who have an interest in the subject matter of the alleged investigation, I have considered the report of the investigation which is Exhibit D12 and observed that the members of the panel were the Board of Audit committee and not the directors, moreover, the employer in a bid to observe the rule of fair hearing in the termination or dismissal of an employee is required to afford the employee an opportunity to be heard, the defendant not being a court, it is essential that there be an identifiable person or body of persons empowered and capable of going into the issue in disputation, secondly, that the person who is to be adversely affected by the decision, be given notice and the said notice need not be formal, the most important is that she was conveyed or aware of the issue which she was to face before the panel.

In considering whether or not the claimant was afforded an opportunity to appear before a panel and defend the alleged unauthorized posting, it is the considered view of this court that the claimant was afforded adequate opportunity to defend herself before the panel, this is because based on the content of Exhibit C7 and C8 which is also Exhibit D7 & D8 titled appeal for reinstatement dated 3rd July 2017 and 24th July 2017 made by the claimant, the claimant apologized for unintentional mistake and oversight that facilitated the commission of fraud against the defendant. Particularly in Exhibit C8, the claimant in her statement affirmed that she was responsible for opening the said accounts that led to the fraud against the defendant and also was responsible for authorizing the cheques used for the withdrawals that led to the fraud, though probably unintentional but it was the responsibility of the claimant to ensure due diligence before making approval for payment, the foregoing was also the finding of the panel in its report. Be that as it may, the grievance of the defendant was not just on the opening of account but the authorization of the cheque by the claimant for payment without further authorization, as the cheque ought to have gone to the head of operation for further authorization in view of the fact that the sum was above N500,000.00 limit, which was not done.  The following strengthens the court’s view that the claimant was indeed afforded fair hearing.

Having said all that, in resolving issue one as to whether or not the termination was wrongful, in the case of KEWALRAM NIGERIA LIMITED v. OLUGBENGA ROSIJI (2019) LPELR-49696(CA) the court held,

“…The law on which of the parties have the duty to prove whether the dismissal of the Respondent is wrong, unlawful and illegal is trite. The Appellant's counsel has submitted rightly that the burden is on the Respondent. This is clear and trite because, the law places responsibility on the party to prove what his allegation is and to prove any fact that he asserts. In fact, the burden is on the party who will lose if no evidence is adduced in the matter. See Imonikhe vs. Unity Bank Plc NSCQR Vol. 46 2011 page 554 and Ashabiaya & Ors vs. Olopede & Anor NSCQR Vol. 46 2011 page 373. There is no dispute from the record of appeal as shown in the pleadings of the parties before the lower Court that the Respondent was a staff of the Appellant, a company he has served for several years amounting to 22 years in total. There is no dispute that there was allegation of stealing made against him by the Appellant. It is also not in dispute that the Appellant made a complaint to the police which in exercise of their statutory duty, investigated the report and charged the Respondent to Court, along with others for conspiracy and stealing. The real contention is whether the dismissal was lawful. If no evidence is called, it is the Respondent that will lose. In the light of the pleadings, it is the Respondent that is alleging and asserting that the dismissal is unlawful. The burden to prove the unlawfulness of the dismissal is on the Respondent in the light of Exhibit KA5, the letter of dismissal. This is because it is the Respondent that is alleging that the dismissal was based on the criminal case before the Magistrate Court. The duty is on him to prove. That is trite and logical. See Aji vs. Chad Basin Development Authority & Anor (2015) 16 NWLR (Pt. 1486) 554 and Olanlege vs. Afro Continental (Nig.) Ltd (1996) LPELR-2568 (SC). The next question is what and how is the Respondent supposed to prove that the dismissal is wrongful and unlawful. In Morohunfola vs. Kwara State College of Technology (1990) LPELR-1912 (SC), the apex Court per Uwais JSC (as he then was) at page 16 held: "In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial Judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which has been breached would be admissible at the trial; and this will be fatal to the action since it will lack foundation. Shell-BP's case (supra)." In Obanye vs. Union Bank (2018) LPELR-44702 (SC), the Supreme Court per Kekere-Ekun, JSC at pages 24-25 held a similar position in holding further that, an employer has the right to fire an employee with or without a reason. This is what his lordship said: "The law is settled that an employer who has the right to hire also has the right to fire. The employer has an unfettered right to terminate the employee's employment. He may terminate for good or bad reason or for no reason at all. The motive for exercising the right does not render the exercise ineffective. See: Shitta-bey v. Federal Public Service Commission (1981) SC 40 @ 56; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Osisanya v. Afribank (Nig.) Plc (2007) 6 NWLR (Pt. 1031) 565." … I see no reason not to resolve the first issue in favour of the Appellant in holding that the dismissal of the Respondent is not wrong and unlawful as the Respondent had not been able to show the terms of the contract of employment which could have been used to determine whether the dismissal was in line with the terms and procedure. In the absence of that, the lower Court has gone ahead to do the impossible which is putting something on nothing and expecting it to stand. This is not possible in law and indeed even by the law of nature except in the realm of magic. Legality and magic has no meeting point just as morality, emotion and sentiment has no place in law. See Osareren vs. FRN (2018) 10 NWLR (Pt.162) 221 and PML (Nig.) Ltd vs. FRN (2018)7 NWLR (Pt.1619) 448."

On the strength of the foregoing authority, it is expedient to consider that in addition to ensuring compliance with the rules of fair hearing in dismissal of an employee, another critical aspect is to determine whether or not the defendant in terminating or dismissing the claimant’s employment followed the laid down procedure for such termination. The onus is upon the claimant to prove that the dismissal was not in accordance with the laid down procedure as provided in the terms of the contract. I have carefully examined the facts as pleaded by the claimant, I find that the claimant was silent on that aspect, Consequently, it is the case of the claimant that will fail if no credible evidence is adduced to prove that the procedure for the termination or dismissal was not followed.

This makes me look critically at, Exhibit C3 which is the Regularization of appointment that contains the terms and condition of employment, it only provides for three months’ notice or three months’ salary in lieu to be given upon termination by either party. There was no provision for dismissal.  At this point it will be apt to make a distinction between termination and dismissal of employment. In both cases of termination and dismissal, the employment of an employee is brought to an abrupt end, albeit with varying consequences. Where a contract of employment is terminated simpliciter, the employee is accorded the privilege of receiving the terminal benefits provided for under the terms of contract of the employment thereof. Characteristically, the right to terminate a contract of employment is mutually inclusive since either party may exercise it at will. Conversely, dismissal of an employment, more often than not, results in a loss of terminal benefit and it equally carries an unpleasant 'opprobrium' to the employee. See BANK OF AGRICULTURE LIMITED v. IYAMA P. GORDY (2021) LPELR-53822(CA). Per JOHN INYANG OKORO, JCA in UNION BANK OF NIGERIA PLC v. EMMANUEL ADEREWAJU SOARES (2012) LPELR-8018(CA) held that, "There is a clear distinction between termination of a contract of employment and a dismissal. Termination gives the parties the right to determine the contract at any time by giving the prescribed period of notice. Dismissal on the other hand, is a disciplinary measure which carries no benefits. See Adeko v. Ijebu-Ode District Council (1962) 1 SC NLR 349."

 

However the defendant counsel contended that the defendant had the right to summarily dismiss the claimant and that by virtue of Section 11(5) of the Labour Act Cap. L 1, Laws of the Federation of Nigeria, 2004, which provides that, either party to a contract of employment can terminate same without notice, by reason of the conduct by the other party, as would have enabled him to do so, before the making of the Act. Counsel argued that the section of that Act allows a party to a contract of employment to bring same to an end without notice, and that in view of the damage to the interest of the Defendant caused by the commissions or omissions of the Claimant there was no way the Defendant would have confidence and trust in the Claimant, therefore the defendant is entitled to dismiss the Claimant for gross misconduct notwithstanding the terms and conditions of employment.

In addressing this contention, the case of BALA WAZIRI v. BANK OF AGRICULTURE LIMITED (2023) LPELR-60477(CA) comes handy as the court held that, "It is no longer an issue for any disputations that at Common Law an employer has the right to dismiss his employee without notice or with notice on grounds of misconduct or willful disobedience, and where it is shown or found that an employer in dismissing his employee had acted in accordance with the terms and conditions of employment or other regulations, such a dismissal cannot be said or held to be a wrongful dismissal, bearing in mind that in purely Master-Servant contract of service the Court cannot, and would be very reluctant to, compel an unwilling employer to reinstate or accept his supposedly wiling employee, even where the dismissal is held to have been wrongful, except in cases of statutory employment. See Odiase V. Auchi Polytechnic (1988) 4 NWLR (Pt. 546) 477 @ PP. 491 - 492, Osisanya V. Afribank Nig Plc (2007) 6 NWLR (Pt. 1031) 565 @ p. 587."

Moreso, just as pointed out by the defendant counsel, Section 11(5) of the Labour Act provides and I reproduce, “Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice, by reason of such conduct by the other party as would have enabled him so to treat it before the making of the Act.

In light of the authority above, it is without doubt that the defendant has a right to summarily dismiss the claimant with or without notice once the claimant is found to be guilty of misconduct, provided it acted in accordance with the terms and conditions of employment, and in this case there is no laid down procedure in the terms and condition of employment presented by the claimant alleged to have been broken by the defendant or  laid down procedure which the defendant failed to follow and I so hold.

Having said that, it is worthy to note that the claimant had in paragraph 10 of her statement of claim stated that after much appeal to the defendant the dismissal was converted to termination and had tendered Exhibit C9 which is also Exhibit D9, Exhibit C3 which is the Regularization of appointment provides for three months’ notice or three months’ salary in lieu, it then means that the claimant is entitled to three months’ notice or three months’ salary in lieu. 

 

However I also need to point out that where an employee receives his terminal benefits after his contract of employment has been brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined.  See the case of GERAWA OIL MILLS LTD V. ABDULKADIR MANZO BABURA (2018) LPELR-44720(CA) where the court held that, "it is trite that where an employee receives his terminal benefits after his contract of employment has been brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. This is because the receipt of payment by the employee renders the termination mutual”.

It should be noted that the claimant never mentioned how much was her entitlements upon termination of her employment. However, the defendant had through exhibit C9 which is also Exhibit D9 titled commuting your dismissal to termination of appointment, stated all the entitlements of the claimant to be in the sum of N1, 977,537.86. However the defendant had alleged that the claimant collected a loan facility of the sum of N2,894,383.66 (Two Million, Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty -Six kobo) from the defendant which has accumulated to the tune of N3, 037,549.36, hence when the claimant’s entitlement is subtracted from the loan sum, the claimant still owes the defendant. I have also considered the claimant’s reply to the defendant’s statement of defence and counter claim as regards the said loan and I observed that the claimant in her statement stated and I reproduce” the claimant/defendant to the counter-claim states that the defendant/counter-claimant subjected her to great and untold hardship and that the repayment of the said loan was expected to be done from the salary of the claimant/defendant to the counter-claim in the employ of the defendant/counter-claimant”. Relying on the foregoing statement of the claimant this court considers the said statement plausible to the effect that the claimant’s entitlement had been paid through the offset of loan owed to the defendant. Essentially, it is the considered view of this court that the termination was not wrongful.

Having resolved issue one raised, I shall now consider the reliefs sought. Reliefs one is for: An order that the Claimant is still a staff of the Defendant and should be paid all outstanding salaries and all entitlements due her.

With regards to the said reliefs, it is settled principle under common law employment, that an employee cannot be imposed on an unwilling employer. The apex court in DANGOTE CEMENT PLC. v. PETER ASOM AGER & ANOR (2024) LPELR-61800(SC) held that, "The law, for many years now, has been that in employment that does not enjoy the benefit of statutory favour, but of the nature of pure master and servant relationship, an employee, cannot be imposed on an unwilling employer who rightfully exercises the power and authority to end the employment relationship, even if wrongfully, Obanye v. UBN, Plc (2018) 17 NWLR (pt. 1648) 375 (SC), Longe v. FBN, (2010) 6 NWLR (pt. 1189) 1 (SC), Banke v. Akure North L. G (2015) 6 NWLR (pt. 1455) 400, Agwu v. Julius Berger Nig. Plc (2019) 11 NWLR (pt. 1682) 165 (SC), Nwoye v. FAAN (2019) 5 NWLR (pt. 1665) 193 (SC)."

Based on Exhibit C6 which is the letter of dismissal, it is clear and apparent that the employment of the claimant had been brought to an end relying on the decision of the court in DANGOTE CEMENT PLC. v. PETER ASOM AGER & ANOR (supra) the claimant cannot be imposed on the defendant even if the termination was wrongful. On the part of outstanding salaries and entitlements due her, the claimant has not led any credible evidence to prove any outstanding salary. In the circumstance, relief one fails and is accordingly refused.

Relief two is for, “An order that the dismissal of the Claimant by the Defendant on grounds of fraud without giving her the opportunity to defend herself is unlawful, malicious, oppressive and a denial of fair hearing on the Claimant, thereby entitling her to the reliefs sought”

As earlier considered by this court, I will reiterate that, where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee and that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure. Considering the case of the claimant no laid down rules required to be followed was presented by the claimant to the court and proven by the claimant to have been breached by the defendant, an in depth analysis by this court reveals that fair hearing was duly accorded to the claimant. Consequently relief two is hereby dismissed without hesitation.

Relief three is for, ”the sum of N70, 000,000.00 (Seventy Million Naira) as general damages for unlawful termination of the Claimant's appointment, breach of the contract of employment between the Claimant and the Defendant and the Defamation of the Claimant's character including the agony and trauma suffered by the Claimant owing to Defendant's conduct.

General damages are damages which the law implies or presumes to have accrued from the wrong complained of, general damages are presumed to flow from the immediate, direct and proximate result of the wrong complained of. See GREMA WAWA v. FIRST CITY MONUMENT BANK PLC (2023) LPELR-60390(CA). I need to point out also that considering the case of the claimant, the claimant had not established to the satisfaction of this court that there was unlawful termination, or a breach of the contract of employment nor defamation of character.

 

Further in MRS. ANTHONIA AGBASI v. JEROME BEM BULA & ANOR (2022) LPELR-59055(CA) the court held that, "It is settled law that damages are awarded to the successful party in a matter so as to assuage or indemnify him for injury suffered as a result of the incursion into his/her rights by the adverse party."

 

This court having earlier decided that the termination of the claimant’s was not wrongful this relief is also bound to fail.

Relief four is for, “10% interest on the judgment sum from the day judgment is given till same is liquidated”.

The relief of interest is only grantable where there is a monetary award given in favour of a party, but in the instant case there is no award of any monetary sum in favour of the claimant, relief four is refused and accordingly dismissed.

Having addressed all heads of claim, there is no gainsaying that the issues for determination are resolved against the Claimant.

 

In the final analysis, the case of the Claimant is considered unmeritorious. I have no hesitation to dismiss the claims in its entirety.

I now turn to the counter-claim of the Defendant which as arising from the statement of Defence and counter-claim is thus:

 

1.      The sum of N2,894,383.66 (Two Million, Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty -Six kobo) being loan granted to the Claimant by the Defendant/Counter Claimant, which claimant has failed to repay.

2.      The sum of N10,000,000.00 (Ten Million Naira) only being and as representing general damages for a breach of contract of loan agreement and continued detention of the Defendant/Counter Claimant's fund by the claimant.

3       10% interest on the judgment sum from the day the judgment was delivered till same is liquidated.

Without doubt, it is trite that the foregoing counter-claim is an independent claim as it has a life of its own and can survive without the substantive suit. In Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, the court in describing a counter claim held that:

"It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff's case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act".

That said, the highlight of facts in relation to the foregoing counter-claims is that the claimant was a staff of the defendant who with time rose through the ranks. That the Defendant was initially known as Choba - Uniport Community Bank (Nig) Limited but now known as U & C Microfinance Bank Ltd. The Defendant alleged that sometime in March 2017, the Defendant discovered that fraud had been perpetrated within its system to the tune of about N 11, 642, 295.33 (Eleven Million, Six Hundred and Forty-Two Thousand, Two Hundred and Ninety-Five Naira Thirty-Three kobo), which fraud involved unauthorized postings and withdrawals from pending Accounts of the bank without vouchers. That the Defendant constituted an Investigative Panel who investigated and invited staffs including the claimant with intent to discover how the fraud happened. That from the investigation it was discovered that the claimant authorized the payment of a cheque without following the due procedure. That it was based on the misconduct of the claimant that the investigating panel recommended that the claimant be dismissed and she was dismissed. The claimant alleged that the claimant during her employment with the defendant collected a loan of the sum of N2, 894,383.66 (Two Million, Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty -Six kobo) which she has not repaid.

Reacting to the Counter Claim, the Claimant/Defendant with regards to the loan stated that the defendant/counter-claimant subjected her to great and untold hardship by terminating her employment and that the repayment of the said loan was expected to be done from her salary while she was in the employ of the defendant/counter-claimant, that the abrupt termination of her work and having no job for all these years has been a psychological trauma for her and that it has been difficult to get another job. Moreover she denied any involvement in the fraud that lead to her dismissal.

Bearing the foregoing in mind, I have also taken cognizance of the argument particularly proffered by counsel to the Claimant in relation to proof of the counter claim and consequently, the lone issue for the determination of the Counter claim is to wit:

Whether or not the Defendant/Counter-Claimant is entitled to the reliefs sought.

In resolving the sole issue, I must reiterate that the law is settled that the burden of proving the counter claim is on the Defendant as the court held in the case of AFOLAYAN  v. ARIYO & ANOR (2014) LPELR-22775(CA) that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence." Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B).

While the general rule in terms of proof of civil suit is rightly upon preponderance of evidence, it must be said that with regards to an allegation of crime, the proof must be beyond reasonable doubt. By virtue of the provision of section 135(1) of the Evidence Act 2011, the court in the case of KAYODE v. FRN (2014) LPELR-24418(CA) held that:

"The proof of a crime in a criminal trial is beyond reasonable doubt. The burden of proof squarely rests on the prosecution and does not shift to the accused in any manner howsoever. If there is any doubt in the mind of the Court it should enure to the benefit of the accused." Per GUMEL, J.C.A. (P. 28, paras. E-F)

 It is also of importance that I state that the burden of proving the commission of crime is squarely on the Defendant/Counter Claimant and upon evaluation of the evidence placed before this court, the simple question is whether the said evidence establishes beyond reasonable doubt that the defendant was allegedly involved in the acts that purportedly led to fraud in the defendant/counterclaimant bank.

I have carefully examined the evidence before this court, and on the whole I must say that no convincing evidence has been placed before this court to substantiate the allegations of fraud against the defendant, though the defendant acknowledged through Exhibit C7 and C8 that in the course of her duty she may have mistakenly omitted to do something that probably provided an opportunity for another to actually commit the crime, however there is no cogent and compelling evidence of complicity against the defendant.

Be that as it may, the claimant alleged that the defendant collected a loan facility of N2, 894,383.66 (Two Million, Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty -Six kobo) from the claimant and had failed to pay back. I must state that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts to which he asserts must prove that those facts exists. Just like in the case of a claimant, where the claimant must establish his claim on the strength of their case same rule is also applicable in this case, the defendant must establish his claim on the strength of his case and not on the weakness of the claimant case. See A.I.C. LIMITED V NIGERIAN NATIONAL PETROLEUM CORPORATION (2005) LPELR-6 (SC).

Per MISITURA OMODERE BOLAJI-YUSUFF, JCA In DOZZY GROUP OF COMPANIES LIMITED v. MR. L. N. OKEKE(2016) LPELR-41522(CA) held that, "It is the law that a counter claim is a separate, independent and distinct action from the main claim. The burden of proof is on the counter claimant to prove the counter claim by credible evidence just as in the main claim."

The claimant neither presented any form filled by the defendant or any other prove to show that indeed the defendant collected this loan and the actual amount involved. However, the defendant had stated that the loan facility was to be paid through her salary but upon the termination of employment with the claimant it became difficult to pay, this statement to me is an admission of fact and the law is trite that admitted facts need no further proof. See Din vs. African Newspaper of Nig. Ltd (1990) 3 NWLR (Pt.139) 392; Mba vs.Mba (2018) LPELR-44295 (SC) and Oguanuhu & Ors vs. Chiegboka (2013) 6 SC (Pt.v) 27.

Bearing the foregoing in mind, I shall consider each of the reliefs in order to determine which is grantable based on facts and evidence before this court.

Relief one is for, The sum of N2,894,383.66 (Two Million, Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty -Six kobo) being loan granted to the Claimant by the Defendant/Counter Claimant, which claimant has failed to repay.

I will recall that the claimant in her Exhibit D9 which is a copy of the letter commuting the defendant’s dismissal to termination of appointment dated November 26, 2018, the counter claimant while computing the entitlement of the claimant had stated that the entitlement of the claimant had been used to offset part of debt of the loan, hence granting the same N2,894,383.66 (Two Million, Eight Hundred and Ninety-Four Thousand, Three Hundred and Eighty-Three Naira, Sixty -Six kobo) against the defendant would amount to double jeopardy.

Apparently, the amount which the defendant ought to pay as balance remaining is different from the relief sought, and this court cannot act on speculations. The court in KEWALRAM NIGERIA LIMITED v. OLUGBENGA ROSIJI (2019) LPELR-49696(CA) held that, "A Court cannot base its decision on speculation. The lower Court projected the amount awarded based on Exhibit KA 31. This is therefore, a decision based on speculation. A Court is not permitted to do that. See Ivienagbor vs. Bazuaye & Anor (1999) 6 SC (Pt. 1) 149 and Orisa vs. State (2018) 11 NWLR (Pt. 1631)453."

 It is the position of this court that there is no clarity on the exact sum owed, this court cannot be left to speculate or infer the actual amount in question for the defendant to satisfy the balance of the loan, on that basis I am not inclined to grant this relief.

The sum of N10,000,000.00 (Ten Million Naira) only being and as representing general damages for a breach of contract of loan agreement and continued detention of the Defendant/Counter Claimant's fund by the claimant.

 I will reiterate that General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant's act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS. (2008) LPELR-8462(CA).

Award of general damages, is not made as a matter of course or based on speculation or sentiment, but on sound and solid legal principles, nothing useful has been placed before the court compelling enough to award general damages, consequently this relief is hereby refused.

 

Relief three is for, “10% interest on the judgment sum from the day the judgment was delivered till same is liquidated”.

 

It is a fundamental principle that the relief of interest is only grantable where there is a monetary award given in favour of a party, but in the instant case there is no award of any monetary sum in favour of the claimant, relief three is refused and accordingly dismissed.

Having addressed all the reliefs sought by the Defendant/Counter-Claimant, the sole issue formulated for the determination of the counter claim is resolved against the Defendant/Counter-claimant to the effect that in view of the evidence before this Court, the Defendant/Counter-Claimant is not entitled to any of the reliefs sought.

 In the final analysis, the counter-Claim lacks and same is accordingly dismissed.

 

Judgment is accordingly entered.

I make no order as to cost.  

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE.