WD
IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE YENAGOA JUDICIAL DIVISION
HOLDEN
AT YENAGOA
BEFORE
HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: THURSDAY 30TH JANUARY,
2025
SUIT NO: NICN/YEN/31/2022
BETWEEN:
ULEANYA
NGOZI…………………………………………..CLAIMANT
AND
FIRST
CITY MONUMENT CITY BANK LIMITED
……………………………………………………………......DEFENDANT
REPRESENTATION
Christopher
Asiafiti Esq for the Claimant
Pearl Mojola
Davids Esq holding the brief of Abiodun Daria Esq for the Defendant
JUDGMENT
The Claimant commenced
this suit by the Complaint filed on the 24th of October 2022 under
Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures)
Rules 2017. After the close of the hearing of the suit, the Claimant
applied to amend her Statement of Claim by adding additional reliefs to her
claims and the same was granted on the 31st of October 2024. The
Claimant filed the Amended Complaint and other accompanying process on the 21st
of November 2024. Therefore, reliefs sought by the Claimant in the Amended
Statement of Fact filed on the 21st of November 2024 are as follows:
a.
A DECLARATION that the Defendant did not follow
the laid down disciplinary requirements and procedure when the Defendant
Suspended, denied salaries and terminated the contract of employment of the
Claimant on the 20th November, 2021.
b.
A DECLARATION that the suspension, denial of
salaries and termination of the Claimant's employment in one breathe without
following the laid down disciplinary requirements and procedure constitutes a
breach of contract of employment.
c.
A DECLARATION that the Claimant is entitled to
earn salaries during the period of suspension from duty and terminal benefits
under the employment after the termination of her employment with the
Defendant.
d.
AN ORDER compelling the Defendant to forthwith
pay all terminal benefits payable to the Claimant as prescribed in the
Defendant’s Personnel Policy.
e.
AN ORDER compelling the Defendant to forthwith
withdraw the letter of termination and substitute same with an option of
allowing the Claimant to resign from the employment for want of proof of the
allegations adduced therein.
f.
AN ORDER awarding the sum of N50,000,000.00)
only as damages for breach of contract of employment.
g.
AN ORDER of awarding the sum of N10,000,000.00
only as special damages for loss of reputation following the wrongful
termination of employment of the Claimant.
h.
AN ORDER awarding fifteen Percent (15%) Post
Judgment interest in favour of the Claimant against the Defendant until the
judgment sum is fully complied with.
The Claimant predicated her claims on the Statement of Fact
and Witness Statements on Oath filed on the 24th of October 2022 and
Reply and a Further Witness’ Statement on Oath filed on the 6th of March
2023. The Defendant based its defence on the Amended Statement of Defence and a
Witness’ Deposition on Oath filed on the 23rd of June 2023.
At the plenary hearing on the 9th of March 2023
where the Claimant called her sole witness. The Claimant who testified for herself
hereinafter referred to as CW1 identified her Depositions made on Oath on the 24th
of October 2022 and 6th of March 2023 and adopted the same as her
evidence in support of her case. CW1 thereafter tendered Exhibits CW001, CW002,
CW003, CW004, CW005, CW006, CW007, CW008, CW009A – B, CW010A-B, CW011A-B,
CW012A-B A and CW013A-B.
On the 25th of July 2023, the Defendant opened
its defence, Mr. Innocent Njoku hereinafter referred to as DW1 testified for
the Defendant. DW1 identified his Statement on Oath filed on the 23rd
of June 2023 and adopted the same as his evidence in support of the defence of
the Defendant. DW1 thereafter tendered Exhibits DW001, DW002, DW003, DW004,
DW005, DW006, DW007, DW008, DW009, DW010A – C and DW011.
On the 31st of October 2024, the matter came up
for the adoption of the Final Written Addresses filed by Counsel. Learned
Counsel for the Defendant identified his Final Written filed on the 10th
of August 2023 and Reply on Point of Law filed on the 7th of
December 2023 and adopted the same as his legal submission in the aid of the
case of the Defendant and urged this Court to dismiss this suit.
Counsel for the Claimant identified his Final Written
Address filed on the 4th of December 2023 and adopted the same as
his legal submission in the aid of the case of the Claimant while urging this
Court to grant the claim of the Claimant.
CLAIM
OF THE CLAIMANT
The facts leading to this suit is that the Claimant was
first employed as a Direct Sale Agent in 2008 and rose to an Assistant Officer
II on the 27th of November, 2012 and to the rank of a Relationship Officer
after the confirmation of her employment on the 7th August, 2013. Stated
further that she received a notice from the Defendant on the 16th October
2021 asking her to proceed on one-month suspension from duty without pay on
allegations of failure to confirm employment status of some persons who were
granted loans by the bank and negligence of duty causing significant loss to
the Defendant. She proceeded on the one-month suspension without pay and
returned on the 20th November, 2021 to receive another letter
terminating her appointment with the Defendant on same date alleging the same
reasons as the suspension. She was the account officer on one Mr. Ikpangi Eseimokumo
Perekebina a customer of the Defendant until the termination of her employment
with the Defendant. That Mr. Ikpangi Eseinmokumo Perekebina, who has a salary
and other business accounts with the Defendant approached the Defendant
sometime in November, 2020 for a Salary plus Loan (SPL) but was denied of the
loan facility because of a bad credit report at the time.
Thereafter Mr. Ikpangi Eseimokumo Perekebina introduced the
SPL to other persons who were alleged to be staff of the Southern-ljaw Rural
Development Authority, Bayelsa State and caused to be processed relevant
account opening documents for the grant of the loan facility through the
assistance of a team of officers of the Defendant. The Claimant carried out the
processing of the loan facility accounts of the alleged members of staff of the
Southern-ljaw Rural Development Authority, Bayelsa State introduced to the
Defendant through Mr. Ikpangi Eseimokumo Perekebina in the company of Onyegbule
Ndubuisi Johnson and Ruth Oputa as account officers of the Defendant for the
said exercise. Upon completion of the account opening exercise, some of the
alleged staff of the Southern-ljaw Rural Development Authority, Bayelsa State were
granted the sum of N4,988,000 as SPL facility by the Defendant.
The Claimant stated that before final disbursement of the
SPL to the alleged customers, there was evidence that salaries were paid into
the salary accounts of the customers domiciled in the Defendant from the
Southern-ljaw Rural Development Authority. It is the duty of the Defendant's
Recovery Agent to further confirm commitment of their employer to pay-back the
loan before the Salary plus Loan should have been eventually disbursed to the
alleged staff of the Southern-Ijaw Rural Development Authority. The entire
process leading to the final disbursement of the SPL to the customers was collectively
carried out by a team of officers of the Defendant in which the Claimant did
not play any singular and bigger or most significant role than others that
brought about the alleged loss to the Defendant. The Claimant was not the only
member of staff of the officers of the Defendant who participated in the
exercise leading to the disbursement of the SPL to the alleged customers that
her appointment was terminated by the Defendant on grounds of causing the purported
significant loss to the Defendant.
On noticing that Mr. Ikpangi Eseimokumo Perekebina had used
ghost workers of the Southerm-Ijaw Rural Development Authority to obtain the SPL,
the Claimant immediately made a report via the Yenagoa Branch Manager of the Defendant
for appropriate action and the accounts of the alleged customers were put on
hold. The termination of her Contract of employment with the Defendant by the
Defendant was carried out contrary to agreed terms and conditions of the
employment. She was punished with suspension for one month without salaries by
the Defendant unjustly and she was further punished for the alleged SPL fraud
with termination of her employment after she had finished serving the one-month
term of suspension without salary.
The Claimant pleaded further that she was entitled to
salaries during the period of her suspension which the Defendant denied the
Claimant of wrongly. The SPL account opening exercise was collectively done by
a team of officers of the Defendant and all such members of staff who
participated in the said exercise leading to the alleged SPL fraud of
N4,988,000 were given single and lighter punishments by the Defendant. She was
not the officer of the Defendant saddled with the responsibility of approving the
final disbursement of the SPL to the alleged customers of the Defendant. When she
was invited to attend a Virtual meeting with the Disciplinary Committee of the Defendant
in Port Harcourt, she went with evidence of what happened but all such pieces
of evidence with which the Claimant brought to present to the Virtual
Disciplinary Committee to explain were confiscated before the commencement of
the virtual meeting thereby denying the Claimant the benefit of the doubt as to
her involvement in the alleged fraud.
The Claimant stated that she was not afforded any terminal
benefits after the termination of her employment on the 20th
November, 2021 even though the Claimant is entitled to such terminal benefits
under the employment. The Defendant has already recovered the defrauded SPL sum
of N4,988,000 from Mr. Ikpangi Eseimokumo Perekebina shortly after terminating
the employment of the Claimant and thus did not suffer any alleged significant
loss from the Claimant's neglect of any duty. The Defendant arrested the
Claimant and 7 other persons suspected of involving in the SPL fraud which was
also investigated by the police at the instance of the Defendant. The Defendant
hurriedly terminated the employment of the Claimant on her own investigation
without any reference to the police's investigation and concluded same to
punish the Claimant contrary to the terms of the contract of employment and
without waiting for the conclusion of the investigation. The Police's
investigation exonerated the Claimant from any wrongdoing, particularly any
connivance with Mr. Ikpangi Eseimokumo Perekebina for the alleged SPL fraud
contrary to the Defendant's unfounded report in respect thereof.
Even though other officers of the Defendant such as Amaka,
Chenere, Mrs. Ruth Ebiearide and Ezekiel were part of the team of officers that
were involved in the account opening of the customers that occasioned the alleged
SPL fraud of N4,988,000, the Yenagoa Branch Manager of the Defendant deliberately
refused to produce them for investigation by the police notwithstanding the
formal demand by the Police to have them produced for investigation. She
exercised her right to ask for review of the Defendant's decision to terminate
her employment under the employment and applied for review of the said decision
via letters dated 26-11-2021 and 14-12-2021 and received no response from the
Defendant. Following the lack of response from the Defendant, she approached
the law firm of A. S. Authur to make further appeal to the Defendant for review
of the termination, which termination the Defendant justified in her letter of reply.
Upon the termination of her employment by the Defendant; the
Claimant was offered employment by Globus Bank Limited as a Banking Officer but
was forced to resign because of the reasons for termination of her employment by
the Defendant when Globus Bank Limited required a recommendation from the Defendant.
Her reputation as a banker has been ruined by the Defendant's wrongful
termination of the employment, particularly the reasons adduced by the
Defendant in the said letter of termination. The reasons the Defendant adduced
on the letter of termination are not established against the Claimant by any
shred of evidence. She was punished double by the Defendant contrary to the conditions
of the employment. The Defendant is empowered by the conditions of the employment
to either suspend the Claimant or terminate her employment. The Defendant
cannot punish her with suspension, denial of salaries and termination at the
same time for an alleged offence under the employment.
DEFENCE
OF THE DEFENDANT
The Defendant stated further that a term of the suspension notice
of 15th October 2021 is that the suspension was to enable the
Claimant recover the lost funds but the Claimant failed to make the necessary
recoveries, at the end of the suspension period and the Defendant therefore
terminated her appointment with effect from the 20th of November
2021
The team of Defendant's officers (which included the
Claimant) had the primary responsibility of verifying and validating all
information and documentation provided by its customers including the said Mr
Ikpangi Eseimokumo Perekebina who is not a staff of the Defendant and does not
owe the Defendant any such obligation. The account opening exercise was however
not completed as the Claimant and the 3 other officers had failed, refused
and/or neglected to carry out their primary functions of ensuring that the
documentation presented to the Defendant were genuine. The Claimant and 3 other
staff failed to verify the letters of confirmation of employment and
introduction allegedly received from the Southern ljaw Rural Development
Authority from the Head of Personnel Management of the Local Government
Authority but they signed off on the documentation presented to the Defendant
as though they had indeed verified them. That from the investigation carried
out by the Defendant, the Claimant admitted that she noticed that the salary of
one of the alleged imposters and fraudulent loan beneficiaries (Udeme Sunday)
was paid from the account of the said Mr. Ikpangi Eseimokumo Perekebina a few
times before the disbursement of the loan rather than from the account of the
Southern ljaw Rural Development Authority.
Rather than notify the Defendant, the Claimant chose to
notify the said Mr. Ikpangi Eseimokumo Perekebina that the payment of salaries
from personal accounts was a red flag for the Defendant and no loans would be
disbursed to such customers if the monies were not paid from the Southern Ijaw
Local Government Account. It was the Claimant's prompting of the said Mr.
Ikpangi Eseimokumo Perekebina that informed his allegedly opening an account in
another bank in the name of Southern ljaw Local Government Area from which the salaries
of the alleged imposters were subsequently paid.
It is the duty of the Recovery Officers to confirm the
employers' commitment forms prior to disbursement of the loans after the
accounts have been opened but this duty of the recovery officer is a second
level check off, as it is the primary duty of the various account officers of
which the Claimant is one, was to verify the documents provided at the point of
account opening and that if the Claimant and the other account officers had
carried out their duties diligently, the accounts of the alleged imposters
would not have been opened in the first place. While the Claimant may not have
had any singular bigger or more significant role than the other staff in the
opening of the accounts and processing of the loans, none of the other staff
breached the Defendant's Policy on its processes by tipping off the said Mr.
Ikpangi Eseimokumo Perekebina on the irregular source of salary payments made
to one of the fraudulent loan beneficiaries - one Udeme Sunday prior to the
disbursement of the loan and its implication for the processing of the loan by
the Defendant. By tipping off the said Mr. lkpangi Eseimokumo Perekebina of the
implication of his payment of the alleged imposters salary from his personal
account, the Claimant revealed the Defendant's credit policy/operational
secrets which information was put in place to further safe guard the
Defendant's processes from infiltration by fraudsters so that even if the staff
had merely been negligent in their duties by failing to verify the employment information
provided to the Defendant, the source of the salary payment could have also
revealed fraudulent applications. This action of the Claimant constituted a
major offence under page 19 of the Defendant's Disciplinary procedures and sanctions
grid.
The Defendant stated further that based on the report of its
Investigation, it was only the Claimant that breached this particular Policy
when she notified the alleged fraudster Mr Ikpangi Eseimokumo Perekebina on how
to circumvent the Defendant's systems and processes which singular act enabled
the alleged fraudster succeed in his ploy to defraud the Defendant. The Claimant
only notified the Defendant that the salary of Udeme Sunday was paid from the
account of Mr Ikpangi Perekebina in July 2021 after the loan to Sunday Udeme
had been disbursed. That the Defendant acted in line with the agreed terms of
the contract of employment at all times by investigating the alleged fraud,
inviting the Claimant before the Disciplinary Committee to defend herself and
following its laid down disciplinary procedures leading up to the termination
of the appointment of the Claimant with reason and the Defendant shall prove
this fact at the trial of this matter.
Each of the officers who actively participated in the
opening of the alleged fraudulent accounts was punished in accordance with the
sanctions grid for their role in the scheme as identified by the Defendant
during its investigation. The Claimant's failure to alert the Defendant of the
payment of salaries from the personal account of Mr. Ikpangi Eseimokumo Perekebina
to Udeme Sunday's account number 7566642010 (one of the accounts which
succeeded in obtaining the loans) played a significant role in the success of
the fraud over and above any of the other staff and the said action also
revealed Claimant as an unfaithful and disloyal staff to the Defendant and its
business.
The Claimant is not entitled to any terminal benefits as
shown on page 5 clause F of the 2015 Disciplinary process and Sanctions grid
document. The Defendant suffered significant loss in the sum of N4,988,000.00
(Four Million Nine Hundred and Eighty-Eight Thousand Naira) only which it gave
the Claimant one month to recover in October 2021 during her suspension period
but which the Claimant did not recover. That even if the loss to the Defendant
was remedied much later the refund did not remedy the Claimant's betrayal of the
Defendant and its business processes of which the loss originally suffered was merely
a consequence.
On the 28th of July 2021, it apprehended 3 of the
suspected fraudulent loan beneficiaries at its Branch office in Yenagoa and
handed them over to the Police. The Defendant's petition to the Police was made
by its Regional Internal Audit Officer at the Police station. It was based on
the statements of the 3 suspects and the Defendant to the Police, that the
fraudster Mr Ikpangi Eseimokumo Perekebina was subsequently arrested. The
Defendant never instigated the Police to arrest the Claimant at any time
whatsoever and the arrest of the Claimant was not at the instance of the
Defendant but as a result of the allegations leveled against the Claimant by
the said Mr. Ikpangi Eseimokumo Perekebina who claimed that he planned the
scheme in connivance with the Claimant. The Defendant has no reason to refer to
the Police Investigation as the termination of the Claimants appointment was
not for fraud but for "dereliction of duty occasioning significant loss to
the Defendant", the facts of which negligence includes the Claimants
failure to notify the Defendant of her observations with respect to the payment
of salaries to one of the fraudulent loan customers from the personal account
of Mr. Ikpangi Eseimokumo Perekebina.
ISSUES
FOR DETERMINATION
Counsel for the Claimant nominated a sole issue for the
determination of this suit to wit:
Whether
the Claimant proved breach of the contract of employment between the Defendant
and the Claimant by the Defendant so as to be entitled to the reliefs sought?
Counsel for the Defendant nominated a sole issue for the
determination of this suit to wit:
Whether
the Claimant has successfully proved her case to be entitled to the reliefs
sought?
Issues nominated by the parties are the same though
differently worded, I will consolidate and adopt the two issues in determining
this suit.
LEGAL
SUBMISSION OF THE CLAIMANT
Learned counsel for the Claimant submitted that the Claimant
has proved and made out a case successfully before this Court for the wrongful
termination of her employment with the Defendant. That whoever desires any
court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist: cited See
section 131 (1) of the Evidence Act, 2011 (as amended). Also refers to Bulet
Int'l (Nig) Ltd v. Olaniyi (2018) All FWLR (Pt. 943) 529, paras. G-H and Kwali
v. Dobi (2010) AII FWLR (Pt. 506) 1883.
Submitted that the Defendant employed the Claimant with the
terms and conditions of the employment as particularly provided under exhibits
CW001, CW012A and CW013A. For instance, the procedure for termination and the
consequences thereof are equally stated in exhibit CW012A. It is the law that
the onus is on a party who alleges that the termination of his employment is
unlawful and to discharge this burden, the party must prove the following,
namely: he is an employee of the employer; the party must place before the
court the terms and conditions of his employment, the person that can appoint
and remove him from the employment, and the circumstances in which the
employment can be determined by the employer and breach of the terms. Cited
Oloruntoba-Oju & Ors v. Abdul-Raheed & Ors (2009) LPELR-2596. Counsel
submitted that exhibits CW001, CWO09A, CWO10A, CWO12A and CW013A tendered
through the Claimant as CW1 met the requirement of the law without more.
Submitted that contrary to the provisions contained in
exhibit CWO12A, the Defendant discriminately terminated the employment of the
Claimant in a transaction where three other members of staff were equally
indicted. Again, despite the provisions at paragraph F of exhibit CW012A that
'employees whose contract of employment is determined by resignation of the
staff or termination by the employer shall be entitled to receive terminal
benefits as provided in the Bank's personnel policy, the Claimant's employment was
terminated with the said terminal benefits. This is also supported by the
evidence of DW1 under cross-examination.
Another demonstration by the Claimant at the trial that the Defendant
wrongly terminated her employment against the provisions of exhibit CWO12A is
as shown in the evidence of DW1. The foregoing bundle of admissions and others
by DWI under cross examination were unambiguous admissions against the
statement of defence of the Defendant and the contents of exhibits CW003,
CW009A, CWO10A, CW012A and CWO13A.
The Claimant contended that the Claimant has discharged the
the burden of proof of wrongful termination of her employment by the Defendant
by minimal proof. That their contention finds support in Larme v. Data
Processing Maintenance & Services Ltd (2005) LPELR-1756 Per Tobi JSC stated
at Pp. 38-39, paras. E-A. The Claimant
went far beyond even the required minimal proof. The Claimant proved her case
as if there was any evidence worthy of any probative value in the side of the
Defendant. It is against this backdrop that the issue of dumping of documents
on the court contended by the Defendants is very difficult to situate in the
entirety of this case. It is further submitted that exhibits: CWO01, CWO02,
CW003, CWO04, CWO05, CWwO09A, CW010A, CW11A, CWO12A and CW013A were pleaded and
tendered through the Claimant as CW1. None of the exhibits were tendered from
the bar. It is documents that were tendered from the bar and not through a
witness that can be said to be dumped on the court when after they have
admitted, they are not spoken to by a witness. See A.P.G.A. v. Al-Makura &
Ors (2016) LPELR-47053.
The exhibits which were tendered though the Claimant as CWI
were spoken both during examination in chief and under cross examination. Given
that the exhibits were not tendered from the bar but through the Claimant as
CW1 in which the Defendant was given equal opportunity to cross examine the
Claimant on the said documents, exhibits CWO01, CW002, CW003, CW004, CW005,
CW009A, CWO10A, CW11A, CWO12A and CWO13A and other documents relied upon by the
Claimant were not dumped on the court, counsel cited the case of PDP v.
Alechenu & Ors (2019) LPELR-49199.
Counsel for the Claimant contended that the Claimant has
proven the terms of the employment between her and the Defendant by the
contents of exhibits: CW001 CW002, CW003, CW004, CW005, CW009A, CW010A, CW11A,
CWO12A and CW013A and the violation of same by the Defendant This is as
required by law in Olanlege v. Afro Continental (Nig) Ltd (1996) LPELR-2568 Per
Onu JSC stated at p. 26. paras E-F. Though the employment of the Claimant was
in the category of a master and servant relationship which was governed
specifically by exhibits: CW001, CW012A and CW013A, the Claimant's employment
can only be terminated as stated as such. Cited Longe v. FBN Plc (2010) LPELR
1793. Because the combine effects of exhibits: CW09A, CW10A, CW012A and CW013A
and the admissions of DW1 under cross examination show that the employment of
the Claimant was wrongly terminated, submitted that the Claimant is entitled to
the reliefs sought.
LEGAL
SUBMISSION OF THE DEFENDANT
Counsel for the Defendant balkanized and argued the issue
for the determination into three parts as per the reliefs sought by the
Claimant in her Complaint and the Statement of Claim. Learned counsel for the
Defendant submitted that the Claimant has failed to provide any shred of
evidence in any manner, shape or form to prove any of the above claims against
the Defendant. The Claimant alleges that "the Defendant did not follow the
laid down disciplinary requirements and procedure when the Defendant suspended,
denied salaries and terminated the contract of employment of the Claimant on
the 20th of November 2021", also that " the suspension,
denial of salaries and termination of the Claimant's employment in one breathe
without following the laid down disciplinary requirements and procedure
constitutes a breach of contract of employment and lastly that " the
Claimant is entitled to earn salaries during the period of suspension from duty
and terminal benefits under the employment after the termination of her
employment with the Defendant" However, the Claimant did not present
before this Court the specific terms of the contract of employment (Exhibit
CW001) which shows the proper procedure and processes which the Defendant is
expected to follow in suspending the Claimant or terminating her appointment or
which the Claimant alleges that the Defendant breached in each of these claims.
Although, the Claimant tendered her letter of appointment -Exhibit CW0001 in
evidence as well as the Defendant's Disciplinary Procedure and Sanctions Grid
and Human Resource Manual as Exhibits CW012 and CW0013 respectively, the
Claimant did not point the Court to any portions of the Exhibits relevant to
Claimants case and which portions of the said Exhibits CW001 CW0012 and CW0013
show the disciplinary requirements and procedure which the Defendant ought to
have followed but breached.
Counsel contended that since the Claimant's grouse is mainly
that the Defendant did not follow the laid down procedure, the onus rests on
the Claimant to point the Court to the proper procedure which the Defendant
ought to have followed, but Claimant completely failed to do so. Indeed, the
Claimant did not show any provision in the contract of employment which the
Defendant ought to have followed but failed to adhere to, because there was
none and the Defendant did as a matter of fact follow its laid down procedures
for disciplining its staff in this case. By failing to show the Court what the
proper procedure for the discipline or termination of the Contract is, the
Claimant leaves the Court with only one side of the story and without details
of her own alternative story or opposing facts that the Court may compare with
the Defendant's alleged wrongful actions to ascertain the Defendant's breach,
the Claimant completely failed, refused and/or neglected to lead any evidence
in this regard and submitted that even the mere tendering of Exhibits CW001,
CW0012 or CW0013 without more cannot avail the Claimant in this regard as the
law is trite that the witness is required to demonstrate his document and not
simply dump them on the Court. Claimant by alleging that a wrong procedure or
requirement was applied to her by the Defendant, has the burden to lead the
Court through her exhibits to show the proper procedure and processes which the
Defendant ought to have followed and it is not enough for the Claimant to
simply leave the documents tendered for the court to forage through since the
Court cannot simply embark on its own independent research with the result of
its own private investigation. Where such a duty is left for the Court, it has
been held that the exhibits become worthless documents to which the Court will
not attach any probative value- cited Lambert vs. Nigerian Navy (2O06) 7 NWLR
(pt. 980) 514 and Section 83 (1) (a) () Evidence Act 2011.
Even if the Court were to take on the onerous duty of
searching through the Exhibits before it, it would only come to the conclusion
that there were no procedures or processes which support the Claimant's case
within the terms of the contract of employment between the Claimant and the
Defendant. In spite of Claimant's failing to prove the basis of her claims
against the Defendant, the Defendant in its defence admitted that the Claimant
was indeed in its employ from November 2012 to November 2021 when her
appointment was terminated for gross misconduct following the Defendant's
internal disciplinary procedures and processes in support of this defence, the
Defendant provided evidence to show that it followed its internal process in
disciplining the Claimant which disciplinary procedure eventually culminated in
the termination of the Claimant’s appointment. The Defendant in proof of its defence
pointed the Court to relevant provisions of its internal policy documents and
led evidence via DW1 in proof of its defence. DW1 stated in his testimony
(paragraph 8) that upon receipt of the report alleging a fraud on the
Defendant's loan processes, and in line with its Disciplinary internal
processes, the Defendant engaged with the Claimant and other staff involved in
the alleged processing of the fraudulent Salary Plus Loans (SPL) and obtained
their hand written responses to queries from the Internal Control Department of
the Defendant These preliminary handwritten responses to the query from 3 other
staff and the Claimant were tendered in evidence as Exhibits DW 0010A, B, C and
DW0011. Furthermore, DW1 in paragraph 10 of his testimony stated that following
the initial hand written responses, further query was issued via email to the
Claimant on the 27th of August 2021 which Claimant responded to on
the same date which document is in evidence as Exhibit DW003. Thereafter on
conclusion of Defendant's investigation into the alleged fraud claims, the
Defendant issued its report via an email dated 13 of September 2023, which is
in evidence as DW008 and also invited the Claimant to a Disciplinary Committee
(DC) meeting on the 29th of September 2021.
Following the Claimant's attendance at the DC on the 29 of
September 2021, the DC made its recommendations to the Defendants management
which recommendation was accepted and implemented on the 16th of
October 2021 when the Claimant was placed on suspension without pay for one
month to enable Claimant recover the monies lost. An extract of the outcome of
the Disciplinary Committees finding/recommendation/decision is in evidence as Exhibit
DW002. It was when the Claimant failed to adhere with the terms of the suspension
notice that her appointment was subsequently terminated by the Defendant.
The Defendant has argued on its part that it did follow its
own laid down procedures and processes as contained in its Disciplinary
Processes and Sanctions Grid (Exhibit DWO09) as well as its Human Resources
Manual (Exhibit DW001) in its dismissal of the Claimant and that the dismissal
was justified as shown by the evidence presented before this Court. That it is
trite that dismissal from employment is separate from termination in employment
contracts as dismissal is now recognised to refer to the special cases of
discipline for repudiation of the contract of employment by the employee.
COURT’S
DECISION
I have carefully gone through the pleadings, evidence and
legal submissions of the parties in respect of their respective case, to start
with, the Claimant claimed to be the employee of the Defendant and her
employment with the Defendant was confirmed on the 7th of August
2013. The Claimant tendered Exhibits CW001 and CW002 in establishing her
relationship with the Defendant. The Defendant in paragraph 2 of its Statement
of Defence admitted its employment relationship with the Claimant. Thus,
admitted fact goes to no issue. In legal proceedings, a party's admission
serves as the most compelling evidence, relieving the opposing party from the
burden of proof regarding the admitted fact. In civil cases, such admissions
are considered evidence against the admitting party unless valid explanations
are provided to the court. Once a party acknowledges a fact in their legal
pleadings, they are bound by this admission and cannot later dispute it.
Consequently, a court is permitted to render a judgment based on these relevant
admissions: see the cases of SALAWU V. YUSUF (2007) 12 NWLR (PT. 1049)
707, OSENI V. DAWODU (1994) 4 NWLR (PT. 339) 390 and OGUANUHU V.
CHIEGBOKA (2013) 6 NWLR (PT. 1351) 588.
The claims of the Claimant as they can be gleaned from the
reliefs and the Claimant’s pleadings before this Court revolve around three
facets, to wit, the Defendant did not follow the laid down disciplinary
requirements and procedure when the Defendant suspended, denied salaries and
terminated the contract of employment of the Claimant on the 20th of
November 2021, the suspension, denial of salaries and termination of the
Claimant's employment in one breathe without following the laid down
disciplinary requirements and procedure constitutes a breach of contract of
employment and lastly that the Claimant is entitled to earn salaries during the
period of suspension from duty and terminal benefits under the employment after
the termination of her employment with the Defendant.
Counsel for the Defendant argued that the Claimant did not
present before this Court the specific terms of the contract of employment
(Exhibit CW001) which shows the proper procedure and processes which the
Defendant is expected to follow in suspending the Claimant or terminating her
appointment or which the Claimant alleges that the Defendant breached in each
of these claims. Although, the Claimant tendered her letter of appointment
-Exhibit CW0001 in evidence as well as the Defendant's Disciplinary Procedure
and Sanctions Grid and Human Resource Manual as Exhibits CW012 and CW0013
respectively, the Claimant did not point to the Court to any portions of the
Exhibits relevant to Claimants case and which portions of the said Exhibits
CW001, CW0012 and CW0013 show the disciplinary requirements and procedure which
the Defendant ought to have followed but breached.
The Supreme Court in the case of IBAMA V. S.P.D.C. (NIG.)
LTD. (2005) 17 NWLR (Pt. 954) 364 held that:
it
is the law that when an employee complains that his employment has been
wrongfully terminated, he has the onus of placing before the court the terms of
the contract of employment before proceeding to prove the manner the said terms
were breached by the employer. It is not the duty of the employer who is a
defendant to an action brought by the employee to prove any such breach as laid
down by this court in many cases particularly in Amodu v. Amode (1990) 5 NWLR
(Pt. 150) 356 at 370 where Agbaje, JSC said -
It appears clear to me that since it is the plaintiff's case
that his dismissal by the defendants is not in accordance with the terms and
conditions of the contract of service between them it is for the plaintiff to
plead and prove the conditions of service regulating the contract of service in
question.
In this instant suit, the Claimant pleaded Exhibits CW001,
CW013A and CW012A, letter of appointment, Human Resource Policy Manual and FCMB
Disciplinary Process and Sanction respectively. I have cautiously gone through
the Statement of Fact filed on the 24th of October 2022; I suppose
the Claimant pleaded the manner in Exhibit CW013A and CW012A were allegedly
breached by the Defendant, though the Court must determine the correctness or
propriety of the assertion of the Claimant. For ease of reference, I hereunder
reproduce paragraphs 28, 36, 37 and 38 of the Statement of Fact.
28 The
Claimant pleads that the Defendant hurriedly terminated the employment of the
Claimant on her own investigation without any reference to the police's
investigation and concluded same to punish the Claimant contrary to the terms
of the contract of employment and …
36 The
Claimant pleads that she was punished double by the Defendant contrary to the
conditions of the employment.
37 The
Claimant pleads that the Defendant is empowered by the conditions of the
employment to either suspend the Claimant or terminate her employment.
38 The
Claimant pleads that the Defendant cannot punish her with suspension, denial of
salaries and termination at the same time for an alleged offence under the
employment.
Given the foregoing, it is my view that the Claimant has
sufficiently demonstrated how the Defendant allegedly breached its condition of
service. I so hold.
The Claimant pleaded that she received a notice from the
Defendant on the 16th of October 2021 asking her to proceed on a
one-month suspension from duty without pay on allegations of failure to confirm
the employment status of some persons who were granted loans by the bank and
negligence of duty causing significant loss to the Defendant. She proceeded on
the one-month suspension without pay and returned on the 20th of
November, 2021 to receive another letter terminating her appointment with the
Defendant on the same date alleging the same reasons as the suspension. The
Claimant tendered Exhibits CW009 and CW010.
The event that led to the suspension and subsequent
termination of the employment of the Claimant is that one Mr. Ikpangi
Eseimokumo Perekebina, the client of the Defendant, introduced the SPL to other
persons who were alleged to be staff of the Southern-ljaw Rural Development
Authority, Bayelsa State and caused to be processed relevant account opening
documents for the grant of the loan facility through the assistance of a team
of officers of the Defendant. The Claimant carried out the processing of the
loan facility accounts of the alleged members of staff of the Southern-ljaw
Rural Development Authority, Bayelsa State introduced to the Defendant through
Mr. Ikpangi Eseimokumo Perekebina in the company of Onyegbule Ndubuisi Johnson
and Ruth Oputa as account officers of the Defendant for the said exercise. Upon
completion of the account opening exercise, some of the alleged staff of the
Southern-ljaw Rural Development Authority, Bayelsa State were granted the sum
of N4,988,000 as SPL facility by the Defendant.
The Defendant, in responding to the claim of the Claimant,
stated that on the 23rd of July 2021, the Internal Control & Compliance
Department of the Defendant received an electronic mail from the officer
in charge of the Defendant's Rivers and Bayelsa States offices, requesting an
investigation into a reported case of fraud in the disbursement of Salary Plus
Loan at its Yenagoa Nikton Road Junction Branch. On the 2nd
of August 2021, the Defendant received another report from one of its customers
Basuo Raymond Philip alleging that the Claimant herein and two other
staff of the Yenagoa Nikton Junction Branch demanded a 30% kickback on a
yet to be disbursed loan of N1,900,000.00 only. Upon receipt of the
reports and in line with the Defendant's internal processes, the Claimant
and the 3 other staff indicted in the report were engaged by an officer in the
Defendant's Internal Control Department on the roles each of them played in the
alleged fraud.
Based on the responses from the Claimant and the 3 other
staff, the Defendant petitioned the Police on the alleged fraud committed
against it by the alleged fraudster one Mr Ikpangi Eseimokumo Perekebina and
his accomplices. The Police arrested the said Mr. Ikpangi Eseimokumo Perekebina
who made statements to the Police indicting the Claimant. Based on the
statements made by Mr. Ikpangi Eseimokumo Perekebina to the Police, the
Defendant's Internal Control officer further engaged the Claimant in August 27,
2021. The Claimant responded to further the written queries raised by the
Internal Control Officer in respect of the fraud allegations via her email of
27 August 2021. Upon receipt of the Claimant's response, Defendant through its
Group Internal Audit (GIA) and Internal Control Department commenced
investigation into the allegations and upon conclusion of the investigation,
the GIA Department of the Defendant produced its report dated 13th
September 2021 indicting the Claimant and 3 other staff of the Defendant at its
Branch office at Nikton Junction Yenagoa for various acts of misconduct,
whereupon the Claimant and the other indicted staff were invited to attend a
Disciplinary Committee to answer to the allegations and have an opportunity to
state their case.
A notice dated 28th September 2021 was sent via
email to the Claimant and 3 other staff to attend the Defendant's Regional
Disciplinary Committee in Port Harcourt on the 29th of September
2021. The Claimant as well as the three other staff attended the Disciplinary
Committee meeting as scheduled on the 29th of September 2021 and
presented their cases to the Disciplinary Committee whereupon the Disciplinary
Committee upon consideration of the cases made out by the Claimant and the
other staff, made its findings and recommendation to the Defendant's
Management. That it was based on the Disciplinary Committees' review of the
cases made out by the Claimant and 3 other staff, that the Defendant placed the
Claimant and the other staff on suspension without pay for one month for the various
infractions of its processes as established during the investigation but the
Claimant's suspension was also to enable her to recover the monies lost during
the period of the suspension, which commenced on the 16th of October
2021. The Defendant tendered Exhibits DW002, DW003 and DW011.
Given the facts and evidence highlighted above, it can be
deduced from the foregoing that Mr Ikpangi Eseimokumo Perekebina a client of
the Defendant introduced the Defendant’s loan facility, known as Salary Plus
Loan, to some of his friends who were allegedly staff of the Southern-ljaw
Rural Development Authority, Bayelsa State. As part of the condition for the
award of this loan facility, the applicants or beneficiaries must have their
salary accounts domiciled with the Defendant and the Defendant must have
received the salary of the applicants/beneficiaries in the accounts domiciled
with the Defendant to ensure or ascertain that the applicants/beneficiaries are
the employees of the employer the applicants/beneficiaries claimed to be.
Now, the Claimant and her team opened the accounts for the
applicants Mr. Ikpangi Eseimokumo Perekebina introduced to the Defendant. After
that, the Defendant pleaded and led evidence to state that the Claimant
admitted that she noticed that the salary of one of the alleged imposters and
fraudulent loan beneficiaries (Udeme Sunday) was paid from the account of the
said Mr. Ikpangi Eseimokumo Perekebina a few times before the disbursement of
the loan rather than from the account of the Southern ljaw Rural Development
Authority. Rather than notify the Defendant, the Claimant chose to notify the
said Mr. Ikpangi Eseimokumo Perekebina that the payment of salaries from
personal accounts was a red flag for the Defendant and no loans would be disbursed
to such customers if the monies were not paid from the Southern Ijaw Local
Government Account. It was the Claimant's prompting of the said Mr. Ikpangi
Eseimokumo Perekebina that informed his allegedly opening an account in another
bank in the name of Southern ljaw Local Government Area from which the salaries
of the alleged imposters were subsequently paid. Exhibits DW003, DW006 and DW004
are very important here.
One of the beneficiaries of the Defendant’s Salary Plus Loan,
named, Udeme Sunday, opened his classic current salary account with the
Defendant on the 23rd of February, 2021. See Exhibit DW006. On the 4th
of March 2021, purported salaries of December 2020, January 2021 and February
2021 of Udeme Sunday entered the salary account of Udeme Sunday domiciled with
the Defendant from Mr. Ikpangi Eseimokumo Perekebina who brought Udeme Sunday
to the Defendant or introduced the Defendant’s Salary Plus Loan to Udeme Sunday,
see Exhibits DW004 and DW004.
The Claimant admitted in paragraphs 3 and 4 of Exhibit DW003
that the Claimant was aware that the purported salaries of December 2020,
January 2021 and February 2021 of Udeme Sunday were paid by Mr. Ikpangi
Eseimokumo Perekebina from his account instead of the Southern-ljaw Rural
Development Authority which is the purported employer of Udeme Sunday, and
informed Mr. Ikpangi Eseimokumo Perekebina and Udeme Sunday about the source of
the salary of Udeme Sunday.
The Claimant found it appropriate to inform Mr. Ikpangi
Eseimokumo Perekebina and Udeme Sunday about the source of the salary of Udeme
Sunday but kept the secret away from her employer, the Claimant is obligated to
inform or bring to the notice of her employer any information the Claimant came
across in the performance of her duty to the Defendant. If the Claimant had not
informed Mr. Ikpangi Eseimokumo Perekebina and Udeme Sunday about the source of
the salary of Udeme Sunday, Mr. Ikpangi Eseimokumo Perekebina would not have
opened another account in the name of Southern-ljaw Rural Development Authority
to swindle the Defendant to grant the loan application of those applicants in
which Mr Ikpangi Eseimokumo Perekebina brought for the Defendant.
The fiduciary duty that the Claimant owes to the Defendant
is inherently implied by the nature of the employment relationship. Sam Erugo,
the author of Introduction to Nigerian Labour Law, 2nd Edition
published in 2019 on page 124 noted that employees should disclose relevant and
necessary information to their employers. This obligation pertains to the
provision of information that affects the employer's business operations and
appears to derive from the fiduciary relationship, rather than from contractual
agreements. Employees are expected to inform management of any knowledge they
possess regarding dishonesty among colleagues, particularly if they occupy
positions of significant authority.
The Claimant seized the fact that the purported salaries of
December 2020, January 2021 and February 2021 of Udeme Sunday were paid by Mr.
Ikpangi Eseimokumo Perekebina from his account instead of the Southern-ljaw
Rural Development Authority which is the purported employer of Udeme Sunday,
the Claimant instead of disclosing this information to the Defendant so that
the Defendant could stop the Salary Plus Loan process but the Claimant failed
in her duty to be fidelitous and loyal to the Defendant but compromised her
fidelity and loyalty with Mr. Ikpangi Eseimokumo Perekebina to facilitate the
approval of the Salary Plus Loan in the sum of N4,988,000 by the Defendant. In
Exhibits DW008 and CW011A, the report noted that:
We
noted that the account officer who has been in the system for 12 years notice
that the suspect paid salaries from his personal account, yet she did not raise
any suspicion, but rather advised the suspect to stop salaries from his
personal account. We are inclined to belief that this action by the AO was very
suspicious by allowing the bank to disburse the loans, despite the observed red
flag.
In the case of ABOMELI V. N.R.C. (1995) 1 NWLR (Pt.
372) 451 the Court of Appeal held that:
It
is an undeniable fact that the respondent lost some money attributable to some
unacceptable and untoward behaviour of the appellant in his duties to his
employer. He owed it as duty to his employer to protect its property or use
same in such a way that no preventable loss would occur. Of course where he is
tardy or there is lack of diligence in his approach to his duty or he is
negligent and the master by the same suffers loss, he is guilty of misconduct to
which appropriate disciplinary action can be taken.
It
is pertinent to state here that the doctrine of good faith in master and
servant relationship is not based on dishonesty but on absolute loyalty. This
connotes a concept that in the course of the service being rendered by the
servant he must apply utmost diligence in his application to duty, and manifest
work ethics that would put him in good stead in the eyes of the employer. Thus
in Maja v. Stucco (1968) NMLR. 372 it was
held that a master is entitled to dismiss a servant whose conduct was simply
incompatible with the faithful discharge of his duty to his master. Dishonest
practices or criminal activities or acts and behaviour that demonstrably portray
an employee as an unreliable person are very strong reasons for an employer to
dismiss an employee. The profuse nature of the affidavits of the appellant
tends to cast the respondent in a monster role thereby ignoring essentially
that the true issue is that the respondent lost confidence in him and is not
ready to have him in his employment. This attitude on the part of the
respondent is based on what it conceived has been the disquieting dishonest
practices of the appellant.
It is important to note that the Claimant did not allege the
denial of a fair hearing, neither did the Claimant impeach the transparency of
the investigation of the Disciplinary Committee of the Defendant, thus, there
is no nicety in going to the proceeding of the Disciplinary Committee of the
Defendant, the Claimant complained about the sanction or decision of the
Defendant on suspension without pay, termination of employment and denial of
terminal benefit. Even, if the Claimant alleged denial of fair hearing,
evidence abounds on the process that led to the decision of the disciplinary
committee of the Defendant. The basis of the decision of the Defendant to
suspend and subsequently terminate the employment of the Claimant is Exhibit
DW003 where the Claimant admitted to having informed Mr. Ikpangi Eseimokumo
Perekebina and Udeme Sunday about the source of the salary of Udeme Sunday. When
an employer accuses an employee of misconduct by way of
a query and allows the employee to answer the query,
and the employee answers the query before the employer
decides on the employment of the employee, that satisfies the requirements
of a fair hearing because he answered the respondent’s
queries before he was dismissed from his employment: see the case of IMONIKHE
V. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624. The Supreme Court per
RHODES-VIVOUR, JSC at page 648 paras E-F held that:
Audi
alteram partem is a maxim denoting basic fairness. It is a canon of natural
justice that has its roots in the Old Testament. The Good Lord heard Adam
before he passed sentence. It simply means hear the other side. Accusing an
employee of misconduct, etc by way of a query and allowing the employee to
answer the query, and the employee answers it before a decision is taken
satisfies the requirements of fair hearing or natural justice. The
appellant was given a fair hearing since he answered the queries before he was
dismissed.
In the case of ARINZE V. FBN LTD (2004) 12 NWLR
(Pt.888) 663, the Supreme Court held:
It
is not necessary, nor is it a requirement under section 33 of the 1979
Constitution, that before an employer summarily dismisses his employee from his
services under common law, the employee must be tried before a court of law,
where the accusation against the employee is of gross misconduct, involving dishonest
(sic) bordering on criminality… to satisfy the rule of natural justice and fair
hearing, a person likely to be affected directly by disciplinary proceeding
must be given adequate notice of the allegation against him to afford him
opportunity for representation in his own defence. 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
accusation against him... The views of Oputa and Coker JJSC (supra) which completely support and
overlap the decision in Yusuf v. UBN (supra) is to the effect that in cases of
misconduct bordering on criminality, all that is required of an employer before
summarily dismissing an employee, is to give him fair hearing by confronting
him with the accusation made against him and requiring him to defend himself.”
See Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25 at 56 - 57 and 59”per
Onu JSC.
Again, the Claimant pleaded and led evidence to state that
Defendant hurriedly terminated the employment of the Claimant on its own
investigation without any reference to the police's investigation and concluded
the same to punish the Claimant contrary to the terms of the contract of
employment and without waiting for the conclusion of the investigation.
The report of the Police investigation is Exhibit CW003
where the police investigated a case of conspiracy, forgery impersonation and
fraud against 8 suspects which included the Claimant. Exhibit CW003 exculpated
the Claimant of the case of conspiracy, forgery impersonation and fraud.
However, Exhibit CW010A terminated the appointment of the Claimant on the
ground of gross misconduct. The Defendant does not need the report of the
police before proceeding to sanction the Claimant for gross misconduct, it is
the prerogative power of the Defendant to do such. In the case of ARINZE V.
FBN LTD (2004) 12 NWLR (Pt.888) 663, the Supreme Court held:
It
is not necessary, nor is it a requirement under section 33 of the 1979 Constitution,
that before an employer summarily dismisses his employee from his services
under common law, the employee must be tried before a court of law, where the
accusation against the employee is of gross misconduct, involving dishonest
(sic) bordering on criminality... to satisfy the rule of natural justice and
fair hearing, a person likely to be affected directly by disciplinary
proceeding must be given adequate notice of the allegation against him to
afford him opportunity for representation in his own defence. 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 accusation
against him... The views of Oputa and CokerJJSC (supra) which completely
support and overlap the decision in Yusuf v. UBN (supra) is to
the effect that in cases of misconduct bordering on criminality, all that is required
of an employer before summarily dismissing an employee, is to give him fair
hearing by confronting him with the accusation made against him and requiring
him to defend himself.
As I earlier noted, the fulcrum of the decision of the
Defendant to terminate the appointment of the Claimant with Defendant is
Exhibit DW003 where the Claimant admitted to having informed Mr Ikpangi
Eseimokumo Perekebina and Udeme Sunday about the source of the salary of Udeme
Sunday. Thus, the failure of the Defendant to wait for the report in Exhibit
CW003 cannot invalidate the decision of the Defendant on the fate of the employment
of the Claimant with the Defendant. I so hold.
The contestation of the Claimant is that the Defendant acted
contrary to the condition of service of the Defendant by suspending her for a
month without pay and thereafter terminating her appointment with the
Defendant. Page 3 paragraph D of Exhibit DW009 and page 26 of Exhibit DW001
provide for the sanctions for erring staff of the Defendant. In Exhibit DW001
and Page 4 of Exhibit DW009, suspension can be issued where staff is suspected
of serious misconduct and his/her presence in the workplace is considered
undesirable or may impede the flow of intervention. The staff is then placed on
suspension until investigations have been concluded. Again, paragraph F of
Exhibit DW009 provides that all suspensions shall be on half-payment unless
otherwise provided in the suspension letter.
In this instant case, the Defendant stated that the Claimant
as well as the three other staff attended the Disciplinary Committee meeting as
scheduled on the 29th of September 2021 and presented their cases to
the Disciplinary Committee whereupon the Disciplinary Committee upon
consideration of the cases made out by the Claimant and the other staff, made
its findings and recommendation to the Defendant's Management. It was based on
the Disciplinary Committees' review of the cases made out by the Claimant and 3
other staff, that the Defendant placed the Claimant and the other staff on
suspension without pay for a period of one month for the various infractions of
its processes as established during the investigation but the Claimant's
suspension was also to enable her to recover the monies lost during the period
of the suspension, which commenced on the 16th of October 2021.
From the gamut of evidence before this Court, the suspension
of the Claimant was not subject to pending investigation by the Defendant, as
at the time the Claimant was suspended, the Defendant’s disciplinary committee
had concluded its investigation and recommended the suspension of the Claimant
for recovery of the money. This is evident in Exhibit CW009. The suspension of
the Claimant from the employment of the Defendant was not incongruous to Page 3
paragraph D of Exhibit DW009 and page 26 of Exhibit DW001. The Defendant, by Exhibits
DW009 and DW001, has the power to suspend the Claimant where the Claimant is
suspected of serious misconduct; and her presence in the workplace is
considered undesirable and the Claimant was directed to recover the money from
the fraudsters. Exhibit DW009 also gives a caveat that suspension can be
without pay if it is stated in the suspension letter.
It is therefore the finding of this Court that the
suspension of the Claimant and subsequent termination of the Claimant from the
employment of the Defendant are not contrary to the provision of Exhibits DW009
and DW001. I so hold.
Finally, on the issue of terminal benefits, the Claimant
asserted that she was not afforded any terminal benefits after the termination
of her employment on the 20th of November 2021 even though the
Claimant is entitled to such terminal benefits under the employment. However,
the Defendant stated that the Claimant is not entitled to any terminal benefits
as shown on page 5 clause F of the 2015 Disciplinary Process and Sanctions grid
document.
The Defendant by its pleading and evidence gave the
termination of the employment of the Claimant dismissal status. While dismissal
is not synonymous with termination of employment. Termination of employment is
less in degree compared to dismissal. In F.B.N. PLC V. MMEKA (2015) 6
NWLR (Pt. 1456) 507 where the Court of Appeal held that:
The
term ‘termination of employment denotes the complete or absolute severance of
an employer-employee relationship. Contrary wise, the term ‘dismissal’ denotes
to release or discharge a person from employment. See Black’s Law Dictionary
9th Edition 2009 at 1609 and 537, respectively. In both cases, 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,
in 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, in that either party thereto may exercise it at will.
Conversely, dismissal of an employee, very often than not, results in a loss of
terminal benefits. What’s more, it equally carries an unpleasant ‘opprobrium’
to the unfortunate employee.
In this case, the employment of the Claimant with the
Defendant was terminated vide Exhibit CW010A. Paragraph F of Exhibit DW009
provides that the employees, whose contract of employment is terminated by the resignation
of the staff or termination by the employer, shall be entitled to receive
terminal benefits as provided in the Bank’s Personal Policy. While staff who is
dismissed from the service of the Defendant shall forfeit all accrued benefit.
Where the words used in
a document are clear and unambiguous, the court ought to
give them their plain, ordinary, and natural meaning: see the case of YANKEY
V. AUSTIN (2021) 1 NWLR (PT. 1757) 227. Flow from the foregoing, the
Claimant’s employment with the Defendant was terminated, therefore, the
Claimant is entitled to her terminal benefit. I so hold.
On the whole, the Claimant has succeeded in proving her
claim of terminal benefit, and failed to prove other claims and are accordingly
dismissed for lacking in merit. For the avoidance of the doubt, I hereby
declare as contained in the reliefs sought by Claimant that:
1. A
DECLARATION that the Claimant is entitled to earn terminal benefits under the
employment after the termination of her employment with the Defendant.
2.
AN ORDER compelling the Defendant to forthwith
pay all terminal benefits payable to the Claimant as prescribed in the
Defendant’s Personnel Policy.
3.
An Order awarding Fifteen percent (15%) Post
Judgment interest in favour of the Claimant against the Defendant until the
judgment sum is fully complied with.
4.
All other claims are dismissed.
5. All
terms of this Judgment are to be complied with within 30 days from today
without prejudice to the right of Appeal by Parties.
Judgment is entered accordingly.
HON.
JUSTICE BASHAR A. ALKALI
PRESIDING
JUDGE
YENEGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA