IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALBAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 31ST JANUARY, 2019 SUIT NO: NICN/CA/53/2016
MRS ENO SAMUEL UDOWO …… CLAIMANT
UNION BANK OF NIGERIA PLC … DEFENDANT
ITA A. ITA Esq with D.E OKON Esq, C.E ITA Esq and R.O OGAR Esq for the Claimant
NSIKAK IKPEME Esq withUBANG UDOEMA Esq for the Defendant
This suit was instituted by the Claimant vide a General Form of Complaint filed 15th November, 2016. Claimant later amended his process vide the Amended Statement of Facts dated 8th May, 2017 and filed same day.
The reliefs sought by the Claimant are:
1. A DECLARATION that the indefinite suspension of the Claimant’s employment by the Defendant is unlawful and therefore null and void
2. A DECLARATION that the indefinite suspension of the Claimant’s employment by the Defendant as contained in her letter dated 24/12/2012 without payment of half salary as provided for in the procedural and main collective agreement amounts to a breach of Claimant’s contract of employment with the Defendant.
3. A DECLARATION that the forceful and unlawful extortion of N300,000 from the Claimant by the Defendant under the pretext of recovering or repaying some of the money in respect of the fraud allegedly committed by the Claimant is unlawful and unconstitutional therefore null and void.
4. AN ORDER compelling the Defendant to immediately refund the N300,000 forceful and unlawful collected from the Claimant by the Defendant under the pretext of recovering or repaying some of the money in respect of the fraud allegedly committed by the Claimant.
5. AN ORDER setting aside the suspension of the Claimant by the Defendant and converting the suspension to retirement.
6. AN ORDER compelling the Defendant to immediately pay the Claimant all her retirement benefits including rights, privileges, pension and gratuity that the Claimant would have been entitled to from the date of her suspension i.e from December, 2012 to year 2021 when the Claimant’s employment with the Defendant would have ended ordinarily.
7. The sum of N50,000,000.00(Fifty Million Naira)only for breach of contract of the Claimant’s employment.
8. The sum of N20,478,617.93 being special damages
PARTICULARS OF SPECIAL DAMAGES
Terminal Benefit, Computation using salary, transport, housing and utility.
Salary - N704,943
Transport - N377,000.00
Housing - N688,000.00
Utility - N88,710.00
N1,858,653 (x26 years in service)
Gratuity - N4,832,497.80
Pension - N7,500.000.00
Arrears of 50% basic salary, transport, housing and utility from December, 2012 to the month of filing this action, November, 2016 - N5146,120.13
Cost of litigation of this suit - N3,000.000.00
Grand Total - N20,478,617.93
9. The sum of N200,000,000.00 as general damages claimed against the Defendant for unlawful termination of the Claimant’s employment, emotional trauma, embarrassment, stress and untold hardship suffered by the Claimant and her family.
SUMMARY OF FACTS
The Claimant, as can be gleaned from her statement of facts, was employed by the Defendant on 29th September, 1986. She rose to be the branch manager of the Defendant Union Bank at Abak, Cross River State. Sometime in December, 2012, a petition by unidentified person was forwarded to the Defendant’ Headquarters alleging fraudulent activities in the branch. Three members of staff including the Claimant were investigated. Claimant was subsequently placed on suspension vide the letter dated 24th December, 2012 the year marking the 26th year of the Claimant in Defendant’s employment. That she was entitled to half of her salary the period of suspension but she was never paid. Moreso, from the date of suspension till date, no decision has been communicated to her. Furthermore, as at when the Defendant invited her to her Headquarters, she was embarrassed and intimidated into paying the sum of N300,000.00 to Defendant as part of the refund of the alleged financial fraud. Claimant is by this suit challenging her unlawful suspension as well as asking for other monetary award she believes she is entitled to.
On their part, the Defendant, as can be gleaned from their statement of defence, stated that Claimant was recommended for prosecution not because she was the branch manger during the time the financial fraud was committed but because of the knowledge she had and the role she played in the fraudulent diversion and embezzlement of commissions on salaries processed at the Abak Branch of the bank. That she was queried and she owned up to complicity in the fraud. That while on suspension, if Claimant stuck to the condition of signing the attendance registry every working day, she would have been paid her half salary during the suspension but she never did. That while the investigation into the diversion of salary commissions was ongoing, the investigating team also discovered other financial fraud perpetuated by the Claimant which includes: personal lending to the Defendant’s customers using her spouse’s account under the name Samalex Nig. which by extension conflicts with the interest of the bank; she was also found to be involved in transfers totaling N11.85M from the account of a customer, one Iyaobu I. Orubima with account No: 0010559845 to four other accounts where the funds were swiftly withdrawn. That eventually, the Defendant was dismissed with effect from June 10, 2013 vide a letter dated 7/06/13 which the Claimant refused to pick up despite repeated invitation to her to come pick it up. Defendant therefore urged the Court to dismiss this suit.
On receipt of Defendant’s Statement of Defence, Claimant filed a Reply dated 22nd May, 2017 and filed same day.
COMMENCEMENT OF HEARING
Hearing in this suit commenced on 21st June, 2017 to which the Claimant himself testified as CW1. He adopted his witness statement on oath, tendered documents as exhibits and he was cross examined accordingly. Thereafter, Claimant closed her case 31st October, 2017.
On their part, Defendant opened their defence on 22nd February, 2018 by calling one Adewale Atanda as DW1 who adopted his written Witness Statement on Oath and testified accordingly. He tendered documents as exhibit and he was cross examined. Defendant closed their case on 17th April, 2018.
Thereafter, parties filed, exchanged and adopted their final written addresses.
DEFENDANT’S FINAL WRITTEN ADDRESS
In Defendants’ final written address dated and filed 10th May, 2018, Learned Counsel on behalf of Defendant formulated three (3) issues for determination, that is:
1. Whether in a claim for a declarative relief, the Claimant would not succeed solely based on the extent to which she is able to prove her case
2. Whether a party who is in breach of a contract can still turn around and benefit from same
3. Whether the special damages as constituted in this suit has been specifically proved
ON ISSUE 1: Whether in a claim for a declarative relief, the Claimant would not succeed solely based on the extent to which she is able to prove her case
Learned Counsel submitted that a party seeking a declaratory relief from a court of law must succeed by the strength of her evidence and not on the weakness of the defence. This duty on the Claimant is so strong and elastic that even if the Defendant files no defence, the onus will still be on the Claimant. He relied on FALEYE V. DADA (2018) 7 WRN 32.
That in the present case, the Claimant is alleging that she was unlawfully dismissed from the employ of the Defendant, but she has not been able to prove vide credible evidence that her dismissal (which she also calls termination) was unlawful.
Learned Counsel therefore urged the Court to resolve issue 1 in favour of the Defendant and hold that the Claimant's case cannot succeed as she is not able to prove the same.
ON ISSUE 2: Whether a party who is in breach of a contract can still turn around and benefit from same
Learned Counsel submitted that a party who is in breach of a contract cannot be allowed to derive benefit from that same contract.The Claimant was employed by the Defendant to come and work for the good of the Defendant. That duty to work for the good of the Defendant was to last as long as the Claimant was in the Defendant's employment. But in the present case, it was not so. At one point the Claimant worked commendably and at another point she worked condemnably. In the weeks that led to the dismissal of the Claimant, she overcharged commission on salaries of customers' accounts and embezzled same, ran a private bank within the Defendant bank using her husband's company - SAMLEX NIG and colluded with other staff to siphon N11.85M from the account of a customer -lyaobu I. Orubima (A/c No. 0010559845). That in all of these, Claimant disobeyed the Defendant by not signing the attendance register the period she was on suspension.In NWOBOSI v. ACB LTD (1995) 6 NWLR (Pt 404) 658, the Supreme Court held (Per Umaru Onu, JSC) that:
Willful disobedience to the lawful and reasonable order of the master justifies summary dismissal. Misconduct inconsistent with the due and faithful discharge by the servant of the duties for which he was engaged is good cause for his dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.
The principle of law is well settled that willful disobedience of a lawful and reasonable order of an employer by an employee is a definite act of misconduct which at common law, attracts the penalty of a summary dismissal since such willful disobedience of a lawful order is a reflection of a total disregard of an essential condition of a contract of service, namely that the servant must obey a proper, reasonable and lawful order of the master in default of which their contractual relationship cannot be expected to continue.
Therefore, the unjustifiable refusal to obey a reasonable order is a breach of duty and can make the employer treat the contract as repudiated.In the English case of MAJA v. STOCCO (1972) 2 QB 455, it was held that a servant whose conduct is incompatible with the faithful discharge of his duty to his master may be dismissed as for instance, if unknown to his employer, his personal interests conflict with his duty as a servant in his particular capacity.
Learned Counsel therefore urged the Court to hold that the Claimant cannot benefit from the contract which she has grossly breached, and as such, her dismissal/termination on the ground of such breach is lawful.
ON ISSUE 3: Whether the special damages as constituted in this suit has been specifically proved
Learned Counsel submitted that specific damages must be specifically pleaded item by item and each item duly and specifically proved in order to succeed in the award of such item. He relied on IBRAHIM V. OBAJE (2018) 11 WRN 1 at 30 lines 20-35; ADEKLLE V. ROCK VIEW HOTEL LTD (2004) 1 NWLR (Pt853) 161 at 174;ADEDO V. ISMAILA (1969) NCLR 253 andSEVEN-UP BOTTLING CO. LTD v. ADEWALE (2004) 4 NWLR (Pt 862)16.
It is the submission of Learned Counsel that failure to prove the special damages item by item would fatally affect the claim of the Claimant.
He therefore urged the Court to find and hold that the special damages claimed by the Claimant herein has not been credibly proven by the Claimant.
CLAIMANT’S FINAL WRITTEN ADDRESS
In Claimant’s final written address dated and filed 8th June, 2018, Counsel on behalf of Claimant formulated two (2) issues for determination, that is:
1. Whether from the facts and circumstances of this case, whether the suspension and the subsequent dismissal of the Claimant from her employment by the Defendant without following due process is not unlawful, illegal and a gross violation of the principles of fair hearing
2. Whether in the circumstances of this case, the Claimant is not entitled to her claim and be awarded damages against the Defendant.
ON ISSUE 1:Whether from the facts and circumstances of this case, whether the suspension and the subsequent dismissal of the Claimant from her employment by the Defendant without following due process is not unlawful, illegal and a gross violation of the principles of fair hearing
Learned Counsel submitted that a careful perusal of the facts and circumstances of this case will leave no one in doubt that the suspension and the subsequent dismissal of the Claimant from her employment by the Defendant isunlawful, illegal and a gross violation of the provisions of the terms and conditions ofemployment of the Claimant, Exhibit C 9, the provisions of our labour law and the principles of fair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
That the Defendant did not follow due process and the laid downprocedure in the suspension and the subsequent dismissal of the Claimant from her employment with them thereby denying the Claimant the mandatory right to fair hearing in the circumstances. The Defendant suspended the employment of the Claimant via a letter dated 24/12/2012( Exhibit C7) on the grounds of a false and unproven allegation of involvement in fraudulent activities currently amounting to N3,567,169.62 without any written query, written warning and the payment of (half) 1/2 of the Claimant's basic salary as required by law. By virtue of Article 4 (iii) (b) of Exhibit C9, the Claimant's terms and conditions of employment with the Defendant, which states thus: During the period of suspension, the Employee shall, provided he complies fully with conditions stipulated in (c) below, be paid half of his basic salary and full transport, housing and utility allowances and he shall be entitled to usual medical treatment. If after investigations he is exonerated, he shall be recalled and the balance of his basic salary and any other entitlements due to him shall be made good to him from the date of suspension. If, however, the Employee is found guilty he shall be dealt with in accordance with the appropriate section of the Disciplinary Procedure, theDefendant is required to comply with the following conditions precedent before the suspension of the Claimant can be lawful and valid.
1. Give the Claimant a written query and the opportunity to state her case or defend herself in writing but the defendant failed to comply with this mandatory provision of the law - Article 4 (iv) (c)
2. Give the Claimant a written warning but the defendant failed to comply with this requirement - Article 4 (iv) (c)
3. Pay the Claimant (half) 1/2 of her basic salary during the subsistence of her suspension i.e from December 2012 to June 2013,seven(7) months half salary as the Claimant had been reporting daily in the Defendant's office until the Defendant stopped her from entering the office in March, 2013 but the Defendant did not comply with same rather they forcefully and fraudulently extorted the sum of N500,000.00 (Five Hundred Thousand Naira) only from the Claimant’s account on the 19/12/2012 without her consent - paragraphs 9 and 10 of theClaimant's Reply to the Statement of Defence and her Written Statement on oath filed on the 22/5/2017 and Exhibit C 12
Learned Counsel submitted further that the said allegation of involvement in fraudulent activities leveled against the Claimant was false and unproven as there were both credible oral and documentary evidence exonerating the Claimant from the said allegations and implicating the Head of branch operation then Mr. Gabriel Essien Effiong and his cohorts (the Claimant not included) as the perpetrators of the alleged fraud and that he was the one directly involved in the commission of the alleged fraud as the person directly in charge and in control of cash lodgment, cash withdrawals and cash transfer operations in the said bank as the Claimant's duty as the branch manager was strictly administrative and had nothing to do with operational duties like cash lodgments, cash withdrawals and cash transfers which was strictly and directly the duty of the HBO.
That the Claimant was never charged, tried or found guilty for the commission of the said offence before any Court of competent jurisdiction. He relied on Okeme V. Civil Service Commission Edo State (2000) 14 NWLR Pt. 688 Pg. 480 at 484 particularly held 4 where it washeld that thus:
By virtue of Section 33(1), (4) & (13) of the 1979 Constitution only a court of law or a judicial tribunal is competent to hear and determine a criminal charge against any individual. In other words, an administrative tribunal is incapable of entertaining criminal trials. In the instant case, what took place during the investigation conducted by the secretary was not a trial of the appellant for the offence of fraud.
That notwithstanding the above facts and the fact that by virtue of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 as amended which presumes everyone is innocent until the contrary is proven, the Defendant proceeded to dismiss the Claimant on the false and unproven grounds of misconduct in a letter dated the 7/6/2013. By virtue of Article 4 (iv) (c) of Exhibit C9, the procedural/main collective Agreement (the terms and conditions of the Claimant's employment with the Defendant) which states that before either summary dismissal or warning letter is effected, the Employee shall be given a written query and afforded the opportunity of defending himself in writing except where the Employee has absconded,theDefendant is mandated to comply or follow the following laid down procedure before the said dismissal can be lawful and valid:
1 To give the Claimant a written query and the opportunity to state her case or defend herself in writing
2 To give the Claimant a written warning
3 To pay the Claimant (half) 1/2 of her basic salary from the time of her suspension until the day her employment is eventually terminated i.e from December, 2012 toJune 2013.
4 Find the Claimant guilty of misconduct 3 (three) times within 12 (twelve) months before proceeding to dismiss her as the Claimant had been reporting daily in the defendant's office until the defendant stopped her from entering the office in March, 2013
It is the submission of Learned Counsel that since the Defendant has failed, omitted, neglected or refused to follow or comply with the mandatory requirements of the law with regards to the suspension and the subsequent dismissal of the Claimantfrom her employment,the subsequent dismissal of the Claimant by the Defendant is unlawful, illegal and a gross violation of the terms and conditions employment of theClaimant with the Defendant, the provisions of our labour law and the principles offair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
ON ISSUE 2:Whether in the circumstances of this case, the Claimant is not entitled to her claim and be awarded damages against the Defendant.
Learned Counsel submitted that it is settled law that whenever a Claimant suffers some losses or damages as a result of the unlawful or wrongful acts of the defendant as in the instant case, he is entitled to be awarded damages against the defendant as compensation for the wrong done to the Claimant. He relied onA.G. Bendel V. Aideyan (1986) 2 NWLR Pt. 21 Pg. 175 at 180. That once a party has led and adduced credible evidence to show and establish the fact that he has suffered some losses and damages as a result of the unlawful or wrongful acts of the defendant as in the instant case, he is entitled to be awarded damages against the Defendant. He relied on Gege v. Nande (2006) 10 NWLR Pt. 988 Pg. 256 at 266;Ekeagwu v. Nigerian Army (2010) 16 NWLR Pt. 1220 Pg. 419 at 421 - 422 where it was:
In an action for wrongful termination or dismissal or retirement, only two primary issues call for determination. These are:
(a) Whether the termination, dismissal or retirement of the plaintiff is wrongful,
(b) What is the measure of damages recoverable where the termination, dismissal or retirement is found to be wrongful?
Where a plaintiff seeks the relief of reinstatement which is granted, the issue of measure of damages for wrongful termination, dismissal or retirement becomes irrelevant because upon reinstatement the Plaintiff is entitled to be paid all his arrears of salary and emoluments including fringe benefits up to the time of reinstatement and thereafter as and when due and payable.
It is the submission of Learned Counsel to the Claimant that from facts and evidence adduced in his case, Claimant is entitled to special and general damages for breach of her contract by the Defendant. He relied onNzeribe V. Dave Engineering Co. Ltd (1994) 8 NWLR Pt. 361 Pg. 124 at 127
He therefore urged the Court to discountenance all the arguments of the Defendant for being irrelevant, frivolous and vexatious and consequentlyenter judgment in favour of the Claimant and grant all the reliefs sought by the Claimant in this suit.
DEFENDANT’S REPLY ON POINT OF LAW
On receipt of Claimant’s final written address, Defendant filed a rejoinder on point of law on the 25th June, 2018 to which the Defendant replied to the submissions of Counsel to Claimant on point of law as well as adumbratedfurther on their earlier submissions in their final written address.
Having gone through the Claimant’s case, Defendants’ defence, evidence adduced at trial and the final written submissions of Counsel to the Claimant as well as Counsel to Defendants, this Court hereby distils a sole issue for determination, to wit:
Whether the Claimant has proved his case to be entitled to the reliefs sought.
With regards to burden of proof in civil cases, the Court held in University of Ilorin V. Rasheedat Adesina (2010) 9NWLR (Pt.1199) p.331 @348 – 349 as follows:
By virtue of Section 137 (1) and (2) of the Evidence Act, the burden of first proving the existence or non existence of a fact in civil cases lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and on successively , until the issue in the pleading has been dealt with. In the instant case, the burden lay squarely on the Respondent to prove the allegations made in her pleadings because she was the one who asserted facts she sought to prove. And after the adduced evidence in support of her pleadings, the burden shifted to the Appellant to prove the contrary.
The implication of the foregoing is that whereas the standard of proof remains static, that is, preponderance of evidence, burden of proof is like a pendulum which swings both ways, that is, it swings the way of the Claimant and the way of the Defendant. What this means is that once the Claimant has discharged his burden on proving the facts alleged, the burden of proving the contrary will shift to the Defendant to prove the facts alleged in his denial of the claim of the Claimant.
With regards to the suspension of the Claimant without pay, Article 4(iii) (b) of The Main Collective Agreement tendered in evidence and marked as Exhibit C9 provides for half salary during the period of suspension. Same Article 4 @(iii) (d) provides that unless where it is obviously impracticable, an employee shall be required to report each working day (morning or afternoon) for 2 hours to an official designated by the employers, and shall sign for such attendance. From the foregoing, it is settled that the Claimant is entitled to half his salary for the period of suspension. On the part of the Defendant, they claim that the Claimant did not comply with signing the attendance register hence she cannot be paid her half salary.The Claimant on the other hand states that she did signthe attendance register until sometime in March, 2013 when a fresh allegation came up and she was stopped by the branch manager from accessing the office of the Defendant to enable her sign the attendance register. See paragraph 4 of the Claimant Reply to Defendant’s Statement of Defence. I must say that even the article itself makes room for such circumstances that is why it employs the use of the word unless where it is obviously impracticable ….. The implication is that certain circumstances may make the signing of the register impracticable during the period of suspension. As such, the Defendant cannot rely on the Claimant not signing the attendance register as a basis not to pay her the half salary she is entitled to during the period of suspension, and I so hold. As a matter of fact, the Defendant ought not to make a big deal out of a suspended employee not signing the register except they have reason to suspect that the suspended employee has picked up a job elsewhere during the period of suspension.
While proceeding, it is apposite for the Court to caution here and now that nobody should see the Court as a place where the law can be abridged or abrogated to favour litigants. The Court is a place where the law is applied and enforced and it is immaterial whether you are the first or the last to run to the Court. The Court does not provide any succour or comfort to a criminal merely because the criminal is the first to run to Court. If only the criminal/offender knew, he would prefer to make peace with whom he has offended rather than exposing himself in a place which has no peace and succour for criminals and offenders.
With regards to the investigation of the Claimant by the Defendant, the Court cannot interfere with the investigation of the Claimant on the alleged financial fraud as the power to investigate is vested on her. However, if the mode of the investigation as well as the duration of the suspension of the Claimant for the purpose of the investigation offends the laid down rules, the Court can interfere to check the Defendant and take the appropriate measure to whip back the Defendant in line not only for the purpose of the instant case but for the purpose of future case. The period of suspension provided by the rules is 6 months. I have said it before and I will say it again – no employer, under the guise of investigation, should suspend any employee for a period longer than necessary. When this happens, the Claimant is entitled to damages on constructive termination of employment or constructive dismissal. This is so because you cannot keep anybody in a state of limbo for such a long time to the point that he doesn’t know where he stands in your employment – he doesn’t know if he is in or out and you are not helping by not telling him whether he stands in or out. Secondly, no employer, under the guise of suspension during investigation, should mete out punishment that looks like the employee is already punished for a crime that the employer is yet to conclude investigation on. If the rules provide for 6 months, then within the six months investigation ought to have been concluded and a decision reached and communicated to the Claimant so that the Claimant would know her fate. Moreso, the settled law is that a person on suspension is entitled to half his salary during the period of suspension pending the conclusion of the investigation on the alleged offence. As such, the Claimant herein is entitled to half her salary for the period of suspension, and I so hold.
On the submission of the Claimant that the allegations against her are criminal in nature therefore the Defendant lacks the power to investigate or discipline until found guilty by a Court of law, this Court wishes to state that that is stretching the settled law beyond its boundary. The settled law is that in master-servant employment, the employer has a right to investigate and discipline misconduct arising from the work place, which by misconduct, may contain criminal elements. See Samson Olarewaju V. Afribank (Nig) Plc (2001) 13NWLR (Pt.731) 691 where the Court held:
In a pure case of master and servant, a servant's appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly, a servant in this class of employment can lawfully be dismissed without observing the principles of natural justice. So, the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at the trial prove breach of contract.
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 the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. Where employee has been found guilty by a disciplinary committee to have committed a gross misconduct bordering on criminality, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily. In other words, prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal.
(Underlining mine for emphasis)
In the instance case, if from 2012 till date, no decision on the outcome of the investigation was communicated to the Claimant, then all the Court can presume is that the Claimant’s employment has been constructively terminated by the Defendant. In this regard, the Court cannot grant any futuristic claim of retirement which is to take place in 2021 when we are still in 2019, and I so hold. As such, reliefs 5 and 6 of the Claimant which seek order of Court to covert her suspension to retirement and compel the Defendant to pay her all benefits, rights, privileges, gratuity etc she is entitled up till 2021 are bound to fail. Depending on the findings of the Court, the Claimant can be entitled to her terminal benefit as at the time of this judgment and not on a futuristic date. Based on the nature of this case which is master-servant, the Court cannot undo what is done by the master but it can make the master pay for his sins by way of monetary compensation to the Claimant which is damages. See Imoloame v. WAEC (1992)9NWLR (pt. 265) 303.
From the nature of the allegation against the Claimant by the Defendant, I must say that the Claimant as Business Development manager of the Defendant owes the Defendant a duty of care to make sure that she herself is not tempted to defraud the Defendant nor allow any staff under her to defraud the bank in any manner whatsoever. Therefore, she should not expect a pat on the shoulder when Defendant is losing millions of Naira, whether or not she colluded in such fraud. Generally, when a thing is shown to be under the management of a person or his servants and an accident is such that does not occur in the ordinary course of events if the persons who are in management exercised proper care or diligence, then in the absence of any acceptable explanation by those in management as to how the accident happened, the accident is presumed to occur due to lack of care. Thus, negligence is presumed in such cases because in such cases, negligence is inferred to have resulted from the want of care by the persons in the management. See P.S.H.S.M.B. V. GOSHWE (2013) 2 NWLR (Pt. 1338)Pg387.
From the totality of the evidence adduced in this case, this Court is convinced that financial fraud of high magnitude actually took place in the Union Bank branch at Abak the period the Claimant was there as a Business Development Manager and the period she was on suspension. In all of this, the role played by the Claimant is obvious both in her response in Exhibit C11 and Exhibit D6. Whereas in the fraud where N11.85M was fraudulently transferred to four different accounts, the Claimant states that she was then on suspension, it is also glaring that she admitted that the fraudster/impersonator called her on the phone and she elected to start making calls to Ms Grace Effiom to, according to her, informed her somebody (a customer) called her that he wanted to effect a transfer on UIP platform and Ms Grace Effiom informed her that the UIP platform was down. For all it is worth, it beats my imagination why the Claimant would feel that Ms Grace Effiom would still receive instruction from her when she was on suspension except perhaps, the said Ms Grace owed her a favour whether or not she was on suspension. Secondly, I wonder why she had to make that call when knowing full well she was on suspension and she had earlier informed the so-called customer she was no longer the BDM. She ought not to have taken further steps beyond that.
On the part of the Defendant, they did not help matters as well. If at any time they did dismiss the Claimant, did they have to wait for the Claimant to come pick up the letter? Or to have the letter sent or mailed to her? As far as this Court is concerned, evidence abound that there was financial fraud of a monumental propensity; evidence abound of the Claimant’s complicity in some of the fraudulent transactions; evidence abound that the Claimant was put on suspension. However, the evidence of dismissal only exists in the realm of the Defendant, and I so hold. This Court as a Court of justice is constrained to hold that from the evidence adduced in this case, Claimant was never aware of a letter of dismissal until the sudden appearance of same during the pendency of this suit. In this regard, Exhibit D4 which is the purported letter of dismissal cannot be sustained by this Court, and I so hold. In this vein, as well as given the fact that the suspension lasted longer than it should, this Court finds that in the absence of any letter expressly terminating the employment of the Claimant, it can however be implied that the employment of the Claimant has been terminated under the principle of constructive termination of appointment.
Flowing from the foregoing, this Court finds and I so hold that the Claimant is entitled to half salary from the day she was suspended till date. Furthermore, having earlier held that the circumstances of the Claimant is akin to constructive termination of employment, this Court hereby holds that Claimant is entitled to her terminal benefits which calculation should take into consideration the year she was employed to the year of this judgment, that is 2019.
While taking note of the fact that the Court has earlier held that it cannot grant any futuristic award of 2021 as claimed by the Claimant, incidentally, the terminal benefits as awarded above cannot be based on the figure and the basis of calculation used by the Claimant as the Claimant did not lead evidence on how she arrived at that calculation. Granted, she tendered her payslip as evidence of her salary before this Honourable Court but she failed to lay a foundation on how she calculated and concluded that her terminal benefit is calculated by multiplying her salary by the number of years in service. In this regard, it will be safer for both the Claimant and Defendant to calculate same and Defendant to pay the Claimant accordingly.
From all that have been said above, the claim of the Claimant succeeds as follows:
CLAIM 1 Succeeds only to the extent that the indefinite suspension of the Claimant’s employment by the Defendant is unlawful
CLAIM 2 Succeeds
CLAIM 3 Fails for from the evidence adduced before this Honourable, there is nothing to show that the money refunded by the Claimant to the Defendant was forceful as alleged by the Claimant
CLAIM 4 Fails based on the failure of Claim 3 above
CLAIM 5 Fails to the extent that the Court considers the long suspension to be termination by implication hence it cannot covert same to retirement.
CLAIM 6 Succeeds only to the extent that Claimant is entitled to terminal benefits to which the calculation will take into consideration the year 1986 when she was employed and the year 2019 which is the year of judgment
CLAIM 7 Fails for given the nature of this case, this Court is not moved to grant any sum under this head
CLAIM 8 Succeeds only to the extent that whatever terminal benefits the Claimant is entitled from 1986 to 2019 as earlier held by the Court shall be calculated by both Claimant and Defendant and Defendant shall pay the Claimant accordingly.
CLAIM 9 Fails for given the circumstances of this case, this Court is not minded to grant any sum under this head
For the avoidance of doubt, the Declarations/Orders of the Court are as follows:
THE COURT HEREBY DECLARES that the indefinite suspension of the Claimant’s employment by the Defendant is unlawful
THE COURT HEREBY DECLARES that the indefinite suspension of the Claimant’s employment by the Defendant as contained in her letter dated 24/12/2012 without payment of half salary as provided for in the procedural and main collective agreement amounts to a breach of Claimant’s contract of employment with the Defendant.
THE COURT HEREBY MAKES AN ORDER compelling the Defendant to immediately pay the Claimant all her terminal benefits to which the calculation will take into consideration the year 1986 when she was employed and the year 2019 which is the year of judgment, provided such calculations shall be made by the Defendant with the Claimant represented by her Counsel or by herself.
Judgment is hereby entered accordingly.
HON. JUSTICE M.N. ESOWE