NICN - JUDGMENT
IN THE NATIONAL
INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA
JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 11TH
DAY OF SEPTEMBER, 2024
BEFORE HIS LORDSHIP:
HON. JUSTICE S.O. ADENIYI
SUIT NO: NICN/KD/28/2021
BETWEEN
BAMGBOJE OLASUNKANMI ……………………….……
CLAIMANT
AND
KEYSTONE BANK LTD …………………………………… DEFENDANT
(formerly Bank PHB, Platinum Habib Bank Plc)
J U D G E M E N T
The Claimant is a
former employee of the Defendant and was until his dismissal, the Resident
Internal Control Officer of its Kaduna South Branch. In summary, his case is
that, the dismissal of his appointment by the Defendant is invalid, null and
void, having not been given fair hearing. His further grievance against the
Defendant is that, without being convicted by any Court of law on allegations
bothering on unauthorized debiting of a customer’s account and unethical
behaviour, the Defendant submitted his name to the Central Bank of Nigeria for
blacklisting and he has subsequently been unemployable in the banking and
related industry or sector. The Claimant alleged that he has not been able to
access his salary account that was blocked by the Defendant when he was placed
on suspension since January 2016 and has thereby suffered untold hardship as a
result of the actions of the Defendant.
2. Being aggrieved, the Claimant instituted the instant action; vide Complaint and Statement of Facts
filed in this Court on 29/07/2021,
whereby he claimed against the Defendant, reliefs set out as follows:
i. A Declaration that the dismissal of
the Claimant on the 3rd August, 2016 by the Defendant is invalid, illegal,
unlawful, unconstitutional, null and void and of no effect as the same was
ultra wires the powers of the Defendant and in breach of the rules of natural
justice as the Defendant assumed the role and power of a Court to find the Claimant
guilty of a criminal offence that he was never tried and/or convicted for by a Court
of law nor was the action of the Disciplinary Committee before whom he was made
to appear in Lagos in line with his contract of employment or in accordance
with the Defendant’s Sanction Grid aforementioned.
ii. A Declaration that the Claimant remains
an employee of the Defendant until he is validly subsequently disengaged.
iii. A Declaration that the “blocking” or
“freezing” of the Claimant's salary account is unlawful, illegal,
unconstitutional, null and void.
iv. An Order of this Honourable Court
directing the Defendant to withdraw the purported letter of dismissal dated 3rd
August, 2016 to the Claimant.
v. An Order of this Honourable Court
reinstating the Claimant into
the service of the Defendant and directing the
payment of his full salaries, entitlements, allowances, rights, emoluments and
privileges
from January 2016 till date.
vi. A Declaration that the Claimant is
entitled to an Exit Certificate on the valid determination of his employment
with the Defendant subsequently.
vii. An Order of this Honourable Court
directing the Defendant to issue the Claimant with a letter of apology (to be
copied to the Central Bank of Nigeria and published in 3 widely circulating National
Dailies) “on his ill-treatment in flagrant abuse of his Constitutional rights”.
viii. An Order of this Honourable Court for the
release (forthwith) of the Claimant’s “blocked/frozen” Account Number -
1160047972 with the Defendant.
ix. An Order of this Honourable Court
compelling the Defendant to calculate and “release” to the Claimant his
withheld salaries (from January 2016 when he was suspended to 3rd August, 2016,
when he received a mail of the purported letter of his dismissal) being the sum
of N1,724,386.07 (One Million, Seven Hundred and Twenty-Four Thousand, Three
Hundred and Eight- Six Naira, Seven Kobo).
x. Damages in the sum of N20,663,278.62
(Twenty Million, Six Hundred and Sixty-Three Thousand, Two Hundred and Seventy-
Eight Naira, Sixty-Two Kobo) being the conservative amount the Claimant would
have earned as wages and emoluments as at January 2021 had he been allowed to
continue with his employment according to his contract of employment with the Defendant
and from February 2021, the monthly sum of N478,737.99 until the determination
of this matter.
xi. The sum of N50 Million for defamation of
the Claimant’s character.
xii. Legal cost of prosecuting this action
being the sum of N500,000 (Five Hundred Thousand Naira) only.
xiii. 10% interest on the entire judgment sum
awarded by this Court with effect from the date of such judgment until the
final liquidation thereof.
xiv. The cost of this action
as assessed.
2. The Defendant
disputed the case of the Claimant in the Statement
of Defence deemed filed on 09/11/2021. The gist of the Defendant’s defence is
that, the Claimant, as Resident Internal Control Officer, without due
authorization and in total disregard of the Bank’s Policy on withdrawal from
customer’s account, collected the sum of N250,000.00 (Two Hundred and Fifty
Thousand Naira) from the Bank’s Teller without ticket and also authorized the
debiting of a customer’s account without proper instrument and thereby abused
his office. The
Defendant contends that the Claimant is not entitled to his claims and maintained
that, based on its sanctions grid for misconduct, he was given opportunity to
be heard and that the dismissal of
his appointment was properly
conducted. The Claimant’s Reply to the Statement of Defence was
deemed filed on 03/02/2022.
4. At the
plenary trial, the Claimant testified in person by adopting his Statements on Oath as his evidence-in-chief; and tendered eighteen (18) sets of
documents as exhibits. He
was thereafter, cross-examined by the Defendant’s learned counsel.
The Defendant, in turn called one Sunday Ajao, the Internal
Control Officer, as the sole witness. In like manner, he adopted his Witness
Deposition on Oath and tendered no exhibit.
Thereafter,
parties, through their respective learned counsel filed and exchanged their
written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.
5. In the final address deemed filed on 23/02/2024, learned
counsel for the Defendant, Godwin
Udondiah Esq., formulated a sole issue as having arisen for
determination in this suit, that is:
“Whether the Claimant
from the state of pleadings before this Honourable Court and the evidence led
thereon is entitled to his claims?”
Learned counsel for the Claimant, A.
A. Manta Esq., adopted the issue formulated by learned Defendant’s
counsel, in his final address deemed filed on 17/04/2024.
The Defendant’s Reply
on Points of Law was deemed filed on 13/06/2024.
6. I have painstakingly examined the totality of the pleadings filed by
both parties in contention; the reliefs claimed, the totality of the admissible
and relevant evidence adduced at the trial; and the totality of the written
addresses and oral summations of learned gentlemen for the two parties; my view
is that, the issue as formulated by learned Defendant’s counsel adequately
covers the field of dispute in this suit. As such, the Court hereby adopts same
in determining this suit. In adopting the issue, I shall make specific
reference to the arguments as I deem necessary in the course of this judgment.
7. As a starting point, I should restate the universal evidential
principle that the burden of proof in any case is on the person who desires a
Court to give judgement as to any legal right or liability dependent on the
existence of facts which that person asserts or who will fail if no evidence
were given on either side. See Section 133 of the Evidence Act 2011.
I am also not unmindful that declaratory reliefs are only granted as products
of credible and cogent evidence proffered at the instance of the Claimant. See Col.
Nicholas Ayanru (Rtd.) Vs Mandilas Ltd [2007] 4 SCNJ 388; Nweke Vs
Okorie [2015] LPELR 40650.
7. As disclosed in the Statement of Facts, the Claimant averred that he was
employed by the Defendant, formerly known as Bank PHB Plc; that thereafter, he
proceeded on induction course; that he resumed at the Defendant’s training
school as Executive Trainee and that upon completion on 21/01/2008, he was deployed
to the Internal Control Group North, Risk Management and Control Division and
subsequently became an Executive Assistant. The Claimant testified that at the
changes in the name and organizational structure, the then Bank PHB Plc was renamed to Keystone Bank Ltd by the
Central Bank of Nigeria and on 05/08/2021, he was offered an employment as
Executive Trainee in the Internal Control Department.
8. In his testimony, the Claimant narrated that one Adeyinka Aromolaran,
his business associate, in a telephone conversation, requested him to process a
bank transaction on his behalf; that subsequently the said Adeyinka Aromolaran sent
an SMS on 12/08/2015, to both himself (the Claimant) and to his Account Officer,
one Popoola Ayotunde, to release the sum of N250,000.00 to the Claimant and
that after the SMS was shown to both the Service Manager (Head of Operations),
one Aminu Lawal and to one Tolulope Alao, the Service Officer (Cash Officer), the
Claimant collected the money. According to the Claimant, this process was in
line with the Defendant’s Policy on Execution of Customer’s instruction
communicated by e-mail, telephone or by Account Officer. The Claimant testified
that in line with the said Bank Policy, the Service Officer placed a call to
the Account holder/customer that is, Adeyinka Aromolaran, to confirm the transaction
before it was processed; that the ticket prepared by the Teller for the
transaction was subsequently regularized/ratified by the said Account holder/customer
and that he (the Claimant) got a call from the Account holder to confirm that
he had received the debit notification of the transaction.
9. According to the Claimant, the relationship between himself and the
said Account holder/customer turned sour in December 2015 and as a result the
Account holder threatened and made his life unbearable and his action prompted
him to instruct his solicitors to write a warning letter to the said customer.
The Claimant further testified that on 06/01/2016, while he was on leave, a
query was issued on him by the Zonal Internal Control Manager and that attached
with the query is a copy of the solicitors’ of Adeyinka Aromolaran, stating that
their client was ignorant of the transaction of the sum of N250,000.00 debited
from his account. CW1 testified that in January, 2016, he received series of
queries from the Investigation Unit of the Defendant; that he was placed on
indefinite suspension in February 2016; that his salary account has since been
blocked.
10. The testimony of the Claimant is further that, in line with the
Defendant’s Bank PHB Disciplinary Policy and Sanction Grid, as officer below
the Executive Associate Grade (Manager), instead of being made to face the
Internal Bank/Regional Disciplinary Committee, he was invited to face the
Senior Staff Disciplinary Committee at the Head Office in Lagos on 19/05/2016.
The Claimant alleged that he was not given fair hearing in his defence; that
the Disciplinary Committee disregarded the explanations he offered in relation
to the allegations of debiting a customer’s account; that the Disciplinary
Committee were pre-determined to find him guilty and thereby unjustifiably
concluded that he stole funds or customers’ money and was subsequently
dismissed on 03/08/2016, by letter of dismissal that was sent via email.
11. The Claimant further alleged that he was never charged or convicted
before a Court of law; that as stated in the dismissal letter, his name was
submitted by the Defendant to the Central Bank of Nigeria for blacklisting
without subjecting him to any criminal trial; that due to the blacklisting/publication,
his image has been tarred with stigma and that he has not been able to secure
another job with any financial or allied institution. The Claimant also
testified that at the time of his dismissal, his monthly salary was
N478,737.99; that since January 2016, he has not been able to have access to
the funds in his account with the Defendant and that he has been subjected to
untold hardship by the actions of the Defendant. He testified further that he
instructed his solicitors to institute this action due to the failure of the
Defendant to yield to the various demand made on his behalf by his solicitors.
12. The following documents were tendered and
admitted in further support of the Claimant’s case:
a.
Letters of offer of employment of Bank PHB dated
08/11/2007 and 17/01/2008 and Induction Certification of Bank PHB - Exhibit
C1, Exhibit C1B and Exhibit C1A respectively.
b.
Letter of Employment of Keystone Bank Ltd dated
05/08/2011 - Exhibit C2.
c.
Policy on Execution of Customer’s Instruction
communicated by E-mail, Telephone or by an Account Officer – Exhibit C3.
d.
Bank PHB Disciplinary Policy and Sanction Grid – Exhibit
C4.
e.
Statements made by Bamgboje Olasunkanmi and Adeyinka
Aromolaran at the Police Station – Exhibits C5 and C5A.
f.
Undertaking made by Bamgboje Olasunkanmi – Exhibit
C6.
g.
Letters dated 29/12/2015 by Claimant’s solicitors to
the Honourable Commissioner of Police and Mr. Adeyinka Aromolaran – Exhibits
C7 and C7A.
h.
Letter of Dismissal – Exhibit C8.
i.
Letter dated 01/09/2016 by Claimant’s solicitor to
Divisional Head, Human Capital Management of Keystone Bank Ltd – Exhibit
C9.
j.
Claimant’s solicitors bill of charges and receipt – Exhibits
C10 and C10A.
k.
Petition dated 02/05/2012 by Regional Manager Control
to the Director State Security Service, Kaduna – Exhibit C11.
l.
Print out of text message of one Yinka Leadway – Exhibit
C12.
m.
Keystone Bank savings withdrawal slip of Adeyinka
Aromolaran – Exhibit C13.
13. The testimony of DW1, as the sole witness of
the Defendant is that without due authorization and in total disregard of the
Bank’s policy on withdrawal from customer’s account, the Claimant abused his
office as Resident Internal Control Officer by authorizing the debiting of
customer’s account without proper instrument and collected the sum of
N250,000.00 from the Bank’s Teller without ticket.
14. DW1 further testified that a customer of the Bank, one Adeyinka
Aromolaran, made a complaint denying that he sent any message to his account
officer for debiting the sum of N250,000.00 on his behalf; that upon receipt of
his letter of complaint of tampering of the customer’s account by the Claimant
and the withdrawal of the sum of N250,000.00 without approval, the Defendant
issued a query to the Claimant to explain his role in respect of the customer’s
complaint and that the Claimant was placed on suspension pending the outcome of
the inquiry of the complaint.
15. In his further testimony, DW1 testified that the Claimant was
offered ample opportunity to explain his position and to defend himself on his
role before the Defendant’s Disciplinary Committee. DW1 denied that the
Defendant’s Staff Disciplinary Committee operated on Bank PHB Disciplinary
Policy and Sanction Grid and testified that the dismissal of
Claimant’s appointment for gross misconduct was based on the Defendant’s Sanctions
Grid. DW1 also testified that in consonance with its Sanctions Grid, the
Defendant did not need to report the Claimant to the Police and/or secure
conviction before taking disciplinary action against him for professional
conduct and that having been dismissed for misconduct, his name was submitted
by the Defendant to Central Bank of Nigeria (CBN) in line with CBN’s guideline
for blacklisting.
16. In his Reply to the Statement of Defence, the Claimant testified
that he complied with the guidelines for debiting customer’s account and for
collecting money on customer’s behalf and categorically denied that he had
right to authorize withdrawal and debit any sum from customers’ account. The
Claimant further testified that the customer’s complaint to the Defendant was
written about six months after the transaction in issue and that he had
promptly responded when the query was issued by the Defendant. He also testified that as at December 2015,
Bank PHB Disciplinary Policy and Sanction Grid was adopted by the Defendant; that
being an officer below the level of a Manager, instead of the Regional
Disciplinary Committee in Abuja, he had to travel to Lagos to face the
Disciplinary Committee and further contends that the Defendant’s Sanction Grid
provides for investigation of cases that involved financial issues by the
Police, EFCC and other law enforcement agency
before any action can be taken by
the Defendant.
17. By my understanding, the Claimant’s grievance against the Defendant
is that he did not commit any offence or misconduct as alleged by the Defendant
to warrant the dismissal of his appointment; that he complied with the procedure
of the Defendant’s Policy on Execution of Customer’s instruction communicated
by e-mail, telephone or by Account Officer for the sum of N250,000.00 he
collected on behalf of Adeyinka Aromolaran and as such, the purported dismissal
of his appointment by the Defendant on the ground of gross misconduct is
unlawful/wrongful.
18. His further grouse is that the Defendant’s Disciplinary Committee
had
pre-determined the matter and that he was found guilty of all
allegations without being given the opportunity to be heard. He further
contends that being an officer below the Executive Associate Grade (Manager),
the procedure as stated in the Defendant’s Bank PHB Disciplinary Policy and
Sanction Grid was not complied with by the Defendant before he was dismissed. The
Claimant also contends that without being convicted before a Court of law, his
name was submitted by the Defendant to the Central Bank of Nigeria for
blacklisting and that due to the blacklisting/publication, his image has been tarred
with stigma. The Claimant also alleged that he has not had access to his salary
account since January 2016, when he was placed on suspension. The particulars
of the allegations by the Claimant against the Defendant are stated in paragraphs
31, 32, 33, 40, 49, 50, 54, 55, 58, 59, 61, 62. 63, 64, 65, 67 and 70
of his Witness Deposition on Oath.
19. Now, parties are ad idem that the employment between the
Claimant and the Defendant was governed by Exhibit C2, letter of
offer of employment. The Claimant’s contention is that the Defendant violated
the disciplinary procedure as stated in Exhibit C4 – Bank PHB
Disciplinary Policy and Sanction Grid in dismissing his employment. By this
testimony, the Claimant alleged that Exhibit C4, regulates the terms and condition
of his appointment and that the Defendant is in breach of same. However, DW1, in paragraph 13 of his
Witness Deposition on Oath, categorically denied this fact and contends
that the dismissal of the Claimant was based on the Defendant’s Sanctions Grid
for misconduct and also maintained that fair hearing was accorded to the
Claimant by the Defendant.
20. In his written submission, learned Defendant’s counsel argued that
the
issue of non-compliance with Exhibit C4, before the dismissal of the
Claimant does not arise, in that, the said exhibit pleaded and relied upon by
the Claimant is not that of the Defendant but that of Bank PHB and learned
counsel also argued that the Defendant and Bank PHB are two different legal
entities. Learned counsel argued further that by Exhibit C2, the Claimant was
offered employment by the Defendant and that it was not stated in the said
exhibit that the offer with the Defendant was a continuation of his employment
with Bank PHB.
21. Now, the settled
position of law and as correctly submitted by learned Defendant’s counsel is
that in an action for wrongful termination of an employment as the present
case, the onus is always on a Claimant to prove the terms of the agreement
allegedly breached. It is needless to cite authorities for these well-known principles. It
is also provided in Section 136 of the Evidence Act (supra) that
the burden of proof may in the course of a case be shifted from one side to the
other. In other words, in civil cases, the Claimant has the initial burden to
lead evidence to prove his assertion but the burden of proof is not static.
Once the Claimant establishes a prima facie case, the burden of leading
evidence in rebuttal shifts on the Defendant and vice versa. This provision of
the Evidence Act has been considered by the Courts in a plethora of
authorities. See Onovo Vs Mba [2014] 14 NWLR (Pt 1427) 391; Itauma
Vs Akpe-Ime [2000] LPELR 1557; Ezemba Vs Ibeneme & Anor [2004]
LPELR 1205. It is clear from the above authorities and the plethora of
cases on burden of proof that in order to discover where the burden of proof
lies in civil a case, the Court has a duty to peruse the entire pleadings of
both parties.
22. In the present case, I had undertaken a careful examination of the entire
processes/pleadings filed by both parties. In prove of his case, the Claimant
tendered Exhibits C1 and C1B as his letters of offer of
appointment with Bank PHB Plc. The testimony of the Claimant is that, at the
change in the name and organizational structure of the then Bank PHB, he was
offered an employment with the Defendant in Exhibit C2. The
Claimant further tendered Exhibit C4, as the document guiding the
disciplinary policy of the Defendant. It is imperative to state that the
Defendant is sued as, Keystone Bank Limited (formerly Bank PHB, Platinum Habib
Bank Plc). In other words, the Defendant never contested that its name as
stated in the entire court processes filed is Keystone Bank Ltd and not “formerly
Bank PHB, Platinum Habib Bank Plc”. There was no contrary evidence by the
Defendant that the Bank PHB Plc was not converted or fused into Keystone Bank
Ltd.
23. As I noted earlier,
the law relating to burden of proof is simple and straightforward. He who
asserts must prove, but where a party has offered sufficient evidence, the
other party will then be the one to lose if no evidence is adduced in rebuttal;
in other words, the burden shifts to that other party. The unequivocal finding
of this Court is therefore, that the Claimant has essentially established a ‘prima
facie’ evidence by placing in evidence, Exhibit C4 as the document
regulating the disciplinary policy and sanction grid of the Defendant. The
Defendant had denied that the said exhibit is its document and and asserted that the
dismissal of the Claimant was based on its own sanctions grid for misconduct, as a result of this assertion, the burden of leading
evidence in rebuttal shifted on the Defendant. However, the Defendant failed to tender any
document to discharge the burden in rebuttal. Having failed to discharged
the burden, the Claimant has proved that Exhibit C4, Bank PHB Disciplinary
Policy and Sanction Grid, regulates the disciplinary procedure of the Defendant
particularly in relation to his dismissal. And I so hold.
24. Now, it is indubitable that the instant case is that of master and
servant and not a contract of service with statutory flavour. In the
circumstance, it is settled and as correctly submitted by learned counsel for the
Defendant, that for the Claimant to
succeed in his claim, he must prove that the Defendant breached the condition
of service of his employment. See Amodu Vs Amode [1990] 5 NWLR (Pt 150) 356; Angel
Spinning & Dyeing Ltd Vs Ajah [2000] 13 NWLR (Pt 685) 532; Ogumka Vs
Corporate Affairs Commission [2010] LPELR 4891.
25. Learned counsel for the Defendant in his written address submitted
that by Order 30 Rule 1 of the Rules of this Court and the authorities of Ovivie
Vs Delta Steel Co Ltd [2023] 14 NWLR (Pt 1904) 203; Morohunfola Vs
Kwara Tech [1990] 4 NWLR (Pt 145) 506; University of Calabar Vs Essien
[1996] 10 NWLR (Pt 477) 225, U.I.T.H.M.B Vs Aluko
[1996] 3 NWLR (Pt 434) 74, Statement of Facts should contain the contents of
the contract of employment and the terms of employment allegedly breached in an
action for unlawful or wrongful termination or dismissal of appointment.
Learned counsel argued that the Claimant has not set out his cause of action
for the reliefs sought as his Statement of Facts have not in any way set out
the facts of the employment, the terms or conditions of employment and the
terms of employment that were breached by the Defendant.
26. Citing the cases of Ajayi
Vs Texaco (Nig) Ltd [1987] 3 NWLR (Pt 62) 577 at 593; Yusuf Vs
U.B.N Ltd [1996] 6 NWLR (Pt 457) 63; U.B.N Ltd Vs Ogboh [1995] 2
NWLR (Pt 380) 647 at 669, learned counsel further submitted that an
employer has the right to hire and fire an employee at any time for good or bad
reason or for none and also that an
employer can terminate or dismiss an employee for gross misconduct bordering on
criminality without same being determined by a court of law. Learned
counsel argued that the reason for the dismissal of the Claimant was gross
misconduct, in that the Claimant tampered with a customer’s account by
withdrawing money therefrom without due authorization and further argued that
as required by the Defendant’s Sanctions Grid, the Defendant had given the
Claimant the opportunity to be heard in defence of the said allegations.
27. In his
submission, learned Claimant’s counsel conceded that both the employer and
employee have a mutual right to terminate the appointment at any time even for
no reason but further argued that the Claimant had demonstrated through his
pleadings all relevant issues and had given evidence in line with his pleadings
in relation to his claims. Learned
counsel also argued that the Defendant had no evidence in rebuttal on the
unfairness of the disciplinary committee that investigated the gross misconduct
alleged against the Claimant.
28. Now, the
current position of the law on the principle of “hiring and firing” is that, while
an employer is not obliged to give any reason for firing an employee, once the
employer gives a reason for terminating or dismissing an employee, the burden
lies with the employer (not on the employee) to justify the said reason. See George
Abomeli Vs Nigerian Railway Corporation [1995] 1 NWLR (Pt 372) 451; Angel
Shipping & Dyeing Ltd Vs Ajah [2000] 13 NWLR (Pt 685) 551 CA; Mr.
Kunle Osisanya Vs Afribank Nigeria Plc [2007] All FWLR (Pt 360) 1480 SC at
1491; [2007] 1 – 2 SC 317.
In the words of
the Apex Court in Institute of Health ABU Hospital Management Board Vs
Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC), it was held as follows:
“Although it is trite that an employer is not
obliged to give any reason for firing his servant, all the same, it is settled
law that where he has preferred any reason at all, it is obliged to
satisfactorily prove the same as the onus is on him in that regard, otherwise
the termination/dismissal may constitute a wrongful dismissal without
more”.
29. The reason
given by the Defendant for the dismissal of the Claimant is stated in Exhibit
C8. I have taken liberty to reproduce the relevant portion of the said
exhibit titled, “Letter of Dismissal” dated August 3, 2016, it states as
follows:
“An investigation into alleged gross misconduct and
abuse of office by you has shown that you abused your office by using your
position to collect the sum of N250,000.00 from teller (Popoola) without a
withdrawal instrument. You also authorized the debiting of a customer’s account
(Adeyinka Aromolaran) without proper instrument to cover for the N250,000 you
collected which amount to unethical behaviour.
Your actions therefore amount to GROSS
MISCONDUCT in line with the Bank’s sanctions grid.
Consequently, you are hereby dismissed from the
services of Keystone Bank Limited with immediate effect.” (Underlining for
emphasis).
30. By the
position of law, the onus is on the Defendant to satisfactorily prove and/or
justify the reason as stated in his letter of dismissal. The question that
presently arises, therefore now is, whether the Defendant has justified the
dismissal of the Claimant having preferred a reason for the said dismissal. The
testimony of DW1 in paragraphs 5, 6, 7, 8, 11, 12, 13, 14, 15, 16 and 17
of the Witness Statement on Oath is that the Claimant without due
authorization and in total disregard of the Bank’s policy on withdrawal of
customer’s account collected the sum of N250,000.00 from the Bank’s Teller
without ticket and authorized the debiting of the customer’s account without
proper instrument and thereby abusing his office as Resident Internal Control
Office (RICO). DW1 testified that the said customer, Adeyinka Aromolaran did
not send any text message to his Account Officer but that the Claimant
deliberately without due authorization, authorized the teller to debit the
customer’s account without proper ticket which is in violation of Bank’s Branch
Operation Policy.
31. The focus of
the Court in the determination of the issue at hand is therefore, on the above
stated reasons that amounted to gross misconduct and for the dismissal of the
Claimant. In his testimony, the Claimant categorically denied the allegations
levelled against him by the Defendant and testified that he complied with Exhibit
C3, the procedure to withdraw money from the customer’s account in the
absence of the customer but in line with the customer’s instruction and also
tendered Exhibit C12, the copy of the text message of the said
customer.
32. As correctly submitted by learned Claimant’s counsel, the Defendant
did not deny that the procedure enumerated by the Claimant in his testimony for
withdrawal of money from customer’s account is incorrect. In fact, the Defendant did not tender any
document in rebuttal of Exhibit C3 that the Claimant tendered as the procedure
for withdrawal of money on behalf of a customer. The Defendant’s defence in the
main is that, a complaint was received from a customer; that based on the
complaint, the Claimant was queried and that the Claimant was dismissed after
he was given opportunity to defend himself by the Disciplinary Committee set up
to investigate the allegations. The Claimant’s further grievance is that he was
denied the opportunity to be heard as the three principal officers of the
Defendant who purportedly confirmed the customer’s instruction and directed the
release of the money were not called to testify as witnesses.
33. While under cross-examination by the learned Claimant’s counsel, DW1,
testified as follows:
“The chain of officers
involved in transaction of withdrawal of
customer’s account starts
from the teller and authorised by Service Manager”.
Still under cross- examination, DW1 testified further:
“The outcome of the
Disciplinary Committee with regards to the teller stated that the Claimant
abused his office by enforcing the teller to consummate the transaction on
behalf of the customer. The Teller claimed that out of fear for the office of
the Claimant, he had to deal with the transaction.”
34. The further defence advanced by DW1 is that, the customer, the said
complainant, Adeyinka Aromolaran, did not send a text message to the Claimant
but the Defendant failed to call the said complainant, or Aminu Lawal, the
Service Manager or Tolulope Alao, the Service Officer or Popoola Ayotunde, the
teller as witnesses. It is on record that the Defendant did not tender the
Sanction Grid or any document to show that the punishment for the alleged gross
misconduct stated as being contravened by the Claimant earns a dismissal. It is
equally on record that the Defendant did not tender the report of its
disciplinary committee that investigated the alleged misconduct to indicate that
the reason stated for the Claimant’s dismissal was proved.
Based on the above analysis and the totality of the
unassailable evidence adduced by the Claimant, it is my finding that the Defendant has not
justified the reason for the Claimant’s dismissal for misconduct. This is fatal
to the case of the Defendant. In the circumstances therefore, the Claimant’s
dismissal is wrongful. And I so hold.
35. It is trite
that in a master and servant relationship in which the
relationship is
purely contractual, as in the instant case, once there is a purported
termination of the employment, the Court will rarely make an order that it
still subsists. This is on the principle that the Court cannot force a servant
on an unwilling master and where the termination is wrongful, the employee is
entitled to damages for wrongful termination and not reinstatement. See: Geidam
Vs NEPA [2001] 2 NWLR (Pt 696) 45; Texaco Nig Plc Vs Kehinde [2002]
All FWLR (Pt 94) 143 at 164; Osisanya
Vs Afribank Nig. Plc [2006] 1 NWLR (Pt 1031) 565 (SC) Obanye Vs
U.B.N [2018] LPELR 44702. Therefore, by virtue of Section 19 of the
National Industrial Court Act 2006 and the recent authority of Skye
Bank Plc Vs Adegun [2024] LPELR 2219, the Claimant is entitled to damages
for wrongful dismissal. And I so hold.
36. On the Claimant’s claim for Order of Court for release his
blocked/frozen account, the Defendant in paragraph 14 of its Statement of
Defence, admitted the fact that the Claimant has never had access to
his account from January 2016, when he was suspended until he was dismissed
from his employment. It is a settled position of law with statutory
backing and a legion of decided authorities that what is admitted needs no
further proof. See Section 123 of the Evidence Act 2011; Akinlagun
Vs Oshoboja [2006] 12 NWLR (Pt 993) 60; [2006] 5 SC (Pt 11) 100; Ojukwu
Vs Onwudiwe & Ors [1984] 2 SC 15 at 38. Having regard therefore, to
the Defendant’s unequivocal admission, I must state that the Claimant is
entitled to the claim. And I so hold.
37. The Claimant
also claims for the sum of Five Million Naira (N5,000,000.00) as general
damages for defamation of character. The question now is, has the Claimant proved
by credible and positive evidence his claim for defamation? Under the law, in an action for defamation or libel,
the onus is on the Claimant to prove the following:
(a)
That the Defendant published in a permanent form a statement; (b) That the
statement referred to the Claimant; (c) That the statement conveys defamatory
meaning to those to whom it was published; and (d) That the statement was
defamatory of the Claimant in the sense that: (i) it lowered him in the
estimation of right-thinking members of the society; or (ii) it exposed him to
hatred, ridicule or contempt; or (iii) it injured his financial credit.
38. In other
words, for an imputation to be defamatory, it must not only be pleaded but must
be proved to have been to the discredit of the Claimant. See Sketch Vs
Ajagbemokeferi [1989] 1 NWLR (Pt100) 678 683; NEPA Vs Inameti [2002]
11 NWLR (Pt 778) 397 at 421- 422. It is also settled that every fact
pleaded must be proved by evidence and where a fact pleaded is not covered by
the evidence produced in the case, that pleaded fact is deemed abandoned and
discountenanced. It is certain therefore, that since the Claimant did not call
evidence on the issue of defamation, it is deemed abandoned. And I so hold.
39. On the whole, I resolve the sole issue as set out against the
Defendant and hold that the Claimant has established that the dismissal of his
appointment by the Defendant is wrongful.
In the overall analysis, the Court adjudges the claims of the Claimant
as meritorious in part. For avoidance of doubts and abundance of clarity,
judgment is hereby entered in favor of the Claimant in part, against the
Defendant upon the terms set out as follows:
1.
It is hereby declared that the dismissal of the Claimant’s
employment on 03rd
August, 2016 by the Defendant is wrongful.
2.
It is hereby further declared that the letter of dismissal dated 03rd
August, 2016 is invalid and it is hereby set aside.
3.
The Defendant is hereby ordered to unfreeze the Claimant’s salary
Account Number 1160047972, and to pay the Claimant the sum in the said account.
4.
The Defendant is hereby further
ordered to pay to the Claimant sum of N20,000,000.00 (Twenty Million Naira) as
general damages.
5.
Cost of N500,000.00 (Five Hundred Thousand Naira) is awarded in favor of
the Claimant
6.
It is hereby further ordered that the Defendant shall pay the sum set
out in (3), (4) and (5) above to the Claimant, within thirty (30) days.
7.
10%
interest is awarded on the judgement sum from the date of set in (xi) above
till final liquidation.
SINMISOLA O. ADENIYI
(Hon. Judge)
11/09/2024
Legal representation:
A. A. Manta Esq.
for Claimant
Godwin Udondiah Esq. with N. N. Bin Esq. for Defendant