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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 23rd JANUARY, 2025                             SUIT NO: NICN/LA/630/2019

 

BETWEEN

 

MR. JOHN OSAJELE                                                    CLAIMANT   

                             

AND

 

ZENITH BANK PLC                                                        DEFENDANT

 

REPRESENTATION:

K.G Kamar with Temitayo Kareem for the Claimant

M. Sowunmi with O. Fagbemi and A. Abor for the Defendant

JUDGMENT

By a general form of complaint filed on the 31st of December, 2019 but amended on 12th July, 2023, the claimant claimed the following reliefs against the defendant:

 

1.     A declaration that the claimant was wrongfully dismissed from his employment by the defendant.

 

2.     A declaration that the Claimant as former employee of Zenith Bank Plc is entitled to the outstanding salaries and other entitlements due to the Claimant.

 

3.     An Order that the Defendant pay to the Claimant the sum of N47,880,354.24 (Forty-Seven Million, Eight Hundred and Eighty Thousand, Three Hundred and Fifty-Four Naira, Twenty-Four Kobo) being the outstanding salaries owed to the claimant for the periods wherein the claimant was suspended.

 

4.     An Order that the Defendant pay to the Claimant the sum of N10,500,000 (Ten Million, Five Hundred Thousand Naira only) being the outstanding Housing Allowance owed to the claimant for the periods wherein the claimant was suspended.

 

5.     An Order that the Defendant pay to the Claimant the sum of N9,000,000 (Nine Million Naira only) being the outstanding Profit Bonus owed to the claimant for the periods wherein the claimant was suspended.

 

6.     An Order that the Defendant pay to the Claimant the sum of N1,500,000 (One Million Five Hundred Thousand Naira only) being the outstanding 13th Month salary owed to the claimant for the periods wherein the claimant was suspended.

 

7.     An Order that the Defendant issue the Share Certificate of the Claimant's 281,000 units of Zenith Bank shares purchased by the Claimant.

 

8.     An Order that the Defendant pay all accrued dividends since year 2018 till date when the Defendant stopped the payment of the Claimant's dividends therefrom.

 

9.     An Order that the Defendant pay the interests accrued on the above stated amount from 3rd May 2016 until the final liquidation of the sum at the Central Bank of Nigeria lending interest rate on the day judgment is entered, and 10% afterwards till final liquidation of the Judgment sum.

 

10.           General damages in the sum of Nl,000,000,000 (1Billion Naira) against the defendant for the mental and psychological torture, trauma, embarrassment and dishonor visited upon the claimant due to the wrongful dismissal of the Claimant by the defendant.

 

11.           An Order that the Defendant pay the sum of N1,000,000.00 (One Million Naira) as the cost of this action.

 

Accompanying the amended complaint is the claimant’s written statement on oath, list of witnesses and documents to be relied upon on trial dated and filed 31st December, 2019.

 

In reaction, the defendant entered formal appearance and then filed a consequential amended statement of defence, witnesses written statement on oath and list of documents to be relied upon at trial dated and filed 25th July, 2023.

 

The summary of the facts pleaded by the claimant is that the Claimant was confirmed as a permanent staff of the defendant via a Confirmation of Employment letter dated 14th August, 1996 and rose to the rank of a Senior Manager who until his purported dismissal was the Branch Manager of the Gbagada branch of the defendant company and that since the confirmation of his appointment with the Defendant, the Claimant has served in several departments and positions in accordance with the ranking system within the Defendant Company. That from the time the Claimant resumed duties with the Defendant, he has worked hard and diligently in the discharge of the duties assigned to him by the Defendant, conducting himself responsibly and in a disciplined manner, such that he was never issued any query nor visited any disciplinary measure whatsoever in the course of his employment or relating to his work.

 

That a customer of the defendant in the name "Christ Embassy Loveworldsat Telecom Integrated Services Limited" with several accounts domiciled at both the Gbagada Branch and Head Office in the defendant bank applied for four (4) loans from the Defendant Bank and was granted 4 (four) loan facilities from the Defendant; that the customer defaulted and failed to liquidate the full indebtedness to the defendant at the due date and consequent to the customer's default to liquidate the full amount of loan facilities, he was summoned to the Head office, being the Staff who introduced the said customer to the Bank as part of his core duties to get corporate customers to open and maintain accounts with the defendant bank, questioning the state of the non-repayment of the loan/facilities granted by the Bank to this Customer. That as a result of the default of the customer in respect of the loan facilities which were all duly approved by the approval channel of the bank at the defendant head office, the Claimant was suspended for One Month on 3rd May, 2016 via Internal Memo from the defendant to enable the Claimant recover the outstanding indebtedness of the customer to the Defendant Bank.

 

That the said Suspension was extended for a further month, two months intervals, three months intervals and subsequently 6 months intervals to enable the Claimant recover the said Loan and that while on suspension, he kept working to recover the loan granted to  the customer as mandated by the Defendant and also was able to ensure the customer made repayments of huge and substantial parts of the loan through the sale of the said properties purchased by the Customer from the Loan granted; that due to the efforts of the Claimant, one of the Directors of the said customer, Reverend Ken Oyakhilome gave an undertaking and assurance for the payment of the loans in his letter dated April 22nd,2016; that while he was suspended for the sole aim of helping in the recovery of the loan facilities, the Defendant refused and did not pay his salaries and allowances. That the Defendant made a Petition to the Nigeria Police, State Force Headquarters, Alagbon, Ikoyi, Lagos against him and another during which he was arrested and detained and was thereafter taken to the Force Headquarters Abuja wherein the matter was investigated by the Police and the Claimant was subsequently released by the Police.

 

That whilst still on the continuous extended suspension, the Defendant filed another Petition at the Economic and Financial Crimes Commission (EFCC) against him and the Customer, alleging conspiracy to defraud the Bank, consequently, the Claimant was arrested and detained by officials of the EFCC and was in custody for a number of days before he was granted bail upon the Application of one Mike Osime who stood as a surety to always provide and ensure his presence whenever he was called upon; that he has since been reporting to the Lagos office of the EFCC for interrogations, and at other times just to sign a register or make an appearance at the behest of the EFCC Officials. That he has suffered and is still suffering the embarrassment and humiliation from all and sundry due to the nefarious actions, labeling and the maligning his name both within the Defendant Company and at large due to these accusations; that he has lost his family, most especially his wife due to the fact that he has been unable to make a living since his suspension by the Defendant and the freezing of his accounts on the authority and instruction of the Defendant; that he has been unable to meet his responsibilities to his family such as payment of his children's school fees, payment of upkeep allowances, and has had to live off the philanthropy of some relatives and his solicitors.

 

That he was shocked when he was served by Courier sometime in August 2019, with a Dismissal Letter dated 6th May 2019 and that he was barely dismissed after 3 years of suspension despite achieving to a significant extent, the repayment of the Loan Facility which was the only reason for the suspension; that he was not paid, was denied his entire salary and allowances for the period of the suspension despite the fact that the Defendant never made it a criteria for the suspension; that he purchased 281,000 units of Zenith Bank Plc shares and despite several demands for the Share Certificate; he was not issued a share certificate notwithstanding the payment of dividends up till year 2017. That the Defendant has stopped and/or refused to pay the him the dividends on the 281,000 units of Zenith Bank shares for year 2018 till date.

 

That as the Gbagada’s branch manager, his salary was in the sum of N1,330,009.84 (One Million, Three Hundred and Thirty Thousand, Nine Naira and Eighty-Four Kobo) per month, entitled to the payment of the sum of N3,500,000 (Three Million, Five Hundred Thousand Naira) being yearly Housing Allowance, entitled to the payment of the sum of N3,000,000 (Three Million Naira) being Profit Bonus paid annually to him in the course of his employment, entitled to the payment of the sum of N500,000 (Five Hundred Thousand Naira) being 13th month salary paid annually to him at the end of the year and entitled to the payment of the dividends accruing from the 281,000 units of Zenith Bank shares he purchased. That notwithstanding the purported Dismissal by the Defendant, the Defendant has failed to pay him the sum of N47,880,354.24 (Forty-Seven Million, Eight Hundred and Eighty Thousand, Three Hundred and Fifty-Four Naira, Twenty-Four Kobo) being the outstanding salaries owed for the 36 (Thirty-Six) months period wherein he was suspended; that the Defendant has failed and refused to pay him the Housing Allowance for the last three years which he is entitled to in the sum of N10,500,000 (Ten Million, Five Hundred Thousand Naira only); that the Defendant has failed and refused to pay the Claimant Profit Bonus for the last three years which the Claimant is entitled to in the sum of N9,000,000 (Nine Million Naira only); that the Defendant has failed and refused to pay him the 13th Month salary for the last three years in the sum of N1,500,000 (One Million Five Hundred Thousand Naira only).

 

That upon the failure and refusal of the defendant to pay his financial entitlements, he instructed his solicitors Delaw Chambers who wrote a Demand Letter dated 12th November 2019 to the Defendant, demanding for the payment of his entitlements but the Defendant has till date, failed, neglected and/ or refused to pay his lawful claims.

 

Under cross examination by the defendant’s counsel, CW confirmed that he has known and interacted with the defendant’s mentioned customer ‘Christ Embassy Loveworldsat Telecom Integrated Services Limited" and that he also worshipped in the church; that his relationship with the customer was duly disclosed to the defendant; that the facilities granted to the customer was for the purpose of acquiring four (4) properties in the total sum of 1.37 Billion within year 2013-2015; that monitoring of the loan is carried out at the branch level; that they have repaid N270, 000, 000 at the time he was invited by the defendant; that the loans were not performing; CW confirmed that he was given different notices of suspension at different times; that he did not get any handbook from the defendant; that he was tutored at the defendant’s head office on his supervising roles; that he got the defendant’s shares with his money and he was not issued a receipt nor share certificate by the defendant’s Registrar.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

The defendant opened its defence by calling its 1st witness, Mr. Assiak Aniete, a staff of the defendant’s Credit Risk Management group, wherein he adopted his witness statement on oath as evidence in this case. The 1st defendant’s witness statement on oath is that by virtue of the Claimant's position as the Branch Head, he had the responsibility of monitoring the performance of loans approved based on his recommendations; that the defendant granted several credit facilities to Christ Embassy Loveworld Satellite Telecommunication for the purpose of purchasing some properties and that in April 2016, the Loan Review and Monitoring Department of the Defendant noticed some irregularities in the operation of the Christ Embassy South Africa Project Accounts and the management of four ­term loans totaling N1,370,000,000 (One Billion, Three Hundred and Seventy Million Naira) only granted to Christ Embassy Loveworld Satellite Telecommunications Services; that as a result of the said irregularities, the defendant began the process of investigation and in the interim, the defendant’s internal control and audit department issued the claimant two (2) queries dated April 11, 2016 and April 22, 2016 respectively due to his involvement in the observed irregularities; that the Claimant acted unprofessionally by giving solicited assistance contrary to the scope and code of his office as the Branch Manager of the Defendant's Gbagada branch; that the actions of the Claimant constituted major infractions and breach of the Defendant's credit policy guidelines and also constituted offences under the criminal laws of this country and the defendant had no involvement or control whatsoever over the conduct of investigation by law enforcement agents.

 

That the fact that the Claimant has not challenged the mode of exercise of the investigative function of the law enforcement agents could be seen as an indication that he is aware that the investigation was conducted properly and professionally and that the claimant did not make any significant effort with respect to recovering the loan sum or the interest.

 

Under cross examination by the claimant’s counsel, DW1 stated that he works with the documentation and disbursement unit; that exhibit OJ23 is a term loan of #420, 000, 000 granted to C.E Loveworldsat Telecom to purchase property at GRA Ikeja and that Peter Amangbo and Elias Igbinakenzua are the signatories of the letter; that exhibit OJ24 was granted to Christ Embassy Loveworld (project) in April 30, 2014. That the two mentioned customers have the same Directors and that Sola Oladapo and Ebenezer Onyeagwu are the signatories of the letter; that nowhere in the letters was the name of the claimant mentioned; that he was not a member of the investigation panel; that based on the banking conduct, any staff managing customer’s account is held liable if there is any loss; that the claimant made the proposal and gave same to the defendant’s Executive Director to sign.

 

There was no Re-Examination by the defendant’s counsel. DW1 was thereafter discharged.

 

The 2nd defendant’s witness, Mr. Olufemi Badejo, a member of staff of the defendant’s Internal Control and Audit Department, wherein he adopted his witness statement on oath as evidence in this case. The 2nd defendant’s witness statement on oath is that by virtue of the Claimant's position as the Branch Head, he had the responsibility of monitoring the performance of loans approved based on his recommendations and that in April 2016, the Loan Review and Monitoring Department of the Defendant noticed some irregularities in the operation of the Christ Embassy South Africa Project Accounts and the management of four ­term loans totaling N1,370,000,000 (One Billion, Three Hundred and Seventy Million Naira) only granted to Christ Embassy Loveworld Satellite Telecommunications; that as a result of the said irregularities, the defendant began the process of investigation and in the interim, the defendant’s internal control and audit department issued the claimant two (2) queries dated April 11, 2016 and April 22, 2016 respectively due to his involvement in the observed irregularities; that the Claimant acted unprofessionally by giving solicited assistance contrary to the scope and code of his office as the Branch Manager of the Defendant's Gbagada branch and that the defendant in the course of further investigation into the matter, extended the claimant’s suspension by one (1) month via a letter dated May 3, 2016 due to his failure to comply with the banking policies with respect to management of the Christ Embassy Account; that the defendant advised the claimant to proceed to use the suspension period to focus on the recovery of the mismanaged loans and as consequence of his failure to comply with the banking policies with respect to management of the Christ Embassy Account; that the Defendant provided its Employee Handbook to the Claimant at the time of his employment.

 

That it updates its employee handbook occasionally and the updated employee handbook is accessible on the server to every employee of the Defendant to read and that all staff related documents are uploaded on the Defendant's workflows for ease of access by every staff; that the Defendant's Employee Handbook of December 2016 by which Defendant is bound provides that one of the disciplinary measures that may be explored by the Defendant where there has been a breach of company policy or procedure by an erring employee is suspension and that by virtue of paragraph 9.2 of the Defendant's Employee Handbook, where an employee is deemed to have demonstrated unsatisfactory conduct that is inconsistent with his/her responsibilities or position and disruptive to the smooth workings of the department or branch; puts the Bank's image or reputation at risk; or has been found culpable of a grievous policy breach, the Defendant may send such employee on suspension without pay. That the standard operating procedures of the Defendant as contained in its Employee Handbook provide for the suspension and dismissal of erring employees without pay.

 

That the Handbook specifically provided in paragraph 9.2 that the period of suspension could be a definite term ranging from two weeks to three month or may be extended beyond three months to allow the matter to be thoroughly investigated; that the Claimant is not entitled to his salaries and allowances as a result of his suspension; that the actions of the Claimant constituted major infractions and breach of the Defendant's credit policy guidelines and also constituted offences under the criminal laws of this country and the defendant had no involvement or control whatsoever over the conduct of investigation by law enforcement agents. That the fact that the Claimant has not challenged the mode of exercise of the investigative function of the law enforcement agents could be seen as an indication that he is aware that the investigation was conducted properly and professionally.

That the defendant is not responsible for the challenges allegedly faced by the claimant in his finances, home and family and that while in the defendant’s employment, the claimant was adequately and richly remunerated and received all his several benefits and allowances; that the claimant’s suspension was because of his breach of the defendant’s policies on loans; that the suspension was not continuous but was occasionally renewed when further facts relating to the claimant’s deep involvement in and personal benefit from the subject of the loan was uncovered; that the claimant did not make any significant effort to recover the loan sum or the interest; that the claimant in fact benefited personally from the subject of the loan and from the loan not being repaid; that the defendant by a letter dated May 6, 2019 dismissed the claimant from its employment for his role in the mismanagement of the Christ Embassy Loveworld Satellite Telecommunications accounts and the loan accounts. That the claimant is not entitled to any pay during his suspension as it is not the practice in any organization that an employee on suspension would be entitled to be paid while on suspension and that the claimant is not entitled to all the reliefs claimed against the defendant in this suit.

 

Under cross examination by the claimant’s counsel, DW2 stated that as at the time the facility was granted to the mentioned customers, they were in existence; that he is not aware that one of the Directors made an undertaking to pay back the money, nor aware that all the claimant’s personal bank accounts were frozen; that it is the duty of the staff to monitor such loan and if he fails, it becomes an infraction; that it is only 1 out of the 3 facilities granted that has been fully recovered.  

 

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

 

Upon conclusion of his evidence, the defendants closed their case. Written addresses were filed and exchanged by counsel to both parties. The defendant’s final written address is dated and filed 1st March, 2024 while the claimant’s final written address is dated and filed 5th April, 2024. The defendant’s Reply on point of law is dated and filed 10th May, 2024.

 

Learned counsel on behalf of the defendant identified the following issues for determination

 

1.     Whether from the facts of this case and the evidence led, the Claimant has proved that he is entitled to the reliefs on alleged outstanding salaries, housing allowance, profit bonus and 13th month salary for the period of suspension from work.

 

2.     Whether from the facts of this case and the evidence led, the Claimant has proved that he was wrongfully dismissed.

 

3.     Whether considering the provisions of section 284 of the Investment and Securities Act, 2007, this Honourable Court has jurisdiction to entertain the claimant's claim, bordering on purchase of shares, issuance of shares certificate and payment of dividends.

 

On issue one counsel submitted (1) that in the light of the Claimant's failure to either show that his suspension was wrongful, prove his reliefs as required by law, or deny the existence of Exhibit OJ27 (Defendant’s Employee Handbook 2016) which provides for suspension without pay, the reliefs sought in this regard ought to be dismissed. He cited the case of Jibrin v N.E.PA (2004) 2 NWLR (Pt. 856) 210 at 230 C-D and urged the Honourable Court to so hold and resolve this issue in favour of the Defendant and against the Claimant.

 

On issue two (2); the defendant’s counsel submitted that the evidence before the honourable court shows the relationship between the Claimant and Christ Embassy Love World Satellite Telecom, to whom the Defendant had advanced loans to, and to whom the Claimant provided assistance, contrary to bank policies, which led to irregularities and mismanagement of the loans advanced to Christ Embassy Love World Satellite Telecom; that the Claimant's dismissal was lawful as he acted unprofessionally and breached relevant policies and that the claimant has failed to establish his case of wrongful dismissal by the Defendant, especially having failed to show how the Defendant breached the terms of his employment when he was dismissed.

 

On issue three (3); counsel submitted that the Honourable court is not vested with the jurisdiction to entertain suit or claims bordering on securities of a company as they were not specifically mentioned in the provisions stipulating the jurisdiction of the Honourable court; that considering that the Claimant's claim borders on purchase of shares of the Defendant and incidental matters, it ought to be brought before either of the following forums: (a) The Administrative Proceedings Committee of the Securities and Exchange Commission (SEC), by virtue of Section 310 of the Investment and Securities Act 2007, Section 599 of the Securities and Exchange Commission Rules and Regulation 2013 and Rule 15 of Schedule VIII, Securities and Exchange Commission Rules and Regulation 2013; or (b) the Investment and Securities Tribunal, by virtue of section 284 of the Investment and Securities Act 2007.

 

That the Honourable court does not have the jurisdiction to entertain and determine the reliefs of the Claimant on issuance of share certificate and payment of dividends, and that in the unlikely event that the honourable court is of the view that it has jurisdiction to entertain the reliefs of the claimant, the Claimant has failed to prove payment for the purported shares and that it is not for the Defendant to issue a share certificate if at all the said shares were purchased. That having sufficiently challenged and discredited the reliefs sought by the claimant based on the arguments canvassed in this Final Written Address, the claimant’s claim for interest, general damages and cost of action ought to suffer the same fate and be refused by the Honourable court.

 

Learned counsel on behalf of the claimant formulated three (3) issues for the court’s determination viz:

 

1.     Whether the suspension of the Claimant for 3 years, consecutively and subsequent dismissal of the Claimant constitute unfair labour practice by the Defendant and is a breach of the Constitution of the Federal Republic of Nigeria, 1999 and in violation of applicable Nigerian Labour Law and International Convention.

 

2.     Whether the Claimant is entitled to his salaries, allowances and other emoluments during the period of suspension from work by the Defendant.

 

3.     Whether the Claimant has established his case for general damages against the Defendant.

 

It is the claimant’s counsel submission on issue one (1) that it is uncontroverted that the Defendant's emergency panel which was hurriedly setup violated the principles of natural justice in the investigation of the Claimant; that the Claimant was never given an opportunity to defend himself of the allegations levied against him, neither before the suspension or even during the 'working' suspension but before the Claimant's wrongful dismissal. That the honourable court is bound to take account of the length of time that the Claimant was on suspension with all his accounts frozen (including the claimant's other accounts at different banks through the order of the Police at the instant of the Defendant) and was unable to live like a decent human being during this lengthy period of suspension; that it is unreasonable to suspend an employee indefinitely or consecutively for such a lengthy period as it amounts to unfair labour practice for an employer to subject an employee to such conditions while on such continuous suspension especially as in this case when there is no backing for such suspension. He cited the case of Reuben & Ors. v. Arik Air Ltd. (2013) 34 NLLR (PT.102) 854 AT 876.

 

Continuing, counsel submitted that the suspension of the Claimant was not as a result of any infraction of banking law or code or any known law but was a result of malice as there is no offence known to law as "mismanagement of customer's loan/facilities" upon which the Claimant was unjustifiably suspended and eventually dismissed from the employ of the Defendant despite the recovery of the sum of more than N500, 000, 000 (Five Hundred Million Naira) from the efforts of the Claimant. He cited the case of Federal Polytechnic Idab & Anor v. Egbeke (2019) LPELR- 48727(CA) (Pp. 41-46 paras. F) and urged the honourable court to so hold.

 

On issue two (2); counsel submitted that it has been established and equally not in dispute from the aggregate of facts before the honourable court that the Claimant herein was an employee of the Defendant until he was wrongly dismissed by the Defendant sometime in August 2019 when he received the letter dated the 6th May 2019 and has in paragraphs 34 to 37 of the Statement on Oath given evidence on the outstanding salaries and allowances owed the Claimant over the period of 3 years (36 months) and the Defendant did not categorically deny the specific claims of the Claimant with respect to his emoluments.  That whilst it is clear that matters of purchase of shares, generally, are not within the ambit of the jurisdiction of the honourable court, the Claimant's claim before the honourable court is based on the lien the Defendant placed on the issuance and release of the Share Certificates which are evidence of the purchase of shares of the Defendant by the Claimant whilst he is under the employment of the Defendant, due to the alleged lack of monitoring of customer's account; that it is without a shadow of a doubt that the Defendant is the Principal of the Registrar (who was its subsidiary as Zenith Registrars, as at the time the shares were purchased) as it concerns the handling of Zenith Bank Plc (Defendant) shares and that the responsibilities of the Registrar, amongst others, include the distribution of Share Certificates, preparing/dispatch of dividend warrants in accordance with the directive of the Company and the Registrar cannot act on its own, without the necessary directive from its principal which is the Defendant in this case.

 

On issue three (3); counsel submitted that the action of the Defendant leading to the arrest and detention of the Claim is not only unfair but was done in bad faith (with malice), and amounted to a calculated attempt towards persecuting and oppressing the Claimant for reasons best known to the Defendant; that the Claimant, who was a Senior Manager, having worked with the bank since the year 1996 with no blemish had his right to liberty as enshrined by the constitution denied due to the influence and actions of the Defendant. That the Claimant has suffered for a cumulative period of 8 years since his suspension till date for the wrongful actions of the Defendant and as such the Claimant is entitled to the reliefs sought from the Honourable Court. He cited the case of Mrakpor & Anor v. PSC (2016) LPELR-40489(CA) (pp. 8-9 paras. D) and urged the honourable court to so hold.

 

On Reply on point of law to the claimant’s final written address, the defendant’s counsel submitted that the requirement of adequate notice of allegation and right to make representations in his defence was given to the Claimant before the suspension and dismissal of the Claimant from the Defendant's employment. That the Claimant's contention or allegation of bias or prejudice against him is grossly unfounded and ought to be discountenanced by the Honourable Court.

 

I heard learned counsel and considered all the processes filed, authorities cited and arguments in this suit. The issues for determination in this case are

 

1.     Whether the defendant’s reason for the claimant’s dismissal has been justified.

 

2.     Whether the claimant was given a fair trial.

 

3.     Whether the claimant is entitled to the reliefs sought.

 

Both parties have put in evidence documents in proof of their case and are Confirmation of employment (exhibit OJ1), Offer of Credit Facilities (exhibits OJ2, OJ3, 0J4, OJ5) tendered as exhibits OJ 23-OJ26 by the defendant, Suspension (exhibit OJ6), Extension suspension period (exhibits OJ 7, OJ8, OJ9, OJ10, OJ11, OJ12, OJ13, OJ14, OJ15). Authority to sell landed property (exhibit OJ16), Letter of Undertaking (exhibit OJ17), Request of Redemption of shares (exhibit OJ19), Dismissal (exhibit OJ20), Claimant’s solicitors’ letter (exhibit OJ 21), Pay slip (exhibit OJ22), Employee handbook (OJ 27). The case of the claimant is that he was employed as a permanent staff of the defendant and confirmed in 1996.  That a customer of the bank Christ Embassy Love World Sat Telecom Integrated Services Limited applied for four (4) term loans and same was granted, thereafter the customer defaulted in the payment and he was called to the head office on the non-performing loan. subsequently he was suspended and the suspension was extended at intervals. He was dismissed on 6th of May 2019.

 

The law is settled that in a claim for wrongful dismissal the employee has the onus to prove wrongful removal from office. See Nig Airways Ltd v Ahmadu (Pt 198) 492 CA. A master has full powers to terminate the employment of his servant at any time, for any reason or indeed, for no reason at all provided that the termination for such an employment follows the procedure spelt out in the contract of service, otherwise the master will be liable in damages for breach of the contractual agreement.  Th instant case is master and servant relationship devoid of statutory flavour, it was well within its right as a master to end the relationship without giving reason at all. See C.B.N v Amoika (2000) 13 NWLR (Pt 683) 21. Where however the master gives reason for dismissal, he has a duty to prove same to the satisfaction of the court. Prior to the dismissal, the claimant was placed on suspension by the defendant. Parties are bound by the contract they freely entered into, so the parties are bound by the conditions of employment. There is no dispute between the parties that Christ Embassy loveworldsat Telecom applied for four (4) term loans totaling N1, 370,000, 000 (One Billion Three Hundred and Seventy Million Naira) and that the claimant introduced the borrower as a member of the church. The loan was granted but the borrower Christ embassy loveworldsat Telecom failed to pay and the claimant was suspended. The 1st issue to be resolved is whether the suspension of the claimant is in accordance with the defendant’s condition of service. The claimant in his pleadings did not refer to same as wrongful though he claimed for salaries and other entitlements not paid during the suspension. He equally submitted that the hurriedly emergency panel set up to investigate the allegations levelled against him did not give him the opportunity to defend himself. The claimant in paragraph 10 of the amended statement of facts averred that he was suspended for one month on 3rd May 2016, then extended for a further month, two months interval, three months interval and then 6 months interval to enable the claimant recover the said loan. Clause 9.2 of the defendant’s employee handbook (exhibit OJ 27) provides as follows

 

 suspension

 

An employee may be sent on suspension without pay where he /she has been found culpable of a grievous policy breach, after investigation. The erring employee would have been issued a query and given opportunity to defend himself / herself which may include appearing before the banks disciplinary committee. The period of the suspension could be a definite term ranging from two weeks to three months or may be extended beyond 3 months to allow the matter to be thoroughly investigated.

 

In the 2nd and 3rd paragraphs of the letter of suspension (exhibit OJ 6) reads

 

A review of the operational activities and term Loans availed to the church accounts at Gbagada and head office reveal a total exposure of over 1.186 billion. consequently. you are hereby placed on one month suspension effective immediately to enable you concentrate on the full recovery of the total sum.

 

The second latter of suspension (exhibit OJ7) extended the suspension by one-month effective June 3 2016 to enable the claimant recover the outstanding amount. Exhibit OJ 8 is the third suspension by 2 months effective 4th July 2016. looking at other suspension letters the extensions in exhibit OJ 9 was for three months, exhibit OJ10 extended by 3 months, exhibit OJ11 extended by 3 months, exhibit OJ12 extended by 2 months and exhibits OJ 13- OJ 15 extended by 6 months respectively.  Under cross examination CW confirmed that he was given different notices at different times. The claimant claimed that he had not seen the handbook since he joined the defendant but could not tell the court on what he relied on to discipline his subordinates save for the tutoring from the head office.  And when asked on how he disciplined staff he testified that he issued query.  The claimant for the first time in his final written address raised the issue of suspension as violation of labour laws and terms of employment.  The claimant referred to defendant’s assertions in paragraphs 7, 8 and 11 of the consequential amended statement of defense as defendant acting in bad faith and that the claimant’s suspension which is based on the alleged breach by the claimant of its banking policy as contained in the employee handbook has failed to prove the specific bank policy or code the claimant violated under the employee handbook.  The master and servant relationship is generally governed by the terms of contract.  When the claimant was cross-examined, he testified that he was issued a query and that he had to face the disciplinary panel at the head office.  Again, the claimant’s submission in paragraph 4.10 of the final address cannot be true as he had testified that he appeared before the panel but was not allowed to respond to any question and that the defendant failed to prove the specific bank policy that was breached by the claimant to warrant suspension. This is contrary to the claimant’s averment in paragraph 9 of the amended statement of facts of 12th July 2023

 

The claimant avers that consequent to the customer’s default to liquidate the full amount of loan facilities, the claimant was summoned to the head office, being the staff who introduced the said customer to the bank as part of the core duties being to get corporate customers to open and maintain accounts with the defendant bank, questioning the state of the non-payment of the loan/ facilities granted the bank to the customer.

 

If the claimant was questioned on the non-payment of the loan facility and having admitted under cross examination that he was issued a query, what more did the claimant expect from the defendant to fulfil the principle of fair hearing. On powers of employer to set up panel for investigation over employee, the court in Alh Abdulahi baba v Nigeria Civil Aviation training center Zaria & Anor (- 1991 -92) ALL NLR 218 held thus

 

Where some allegations have been made against an employee, the employer is entitled to set up a panel to investigate the allegations.

 

The power of an employer to discipline an employee cannot be over emphasized.   In Udemah v Nig Coal Corp 9 (1991) 3 NWLR (Pt 180) 477 CA the Court of Appeal held thus on the right of the employer with regards to suspension

 

The employer has the right to suspend an employee for the purpose of investigation or disciplinary action. However, the employer must comply with the existing regulation.  

 

In the instant case, the employee handbook provides for suspension without pay.  If the claimant’s claim is that he has not seen the employee handbook since joining the defendant, how did he come up with the provisions in the handbook and the violation of same and that the handbook did not provide for indefinite suspension.  To start with, was the claimant given fair hearing? The claimant’s submission is that the defendant failed to prove the specific bank policy that was breached by the claimant to warrant a suspension. misconduct is what the employer terms as misconduct. CW under cross examination testified that he was issued a query and this is in compliance with the handbook. In paragraph 4.5 of the claimant’s final written address, the claimant wrote that during cross examination, he was called to the head office where he faced emergency panel who did not allow him to talk or respond to questions directed at him. This confirms that he was issued a query and eventually faced a panel which satisfies the provision of fair hearing. How could one in the light of the above evidence, say that the claimant was not treated fairly before suspension.   On the issue that he had not seen the employee handbook cannot be true as he signed an acknowledgement with these words in exhibit OJ 28 in 1996.

 

I Osajele John Oselen hereby acknowledge receipt of one copy of the staff handbook.

 

The claimant did not in his pleadings or evidence challenge the authenticity of the signature on the employee handbook given to him when he joined the defendant. By virtue of section 135(1) of the Evidence Act. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts. See Section 137 (1) and Section of 139, See Ojoh v Kamalu (2005) 18 NWLR Pt, 958 (D-F), Baba -iya v Sikelli (2006) 3 NWLR Pt 968 page 508 at 539 – 540 (g-b). Applying the principles in these cases, the burden is on the claimant to prove that he has never seen the employee handbook. What is more is that he did not plead nor refer to the employee’s handbook in his pleadings. But would in the final written address submit in paragraph 4.38 that the indefinite suspension of the claimant is not in tandem with the condition of service as contained in the employee’s handbook as same is without pay and claimant’s account frozen. There is no evidence before the court that the claimant’s account was frozen and the employee’s handbook provides ‘’ an employee may be sent on suspension without pay ‘’. In Aiki v Idowu (2006) 9 NWLR pt 984 page 47 at 65 (A-C) the Court of Appeal held that documents when tendered and admitted in court are like words uttered and do speak for themselves. The court held that they are even more reliable and authentic than words from the vocal cord of man because are not subject to distortion and misrepresentation but is permanent. It is my view that this captures the situation of the claimant who denied ever seeing the employee’s handbook but goes on to rely on same when needed.  Now to the main issue whether the suspension is indefinite as stated by the claimant, the defendant’s response is that the suspension is a form of punishment which under clause 9.2 of the employee handbook provides ‘’ An employee may be sent on suspension without pay where he / she has been found culpable of a grievous policy breach, after investigation. The erring employee would have been issued a query and given opportunity to defend himself / herself which may include appearing before the banks disciplinary committee. This was what the defendant did as the period of suspension was in tandem with the employee’s handbook which period were all definite and had to extend the suspension as shown in exhibits OJ 14 & OJ 15 to six months which is equally provided in the employee’s handbook where it provides that the suspension could be a definite term ranging from two weeks to three months or may be extended beyond three months.

 

I am of the view that the defendant complied with the terms of employment. The claimant was suspended after he was issued a query and he also faced a disciplinary panel. As it is the claimant that asserted that there is a breach in the suspension, he has the duty to prove same. In my respectful view, the defendant acted fairly by issuing query and allowing the claimant to face a panel. It is clear that the claimant was given the opportunity to defend himself as encapsulated in the principles of fair hearing as provided in the constitution. See Assams & Ors v Ararume 7 Ors (2015) LPELR -40828 (SC), Sule & Ors v Orisajimi (2019) LPELR – 47039 (SC).   That being so, I am of the strong view that the claimant was given opportunity to defend himself on the allegation put up by the defendant on the non-performing loan of Christ Embassy Loves world Sat Telecom. Therefore, the call by the claimant for the court to look at the documents (exhibits OJ6 – OJ 15 and make prouncement concerning his suspension has no legal basis as the claimant did not even ask for a relief of same as being wrongful save for the reference in paragraph 4.43 in the final address and moreover the suspension was done in line with the employee’s handbook which is binding on both parties.  

                 

The 1st relief is for a declaration that the claimant was wrongfully dismissed from his employment. It becomes pertinent to reproduce part of the letter of dismissal at this juncture (exhibit OJ 20).

 

May 6, 2019

 

John Osajele

 

Dear Mr Osajele

 

DISMISSAL

 

This is to advise you that you are hereby dismissed from the services of the bank effective May 7th 2019 for colluding with a customer to divert facility funds and benefitting from same.

 

Yours faithfully

 

ZENITH BANK PLC

 

Ede Lanre -Babalola

 

Human resources

 

The reason given by the defendant for the dismissal is that claimant was dismissed for colluding with a customer to divert facility funds and benefitting from same, it lies on that employer to justify the reason if challenged. See Angel Shipping & Dyeing Ltd v Ajah (2000) 13 NWLR (pt 6985) 532 CA and Afribank v (Nig) Plc v Osisanya (2000) 1 NWLR (pt 642) 592 CA. The law is trite that he who asserts must prove.

 

The evidence before the court is that the claimant as the Gbagada Branch Manager of the defendant introduced a customer ‘’ Christ Embassy Love World Sat Telecom Integrated Services Limited for loan facility and defaulted by failing to liquidate the full indebtedness at the due date.  That in colluding with the customer, he diverted facility funds and befitted from same. Is there any evidence to this effect? The defendant in paragraph 6 of the consequential amended statement of defense averred that the loan review and monitoring Department of the defendant noticed some irregularities in the operation of the customer’s account and management of the loan and equally acted unprofessionally by giving solicited assistance to the scope and code of his office as the Branch Manager of Gbagada Branch. The defendant did not tell the court the irregularities in the operation of the account. As the court is not in a position to know what the defendant terms irregularities in operation of the account. what assistance did the claimant offer the customer contrary to the scope. The letters of offer are shown in exhibits OJ2, OJ3, OJ4, OJ5, which spanned a period of 2013 to 2015 the defendant tendered as exhibits OJ 23, OJ 24, OJ25, OJ26.  All offer of credit facility to the customer emanated from the Head Office and signed by Peter Amangbo, Elias Igbinakenzua (Executive Director), Sola Oladipo and Ebenezer Onyeagwu (Executive Director), while exhibit OJ 4 has Gbagada branch, signed by the claimant and a Deputy General Manager Kunle Adegbie as offering the sum of N430, 000, 000 to the customer. These loans ought to have been secured by the defendant. The court is not told what collateral that was given before the facility was approved by the authority. The claimant denied that he committed the offence for which he was dismissed. The claimant relied on exhibit OJ17 to state that he recovered part of the loan from the defendant relying on undertaking and takes full responsibility for same. A close look at exhibit OJ 17 is a letter written after the loan was given to Christ Embassy SA and Love Worlds Accounts in 2013 to 2014. Guarantees on loans are given before the loan is granted not after the loan has been taken except where there is requirement for additional collateral and in a face-saving mood issue a letter of undertaking to the claimant to sell a piece of land in Ikeja. There is no doubt that in a banker relationship when necessary and in urgent need can apply for a loan facility, but such banking transactions are strictly documented and the terms explicitly stated defining terms, bonds and conditions and then the duration and interest rate and acceptance by the applicant. See Alhaji M, U, & Sons Ltd v L.B.N. Plc (2006) 2 NWLR (pt 964) 288. In our law, the burden lies on the person who alleges to prove and in the instant case prove evidence to show the role played by the claimant in the non-performing loan.  Until there is conformity with above stated principle, a court of law ought to hesitate to hold in favor of the defendant. The defendant in reply to the claimant’s contention stated that consequent to the customer’s default to liquidate the full amount of loan facilities, the claimant was summoned to head office as he introduced the said customer, responded that some irregularities in the operation as the loan totaled to N1.3 7 billion and that the claimant acted unprofessionally. The succinct submission by the defendant on the justification for the claimant’s dismissal in paragraph 5.15

 

The claimant did not however avert his mind that the neglect of his duties in the management of the loan granted to love world sat by the defendant was in breach of the defendant’s policies, warranting a dismissal. It is therefore the defendant’s position that from the evidence adduced before this court, the defendant’s dismissal of the claimant from its employment is lawful in view of the several infractions of the claimant’s policies by the defendant.

 

What evidence has the defendant tendered to show the claimant’s negligence in the handling of the customer’s account. The defendant has not told the court the role of the claimant in this non-performing loan. That he acted unprofessionally by providing assistance as it did not comply with banking policies is equally not before the court. The court has not been shown what aspect became unprofessional from inception when the application for the loan was made and signed by the Executive Directors of the defendant and the claimant in exhibit OJ26 to the execution and thereafter when the customer Christ Embassy loves world sat Telecom failed to pay.  Perhaps the defendant or I dare say his counsel is not aware of the principle of law that he who avers must prove and in the present case having given reason for the dismissal must justify same.  That the claimant recommended the customer and attended the same church Christ Embassy which means he knew the borrowers is not misconduct nor evidence for the claimant’s dismissal as the defendant ought to follow its laid down guidelines before approving the credit facility. The claimant is entitled to one month salary in lieu of notice.

 

There is the claimant’s contention on when an employer makes a report to the police the employer must await the outcome before taking any action. during the period when the customer was not forthcoming with the repayment of the loan the matter was reported to the EFCC and to the police. this is in contrast to the claimant’s assertion in paragraph 4.5 of the final written address when he submitted that an employer need not wait for an employee against whom there is an allegation of misconduct bothering on crime to be prosecuted and convicted by a court before he can exercise his power to dismiss such an employee summarily. There is a seeming approbation and reprobation in this paragraph 4.13 of the final written address.

         

Based on the above, I am of the humble and firm opinion that the dismissal of the claimant is not justified in the absence of the ability of the defendant to prove how the claimant was negligent in the loan granted to the customer and his involvement in same. I accordingly find the dismissal wrongful.

 

The second relief is for a declaration that the claimant as former employee of Zenith Bank Plc is entitled to outstanding salaries and entitlements due to the claimant in reliefs C, D, E, F. The claimant’s claim as shown above is for the period of suspension and having held earlier in this judgment that the claimant suspended without pay as same is provided in the employee’s handbook, all the items of claims by the claimant for outstanding salaries, housing allowance, profit bonus, 13th month salary under this during suspension cannot be granted by this court and I so find and hold. The reliefs fail and are dismissed.

 

The next relief is for an order that the defendant issue the share certificate of the claimant’s 281, 000 units of Zenith Bank shares purchased by the claimant.  Exhibit OJ 20 is a handwritten letter addressed to the Chief Inspector of the defendant, there is no document to show that he has such number of shares allotted to him by the defendant and the payment of same. How is the court to know how and when these shares were paid for with no share certificate.  The relief fails and is dismissed.

 

Relief h is for an order that the defendant pay all accrued dividends since year 2018 till date.  There is nothing before the court on this. the relief fails and is dismissed.

 

Relief I is for an order that the defendant pay interest accrued on the above stated amount from May 3rd, 2016 till final liquidation. As relief H was not granted relief I fails automatically.  

 

Having refused the reliefs during suspension, the claimant did not tell the court if he was allowed to go back to work, moreover there is no claim for the period not under suspension. In all the claimant cannot be entitled to pay if he did not work for the period when he was not on suspension until dismissal.

 

For all the reasons given above, I hereby declare and make the following order.

 

1.     It is declared that the dismissal of the claimant is wrongful.

2.      I order the defendant to pay the claimant one month salary in lieu of notice.

 

3.     I make no order as to cost.

 

Judgment is entered accordingly.

 

 

HON. JUSTICE A.N. UBAKA

JUDGE