IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP, HON.JUSTICE R.B.HAASTRUP
DATE: OCTOBER 30, 2018 SUIT NO.NICN/ABJ/268/2014
Madaki Baba Mohamed………………………………Claimant
Union Homes Savings and Loans Plc…………….Defendant/Counter claimant
Abdullahi Liman with Nasiru Usman Agahu for claimant
Okorie Michael Okorie for defendant/counter claimant
The claimant filed his complaint against the defendants, which is dated and filed 29th September, 2014. The claimant’s compliant is accompanied with the claimant’s originating processes, filed in accordance with the provisions of the rules of this court. The claimant claims against the defendant as follows:
A.) A declaration by the Honourable Court that the dismissal by the defendants of the claimant from their employment is unlawful and that the claimant is liable to be reinstated and paid his salary up till date and other emoluments attendant upon his reinstatement as to continue in service.
B.) An order in the alternative committing to termination and that the claimant be paid his full terminal benefits upon the said termination calculated to N3, 880, 629.93 plus housing, education, furniture and accommodation allowances to be calculated and paid up to the claimant.
C.) An order that the defendants pay to the claimant compensation due for the permanent partial disability suffered by him in the service of the defendants’ employment aforesaid.
D.) An order that the defendants pay to the claimant the sum of N10, 000, 000.00 (Ten Million Naira) only as general damages for unnecessary hardship, inconveniences and embarrassment brought upon the claimant and his family as a result of the conduct of the defendants aforesaid.
E.) That the defendants bear the cost of this action.
The 2nd defendant in this suit, Union Bank of Nigeria Plc, was struck out from this suit; the court having granted the application of 2nd defendant for the mis-joinder of the 2nd defendant in the suit, which was vide court order dated 22nd January, 2018. By an order of court dated 28th June, 2018, the defendant was allowed to re-open its case and allow defence witness to adopt written statement on oath, defendant having regularized its processes to bring the evidence of witness in conformity with the regularized processes, and the defendant’s statement of defence/counter claim and other originating processes were deemed properly filed and served. The claimant’s processes, to wit; joint reply to statement of defence and defence to counter claim and additional statement on oath were all deemed as having been properly filed and served.
The defendant, Union Homes Savings and Loans Plc, now the only defendant in this suit, filed statement of defence and counter claim on 28th January, 2015, which was filed along with other originating processes of the defendant. The claimant filed reply to statement of defence to counter claim dated March 13, 2017, but filed April 21, 2017. The matter however came up for trial on 15th June, 2017, when the claimant testified on his behalf as CW, and adopted his written depositions on oath, respectively dated 29/09/13 and 21/04/17. The witness (CW) tendered documents admitted in evidence and marked as Exhibits CW.MM1 – CW.MM26 A, B &C, while the Auditor’s report and statement of account of the claimant were tendered but marked rejected. The defendant witness on its part Mr.Nura Bello, testified on behalf of the defendant as DW, and adopted written statement on oath, dated 28th January, 2015. The witness tendered 18 documents in evidence, which were admitted and marked as Exhibits DW.NB1 – DW.NB18. The claimant closed his case on 2nd November, 2017 after being cross examined by defendants’ counsel. Defendant on its part opened its case for defence on 22nd January, 2018, and concluded evidence on 13th March, 2018 after the cross examination of DW. The Final Written Addresses of the parties were adopted on 28th June, 2018.
The claimant averred in his statement of facts that he was employed by the defendant on 24th March, 1997 in Lagos, and rose through the ranks, until his final promotion to the substantive Branch Service Manager of the Garki Branch of the defendant on 28th December, 2011. It is his averment that he served the defendant for over 16 years and entitled to payment of pension benefits, but defendant has refused to pay the claimant in breach of the contract of employment. That the defendant dismissed him from service on 24th December, 2012 for gross misconduct, and his pleas to the defendant to commute his dismissal to termination have yielded no results. He further averred that it was in the course of his employment with the defendant, that he was involved in a ghastly car crash, along Suleja, Niger State to the defendant’s Garki Branch, which resulted in his permanent incapacitation, and the defendant has refused to pay him appropriate compensation in clear breach of their contractual relationship.
It is the averment of the defendant that the claimant was its former employee, and employed in Lagos vide letter dated 24/03/1997. That the claimant was later appointed as Branch Manager of the defendant Garki Branch on December 23, 2001, and was dismissed from defendant’s employment on 24 December, 2012 for gross misconduct. It is further averred that the claimant was paid fully his transfer benefits, including housing allowance upon his transfer from Lagos. That the claiamnt was involved in various banking sharp practices ranging from unlawful and unauthorized cash withdrawal from a customer’s account, to suppression of cheques paid into his staff account, to granting of unauthorized overdraft facilities to customers; this led to the dismissal of the claimant upon confirmation of audit findings by the defendant senior staff disciplinary committee. That the claimant admitted the audit findings and appealed for his dismissal to be commuted to termination of appointment, which was not accepted by the defendant and it, was consequent upon this that the claimant proceeded to court and filed this suit against the defendant.
SUBMISSIONS OF DEFENDANT
The final written address is dated and filed 21st day of May, 2018, with the following three (3) issues for determination:
1. Whether the claimant’s actions warranted a dismissal under the defendant’s staff general circular on gross misconduct?
2. Whether the claimant has proved the claims sought in this suit?
3. Whether the defendant is entitled to the reliefs sought in the counter claim.
The defendant counsel submitted that the dismissal of the claimant was not wrongful, and that in a master servant relationship, as applicable in the instant case, the employer has the right to terminate or dismiss the employee with or without any reason given, citing Agbarakwe vs. University Press Plc (2015) WRN 67 CA Pg.89, Lines 5-4. Counsel referred the court to Exhibits CWMM5, DWNB13, CWMM19 and CWMM22, and submitted that the claimant exploited his position as Branch Manager in breach of terms of his employment and defendant’s banking policy, which led to the summary dismissal of the claimant on grounds of gross misconduct. Counsel relied on the definition of gross misconduct by the Court in the case of Nwobosi vs. African Continental Bank Ltd (1995) 6 NWLR (Pt.404) Pg.658.
Exhibits CWMM11 and DWNB2, is the staff general circular on gross misconduct, and the granting of unauthorized overdrafts as in this case, attracts sanction of termination or dismissal. The claimant in this case has been served with several queries and even reprimanded for unauthorized cash withdrawals from customer’s account, which was discovered by the defendant after an audit was conducted. The claimant however, continued in his acts of gross misconduct, and in further abuse of his position and in breach of terms and conditions of his employment and contrary also to the Banking Policy. Such acts of gross misconduct committed by the claimant are the withdrawal of N200, 000.00 from defendant’s treasury on 30th April, 2012, without lawful authority and purportedly lodging Sterling Bank Cheque into his staff account, without allowing cheque to go through clearing before the withdrawal of the same amount for claimant’s personal use.
The claimant continued in the act of abusing his position and again lodged an Afribank Cheque on 3rd May, 2012, and withdrew the sum of N170, 000.00 belonging to the defendant, and appropriated same for his personal use without allowing the cheque to go through clearing before withdrawing amount for his personal use. Counsel submitted that the claimant was issued with letter of query on suppression of cheque – sterling bank cheque no.5474406/ETB cheque no.816227 for N200, 000.00 (Exhibit DW.NB5); and the claimant replied the query vide Exhibit CWMM.22. Counsel submitted that the conduct of the claimant is in gross breach of the terms and conditions of the claimant’s contract of employment, and which warranted his dismissal from the employment of the defendant. More so, the claimant has not denied the allegations of gross misconduct, citing Exhibit CWMM19. It is trite law that facts admitted need no further proof. The Court has equally held that working against the deep interest of an employer cleary amounts to gross misconduct entitling the employer to peremptorily dismiss the employee irrespective of the condition of service, and the employee could be dismissed without notice and wages; counsel relied on the case of Ajayi vs. Texaco Nig. Ltd & Ors (1987) 3 NWLR (Pt.62) 577. The claimant having admitted his acts of gross misconduct has failed to establish that such acts did not warrant a dismissal as provided under the defendant’s staff general circular on Misconduct. The onus is on the claimant to prove his alleged wrongful dismissal, and the defendant had no legal obligation to continue to retain the claimant as an employee, relying on Obo vs. Commissioner for Education, Bendel State & Anor (2001) FWLR (Pt.38) 1226 @ 1238. Counsel then urged the court to hold in favour of the defendant.
Regarding issue No.2, counsel submitted that the claimant has failed to prove his wrongful dismissal, and has therefore not discharged the burden of proof which rests on him; until the claimant has proved his claim on preponderance of evidence and balance of probabilities, the onus does not shift to the defendant, relying on Longe vs. FBN (2006) NWLR (Pt.967) Pg.228. Counsel continued that the claimant cannot succeed in his declaratory reliefs, without placing cogent and sufficient materials before the court to warrant the grant of his claims for wrongful dismissal. More so, the employment relationship in this case is one of master-servant, and the claimant cannot foist himself on an unwilling employer; therefore dismissal in this case cannot be declared null and void, relying on UBN Plc vs. Chinyere (2010) 10 NWLR (Pt.1203), 453.
It is the submission of counsel that the claimant herein admitted committing the various acts of gross misconduct against the deep interest of the defendant for which reason he was dismissed by the defendant, but appealed for commuting of his sanction from dismissal to termination of appointment based on sentimental grounds of his dependants and his reputation. Again, the claimant admitted his failure to follow banking procedures, in his evidence in chief and letter of Appeal (Exhibit CWMM19), therefore his reliefs (a) and (b) are bound to fail.
Counsel continued that the claimant’s suit is statute barred and the court lacks the jurisdiction to adjudicate over same; that the cause of action accrued 16th January 2008, when the accident that affected the claimant occurred, while the claimant filed this suit on 29th September, 2014, which is over six (6) years from accrual of cause of action. He relied on Section 8 (1) and (2) Limitation Act 1966, and Osun State Government vs. Dalami (Nig) Ltd (2007) ALL FWLR (Pt.365) Pg.438. He urged the court to hold that the claimant’s suit is statute barred. And assuming the court holds otherwise, counsel submitted that the claimant has failed to prove that the accident on January 16, 2008, occurred in the course of his official duty while in the employment of the defendant. He has also failed to prove the alleged permanent partial disability, upon which he has based his claim for compensation. Counsel submitted that Exhibit CWMM15 relied upon by the claimant does not establish the fact that the claimant has suffered any permanent or partial disability as a result of any injury caused by any fault or legal obligation of the defendant to entitle the claimant to compensation from the defendant; that the claimant’s claim for compensation is an attempt at extorting the defendant through the instrument of the Court. Again, the claimant never reported any disability after the accident, while still in the defendant’s employment between January 2008 and December 2012, referring the court to paragraph 17 of defendant’s witness statement on oath, which was not disputed by the claimant. Counsel then urged the court to dismiss the claimant’s claim for compensation as same is statute barred and has not been established in evidence before the court.
Regarding the claimant’s claims for general damages and cost in the sum of N10, 000, 000.00, it is submitted by counsel that the claimant has failed to prove the wrong done to him by the defendant to entitle him to the claims. The claimant has failed to prove his allegation of wrongful dismissal; and it is settled law that where there is no evidence in support of claim for damages, the claim ought to be dismissed, citing Corporative Development Bank Plc vs. O.A.Essien (2001) 4 NWLR (Pt.704) 479. To counsel, the claimant is not entitled to any reliefs in this suit, having been properly dismissed from the employment of the defendant for acts of gross misconduct deliberately and intentionally committed by the claimant against the deep interest of the defendant. Since the claimant was properly dismissed for his acts of gross misconduct, he cannot therefore succeed in his claims before the court; urging the court to dismiss the claimant’s claims for general damages and cost.
On issue No.3, counsel submitted that the evidence adduced by witnesses before the court, confirm that the claimant has admitted receiving his furniture, education and passage allowances from defendant before his dismissal and the payments are as shown also in the statement of account for staff Account No.0062053000026, admitted as Exhibits DWNB17A, B & C. Counsel went on that the claimant was paid in advance for furniture allowance for the period covering 2011 – 2013, while he was dismissed from defendant’s employment on December 24, 2012, with an unearned allowance of N526, 300.27 for the unearned days in 2012 and year 2013. There is also unearned education allowance of N55, 598.22 for the period of December 25, 2012 to September 30, 2013. The unearned passage allowance paid in advance on January 3, 2012 is N2, 249.21. Counsel submitted that the claimant admitted having received the allowances but failed to adduce evidence as to how the monies were duly earned. The defendant herein has discharged the evidential burden of proof regarding the unearned allowances received by the claimant; urging the court to resolve the counter claims (ii), (iii) and (iv) in favour of the defendant.
Furthermore, the application for loan granted to the claimant remains outstanding in the sum of N127, 916.00 for the First Bank and REIT Share Loans, which the claimant admitted in his examination in chief. Counsel urged the court to enter judgement in the sum, as it is trite law that facts admitted need no further proof, relying on Section 123 Evidence Act, 2011. Counsel further urged the court to grant counter claimant’s reliefs (iv) and (v) on 25% interest on outstanding debt till judgement is delivered and equally 11% on the judgement sum from the date of judgement until satisfaction of the judgement. He relied on the case of Himma Merchants Ltd vs. Alh. Inuwa Aliyu (1994) 5 NWLR (Pt.347) Pg.667.
Regarding counter claim (viii), counsel submitted that it is at the discretion of the court to award the sum of N1, 000, 000.00 as cost of action to the counter claimant, as it is trite principle that cost follows event, particularly as the claimant has admitted his acts of gross misconduct, relying on Order 55 Rule 1 of the National Industrial Court Rules, 2017.He then further urged the court to grant the counter claims.
SUBMISSIONS OF CLAIMANT/DEFENDANT TO COUNTER CLAIM
The claimant’s final written address is dated 11th June, 2018, but filed 12th June, 2018, with the following four (4) issues for determination:
1. Whether in the circumstances of this suit the claimant is not entitled to commutation of his dismissal to termination and his terminal benefits paid?
2. Whether in the circumstances of this suit the claimant is not entitled to payment of pension benefits from the defendant/counter claimant?
3. Whether in the circumstances of this suit the claimant is not entitled to payment of compensation from the defendant/counter claimant for partial permanent disability suffered while in the employment of the defendant/counter claimant.
4. Whether the counter claim of the defendant is not liable to dismissal?
Counsel submitted on issue No.1, that although the employment relationship in this case is one of master-servant, the parties are still bound by their terms of employment as agreed by them and reduced into writing; and the court is equally bund to strictly interpret and enforce same, relying on Osun State Government vs. Dalami Ltd (2007) 6 MJSC (Pt.189) Ratio 5. Counsel equally referred the court to Exhibit CWMM1, CWMM11 and CWMM12, as what regulated the employment of the claimant with the defendant, and parties are bound by these instruments.
Exhibit CWMM1 and DWNB2 deals with the disciplinary measure on fraudulent withdrawals by staff; and page 1 of the said exhibit is a warning to dismissal of staff found guilty. The claimant had in his reply pleadings averred that he was adjudged guilty by the defendant for his failure to notice fraud on Mrs. Gladys Okonkwo’s FASA account, due to his negligence, and for which he was served with a letter of reprimand (Exhibit CWMM5). The evidence of the clamant was not contradicted even by DW, who admitted before the court that he was not part of the staff that investigated the claimant and never sighted the report of the investigation. Consul then submitted that the evidence of DW in this case is heresay and inadmissible, citing Section 126 Evidence Act (As amended).
It is the further submission of counsel that Exhibit DWNB10 was issued to reprimand the claimant for cash on customer account without due care, which facilitated a fraud on the customer account, but the claimant according to counsel was not part of the fraud; therefore the content of Exhibit DWNB10 cannot be varied by any oral evidence of DW, relying on Section 128 (1) Evidence Act, 2011 (As amended) and case of NWPA vs. EL-Fandi (1986) 3 NWLR (Pt.32) 884 Ratio 182. Since the defendant/counter claimant elected to reprimand the claimant in line with Exhibits CWMM11 & DWNB2, it cannot thereafter after 8 years predicate the dismissal of the claimant on the issue, relying on Menekaya vs. Menekaya (1996) 9 NWLR (Pt.472) 256 Ratio 3.
Counsel further submitted that the defendant had promoted the claimant and issued him also with certificate of loyalty after the incident over 8 years, relying on Exhibits CWMM3 and CWMM4 respectively. Again, it is the claimant’s case that the staff of the defendant have the privilege to give direct values to cheques lodged in their staff accounts first without taking them for clearing, which was what the claimant did in the case of Sterling Bank Cheque lodged in staff account, and later replaced with an Equatorial Trust Bank cheque and Afribank cheque, in the sum of N200, 000.00 and N170, 000.0 respectively. CW gave evidence to this effect, which was not controverted by defendant/counter claimant, but instead DW corroborated the evidence of CW when he stated as follows:
“Yes staffs of the defendant enjoy some privileges as claimant was the accountant of the defendant who was then in charge of operations.”
From the foregoing, counsel then urged the court to accept and act on the evidence of CW corroborated by DW and find in favour of the claimant. Furthermore, the defendant lost nothing in the process, as confirmed by DW in his evidence to the effect that claimant’s staff account was debited with N3, 450.00 regarding the Sterling Bank and Afribank Cheques. Therefore the pleadings of the defendant to the effect that there were no recordings in the outward register, cannot be established by oral evidence of DW; urging the court to disregard the evidence of DW and to presume that the outward register if produced would be unfavourable to the case of the defendant/counter claimant, citing Framo Nig. Ltd vs. Daodu (1993) 3 NWLR (Pt.281) 372 Ratio 3; Section 167 (d) Evidence Act 2011.
Assuming without conceding that the claimant did not have privilege of giving direct value to effect cheques lodged in his staff account without first clearing same, counsel submitted that by Exhibit CWMM11, such payments against unclear effect attracts only termination and not dismissal. To counsel, dismissal of the claimant in this case is wrongful and same is liable to be commuted to termination.
It is the further submission of counsel that the claimant was queried; vide Exhibit CWMM23 for granting overdraft facility to a customer, Friday Akinolu. The claimant was instructed to pursue recovery of the overdraft which he did, and the overdrawn account was credited with the sum of N138, 000 on 29th November, 2012, vide Exhibit CWMM24, within the 30 days period granted the claimant, in order to avoid disciplinary action from the defendant. The defendant cannot approbate and reprobate; they have waived their right to dismiss the claimant in accordance with Exhibit CWMM11/DWNB2; the only option is for the defendant to terminate the claimant’s employment and not dismiss him, where the defendant no longer require the services of the claimant. Counsel on this point relied on the case of Menekaya vs. Menekaya(Supra), on the equitable principle of Estoppel by Conduct, which counsel submitted that it is applicable in this case. Counsel further submitted that the purported disciplinary committee of the defendant is a ruse to give justification for the dismissal of the claimant after the defendant had waived their right to dismiss the claimant; urging the court to commute the dismissal to termination.
Counsel submitted on issue No.2 that the claimant is entitled to non-contributory pension benefits, having served the defendant for a continuous period of 10 years; that the claimant was in service for 16 years from 24th march, 1997 to 24th December, 2012, when he was wrongly dismissed from service of the defendant. It is the further submission of counsel that the defendant has not presented any evidence before the court on remittances of pensions contributions of the claimant to the Pension Fund Administrator. Counsel relied on Exhibits CWMM24, CWMM12, CWMM21 and DWNB14, urging the court to use the documents, and hold that the claimant is entitled to pension.
On issue No.3, counsel submitted that the claimant is entitled to compensation for his partial permanent disability, as it is not in doubt that the claimant was involved in a ghastly car crash on 16th January, 2008, and has suffered lifelong injuries, relying on Exhibits CWMM13, CWMM15, CWMM26 A, B and C respectively. It is not in dispute that the claimant was at the material time transferred to Abuja. By Exhibit CWMM7, the defendant approved payment of taxi fare to the claimant from Suleja to Abuja, after the claimant’s transfer from Lagos to Abuja, and the accident occurred in the course of claimant’s employment with the defendant, and the claimant is entitled to an order for compensation by this court, relying on Adejumo vs. Olawaiye (2014) 13 NWLR (Pt.1421) 252 @ 284.
On the defendant’s counter claim; it is the submission of counsel that counter claim is an independent action which the defendant counter claimant must establish to be entitled to the reliefs sought. The burden of proof lies on the defendant/counter claimant, citing Section 131 Evidence Act and case of Ige vs. Farinde (1994) 98 SCNJ (Pt.2) 284 @ 305.
The counter claimant herein has according to counsel failed to plead specifically and itemize in its pleadings when, how and the sum overpaid to the claimant as Education, Housing, passage and furniture allowances; no evidence also before the court to establish the overpaid allowances. The submission therefore of the defendant/counter claimant cannot take the place of evidence, neither can the oral evidence of the DW take the place of evidence. Counsel relied on the case of Chukwujekwu vs. Olalere (1992) 2 NWLR (Pt.221) 86 @ 93 para A Ratio 7. Furthermore, there is no documentary evidence by the defendant to the effect that the claimant has an outstanding debt for the loan facilities granted the claimant. There are nowhere in Exhibits DNB4 and DNB16, is it shown that the loans applied for was approved and the money paid to the claimant’s staff account.
The defendant has failed to link its claims to the respective parts of Exhibits DWN17 A, B and C; they have no probative values, as the documents have just been dumped on the court, relying on Maku vs. Al-Makura (2016) EJSC (Vol.37) Pg.13 Ratio 10. Counsel urged the court to disregard Exhibits DWNB17 A, B 7 C and dismiss the counter claim of the defendant with substantial cost. More so the counter claim is for recovery of debt, and the cause of action accrues upon demand for the payment of the debt, and if no demand is made, cause of action does not arise and no action can be commenced for the recovery of debt. There is no evidence on record that there was any demand for the payment of the alleged debts from the claimant before the filing of this counter claim. Where the court holds otherwise, that counter claim is competent, counsel submitted that counter claimant is not in the circumstance entitled to pre-and post judgement interest, it has failed to specifically plead and lead evidence regarding the counter claims, relying on Interdrill (Nig.) Ltd vs. U.B.A. Plc (2017) EJSC (Vol.71) Pg.19 Ratio 1, 2 and 3.
Again the claimant is entitled to damages for hardship and inconveniences occasioned by the defendant/counter claimant’s conduct, the claimant having established that his dismissal was wrongful, relying on Eseigbe vs. Agholor (1993) 9 NWLR (Pt.316) 128 @ 145.Counsel, then urged the court to grant all the reliefs of the claimant in this suit and dismiss the counter claim of the defendant/counter claimant with substantial cost.
DEFENDANT/COUNTER CLIAMANT’S REPLY ON POINTS OF LAW
This was filed on 28th June, 2018, and counsel submitted that it is only the contract of agreement between the parties in this case that is binding on them, i.e. Exhibit DWNB11, dated 1st April, 1997 and not Exhibit CWMM11 as erroneously presented by the claimant. To counsel, Exhibits CWMM11 and DWNB2 being the staff general circular is not and cannot also constitute a binding written agreement between the parties, and cannot form an addendum to the duly executed contract of 1st April, 1997. He went on that Exhibits CWMM11 and DWNB2 is a communiqué from defendant to staff and cannot exclude the application of common law principles on master-servant relationship as misconceived by the claimant. He relied on the case of Niger-Benue Transport Co. Ltd vs. Okeke (2008) ALL FWLR (Pt.429) CA 491 @ Pp.512 para. H-A. Counsel submitted that the claimant herein had continued in his act of abuse of his office to exploit banking system of the defendant to his own advantage against the deep interest of the defendant/counter claimant. The claimant had admitted the suppression of cheque and giving direct face value to cash the cheque without due processes thereby removing money from the treasury of the bank without authorization, and which attracts the discretionary sanction of dismissal. So also is the offence of giving a customer an unauthorized overdraft, which attracts the sanction of dismissal as provided by Exhibits CWMM11 AND DWNB2 respectively. The facts admitted need no further proof; the claimant admitted committing the offences, for which he was dismissed but only pleaded for clemency which was denied by the defendant. It is therefore immaterial whether defendant suffered any monetary loss by reason of the various acts of gross misconduct committed by the claimant; it is sufficient that the acts of gross misconduct was committed against the deep interest of the defendant and the defendant in circumstance has the right and power as an employer to sanction the erring employee as he deems fit.
Regarding the contention of the claimant to the effect that the evidence of DW is hearsay, counsel submitted that DW is an official of the defendant and who had access and relied on official documents made available to him in the course of his official assignment, and to testify in this case on behalf of the defendant. The evidence of DW is on the various fraudulent acts of the claimant against the deep interest of the defendant, and the documents relied upon by the defendant were admitted by the claimant in his correspondence to the defendant and pleadings; the evidence therefore of DW in circumstance cannot be said to be hearsay, relying on Ademgba vs. Okelola (2008) ALL FWLR (Pt.398) CA 292. Counsel then urged the court to discountenance the arguments of the defendant/counter claimant on this issue.
Counsel further submitted that the power of an employer to hire and fire an employee cannot be waived in a contract of employment; therefore the letter of reprimand issued to the claimant, which was just one out of the several acts of gross misconduct committed by the claimant, against the deep interest of the defendant, cannot vitiate the defendant’s power under the law to fire an erring employee under a contract of employment. The burden of proof is on the claimant who asserts that as a staff of the defendant he is entitled to the privilege to give direct value to cheques in his staff account without the due procedure of the bank. There is no evidence tendered by the claimant granting him such privilege, for which he was queried and subsequently dismissed. More so, the evidence of DW does not in any way corroborate the averment or claim of the claimant, relying on Kazeem vs. State (2009) ALL FWLR (Pt.4650 CA 1785 @ P. 1770 para. C-H. Counsel then urged the court to disregard the submissions of the claimant as same is misleading.
Furthermore, defendant’s advice to claimant to recover the unauthorized over draft facility cannot absolve the claimant from liability for his acts of gross misconduct and same attracts the sanction of dismissal and nothing less. Counsel continued that the claimant had admitted granting the unauthorized overdraft to a customer and which was discovered by the audit committee of the defendant, and this fact need no further proof, referring the court to Exhibit DWNB13. Counsel urged the court to equally disregard the submissions of the claimant on this issue as same is lacking in merit and misconceived.
It is the submission of counsel that the claimant was not wrongfully dismissed, but his dismissal was in accordance with the stipulated sanction as consequence for the various acts of gross misconduct committed by the claimant against the deep interest of the defendant. The claimant was dismissed for acts of gross misconduct and therefore not entitled to terminal benefits including non-contributory pension. The claimant is not equally entitled to claim for compensation for purported injury suffered in the accident he was involved in Suleja, Niger State onside Abuja where he was transferred to, as the accident was not in the curse of his duty as an employee of the defendant, and the injury was not suffered as a result of negligence on the part of the defendant. Furthermore, the claimant is not a worker nor is he entitled to the compensation under the Workman’s compensation Act, LFN, 1990; the accident also occurred outside the premises and area of jurisdiction of the claimant. He relied on Niger Mills Co.Plc vs. Ajube (2008) ALL FWLR (Pt.427) CA 86 @ P. 114-115 para. H-A; urging the court to dismiss the submissions of the claimant.
The counter claimant has properly discharged the burden of proof on it and does not need to tender all documents pleaded as misconceived by claimant, relying on the case of Bamigbebin vs. Oriare (2009) ALL FWLR (Pt.484) SC 1460 @ Pg. 1472 para. E-F.
Again, the counter claim in this case is not of recovery of debt but borders on the claimant’s breach of his terms and condition of employment which exposes him to return all the unearned allowances and facilities granted him before his dismissal. Counsel finally submitted that the claimant was not wrongfully dismissed, and the prerogative to commute the sanction of dismissal to termination of the employment of the claimant is that of the defendant and not the right of the claimant capable of being enforced by this Court against the defendant/counter claimant. He then urged the court to dismiss the claim of the claimant in its entirety and uphold the counter claim of the defendant.
I considered the processes filed by the parties and submissions of counsel. From the issues formulated by the parties, this court has arrived at the following issues for determination:
1. Whether the dismissal of the claimant by the defendant was wrongful.
2. Whether the claimant has proved the claims sought in this suit?
3. Whether the defendant is entitled to the reliefs sought in the counter claim.
The claimant has alleged his wrongful dismissal, and according to him he was reprimanded for his failure to notice fraud on Mrs. Gladys Okonkwo’s FASA account, due to his negligence, and that defendant cannot again after 8 years predicate his dismissal on the issue. I have looked at Exhibits CWMM5, CWMM11 and DWNB2, relied upon by the claimant in relation to his case; contrary to the argument of the claimant, Exhibit DWNB1, DWNB5 and DWNB13 are all documents in relation to allegation of gross misconduct against the claims, which led to his dismissal. For example, Exhibit CWMM5 is dated March 1, 2004, on fraudulent cash withdrawal for which letter of reprimand was issued the claimant; Exhibit DWNB1 is dated 12th June, 2012, which is a reply from claimant to the defendant in answer to the issue on suppression of cheques for which the claimant was confronted with; while Exhibit DWNB13 is dated November 27, 2012, which is query to the claimant on unauthorized overdraft facility in favour of one Akinolu Friday. These were all chain of events which occurred in different dates, contrary to the submission of the claimant that the defendant dismissed him after 8 years of the occurrence of the issue of negligence alleged against the claimant.
Furthermore, the claimant has not denied the fact that he was involved in the suppression of cheque – sterling bank cheque no.5474406/ETB cheque no.816227 for N200, 000.00, and Afribank cheque No.284 in the sum of N170, 000.00, and pleaded for leniency, vide Exhibit CWMM22.
The claimant relied on Exhibit CWMM11 and CWMM1 as the only documents which he thinks reregulates his employment with the defendant. Exhibit CWMM1 is offer of appointment of the claimant dated 24th March, 1997 and Exhibit CWMM11 is the staff general circular on gross misconduct. The claimant did not however avert his mind to Exhibit DWNB11, dated 1st April, 1997, which is the general terms of employment and signed by the claimant. The said Exhibit DWNB11 spells out in paragraphs 2 &3, under “Duties and Secrecy” and “Conduct”, on what is expected of an employee of the bank; to the effect that an employee of the bank is expected to conduct himself in such a way as shall not injure the reputation of the Bank……………….The defendant herein saw the conducts of the claimant herein as working against the deep interest of the defendant, which led to the dismissal of the claimant. The claimant admitted in his evidence under cross examination did not deny the overdraft given to defendant’s customer, and admitted having being issued with queries and reprimand.
In his further evidence under cross examination, he admitted that he did not deny giving the cheques in issue value, but that he had the privilege to give such value. There is however no document before the court in that regard, and the arguments of the claimant in circumstance is not tenable, and cannot avail the claimant. It is trite law that documentary evidence is the best evidence and predominates over any oral testimonies, and it is potent enough for the court to rely upon in this case. See S.C.O.A. (Nig.) Ltd. vs. Bourdek Ltd. (1990) 3 NWLR (Pt.138) 380 at 389; Agbareh vs. Mimra (2008) 2 NWLR (Pt.1071) 378; Omiyale vs. Macaulay (2009) 7 NWLR (Pt.1141) 597. The failure of the claimant to adduce such documentary evidence on authorization to give value to cheques in this case is fatal to his case, and I so hold.
The further evidence of CW is that he had appealed to 1st defendant to commute his dismissal to termination and did not deny the offence committed but pleaded for leniency, and since the defendant declined his request he resorted to file the suit against the defendant. The claimant has not claimed ignorance of Exhibit CWMM11, which is the staff general circular on what constitutes gross misconduct. The defendant termed the acts of the claimant as fraudulent acts which is against the deep interest of the defendant, and by Exhibit CWMM11, unauthorized overdraft, payment against uncleared effects acts of gross misconduct and disruptive behaviour attract punishment of termination to dismissal. Case law has established that in a master/servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind that can justify dismissal, and it is the employer that determines what gross misconduct is. The claimant in this case is the one who is rather in breach of the terms of his contract. More so, he admitted his failure to follow banking procedures, for which he was sanctioned. Exhibit DWNB11 in this case, cannot be read in isolation but must be read along with Exhibit DWNB2. The position of the law is that once the removal of an employee is for misconduct, and an adequate opportunity is being offered the employee as in the present case to explain or make his representation on alleged misconduct, the dismissal in that case is justified, and not wrongful; see Ajayi vs. Texaco Nig. Ltd (1987) 3 NWLR (Pt. 62) 577; Teliat Sule vs. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) Pg.17 @ 28. Consequently, issue No. 1 is resolved in favour of the defendant.
Regarding issue No.2; I have looked at the claimant’s reliefs, to the effect that his dismissal is wrongful, and his claims for reinstatement and commutal of dismissal to termination; having held that the dismissal in this case is justified, the alternative relief of commutal of dismissal to termination cannot be granted, and I so hold. More so, awarding a lesser sanction is at the discretion of the defendant. By the nature of offence committed by the claimant, for which he was indicted vide Exhibit CW9, in breach of terms as contained in Exhibits CW7 (conditions of service), the punishment for gross misconduct is summary dismissal. On the accepted general legal principles, an employee may be summarily dismissed without notice or wages if he is guilty of gross misconduct. To warrant a summary dismissal, it suffices that the conduct of the employee, as in the present case, is of grave and weighty character as to undermine the relationship of confidence which should exist between the employer and the employee. See Ajayi vs. Texaco Nig. Ltd (Supra), Teliat Sule vs. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17. In my humble view, the claimant cannot be granted the reliefs as sought in this suit, having being summarily dismissed, and the defendants in the exercise of its lawful powers, properly dismissed the claimants, and I so find and hold.
Furthermore, relief (c) is for the payment of compensation for permanent partial disability suffered by the claimant in service of the defendant. The claimant has failed to adduce credible evidence to support his claim, to the effect that the injury sustained was in the course of duty while in the employment of the defendant, the clamant is therefore not entitled to any compensation. He is equally not entitled to general damages and cost of prosecuting this suit, the reliefs (d) and (e) are refused; this court having held that the claimant’s dismissal was justified.
Regarding issue No.3; this is on counter claim of the defendant/counter claimant, on unearned allowances for education, passages, Housing and furniture, alleged to have been received by the claimant. The defendant has failed to support these claims by any credible evidence, and the claims in the circumstance are not grantable and hereby refused.
The claimant has failed in his main relief, to the effect that the termination of his employment is unlawful, and he cannot therefore succeed in his other reliefs. It is trite law, that it is not the duty of the defendant to prove the case of the claimant. The claimant must first discharge the burden of proof and cannot shift the burden on the defendant since the general aphorism or legal maxim is to the effect that “he who asserts must prove”. It is the claimant here who alleges unlawful dismissal that will fail under this claim where he fails to prove that those facts exist.
The court has held in Akpapuna v. Obi Nzeka II (1983)7 S.C. 25, that a plaintiff must establish on the pleadings and evidence in support of his case, the declaration he is seeking. The action will fail where he is unable to do so. This case is apt and applicable in the circumstance. The claimant herein cannot rely on the weakness of the defendant to succeed in his claims; he is expected to prove his claims in this suit against the defendant, which he has failed to do. There is no cogent or credible evidence before this court adduced by the claimant sufficient to sustain or support his claim of wrongful dismissal as alleged by him, and I so hold. See Health Care Products (Nig) Ltd vs. Bazza (2004) 3 NWLR (Pt. 861 Pg. 582, Paras H-D; Wachukwu vs. Owunwanne (2011) 14 NWLR (Pt. 1266) Pg. 1 @36-37, Paras G-C. The claimant is therefore not entitled to the reliefs as claimed in this suit. See Nyong Emmanuel Obot vs. Central Bank of Nigeria (1993) 8 NWLR (Pt. 310) 140 @ 162.
In any event, all the reliefs of the claimant in this suit, i.e. reliefs a, b, c, d and e, as contained in paragraph 21 of statement of facts have all failed in its entirety and are accordingly dismissed. Consequently, issues 1 & 2 are resolved in favour of the defendant, while issue No.3 is resolved in favour of the claimant.
In sum, the claimant has failed in his claims in this suit against the defendant; the claims are consequently dismissed. The defendant equally fails in its counter claim, which is also dismissed.
Judgement is hereby entered accordingly. No cost is awarded in this action.
Hon. Justice R.B.Haastrup