IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE - JUDGE
DATE: TUESDAY 4th FEBRUARY, 2020 - NICN/KN/05/2018
FATIMA BINTA GARBA - CLAIMANT
UNION BANK OF NIGERIA PLC - DEFENDANT
REPRESENTATION: Parties absent.
J. I Sa’ad, Esq. for the Claimant.
A. A. Dabo, Esq. for the Defendant.
By the writ of complaint filed on the 15th of February, 2018, the Claimant prayed for the following reliefs against the Defendant.
1. An Order of this Honourable Court setting the purported act of the Defendant dismissing the Claimant from its services as same was done unjustly.
2. An Order of this Honourable Court directing the Defendant to withdraw its accusations of gross misconduct against the Claimant having accused her wrongly.
3. An Order of this Honourable Court directing the Defendant to tender a written apology to the Claimant for using the word GROSS MISCONDUCT against her thereby dismissing her from service.
4. An Order of this Honourable Court directing the Defendant to immediately reinstate the Claimant back to its services with arrears of all her entitlements from the date of her dismissal until the final determination of this suit, having been dismissed in full disregard to the principle of fair hearing.
5. An Order of this Honourable Court directing the Defendant to pay the sum of Twenty Three Million Two Hundred and Twenty Thousand Naira ₦23,220,000 representing five years of its take home pay from February, 2012 to February, 2018.
6. Cost of filing and prosecuting this action in the sum of Two Million Naira (₦2,000,000.00).
THE CASE OF THE CLAIMANT
It is the case of the Claimant that she was a staff of the Defendant between 1985 and 2012, having been employed on 11th July, 1985. She avers that in the course of her employment with the Defendant, she had served in different capabilities and rose through the ranks to become a sub Manager in the year 2008 for which Exhibit A was tendered, dated 31st March, 2008. She stated that before her dismissal, she was the sub Manager at marketing department of the Defendant’s branch known as Ado Bayero Branch situate at Singer Market, Kano. And as sub Manager her entitlement were contained in Exhibit A1, the GMD/CEO circular dated 3rd November, 2008, headed new compensation package – sub Manager by which position she stated her gross annual pay stood at Four Million, Six Hundred and Forty Four Thousand Naira Only (₦4,644,000.00) and her monthly salary stood at Three Hundred and Eighty Seven Thousand Naira only (₦387,000.00).
She maintained further that as an experienced marketer she had secured good and solvent account for the Bank running into hundreds of billions of naira. That she maintained a good healthy relationship with the Defendants and its customers, having served the Defendant for over 27 years. She also stated that in order to show her commitment to the development of the Defendant, in her handing over note, after disclosing and submitting all items belonging to the Defendant in possession, she went ahead and disclosed an account belonging to one Alhaji Adamu Maimiro with whom she advised the management to maintain healthy relationship as the customer wished to do more business with the Defendant.
She averred that shortly before her dismissal while in office at Ado Bayero Branch of the Defendant in the year, 2012. She was invited for a chat with Auditors of the Defendant who came from Lagos as they usually did time after time. That in the course of the chat with the Auditors, she was asked by them about an unauthorised withdrawal in respect of a customer’s account to which she answered them that she knew nothing about it. That in the same sitting she was asked about a particular account which the Defendant alleged was fraudulently opened, to which she responded that the account was opened about 8 years before she was posted to the branch. She maintained that shortly after her chat with the Auditors, she was called on phone by one of her colleagues in the morning that she had been placed on suspension over which she was asked to be reporting to work every morning, sign the register and leave. She stated she later received a letter of suspension which she lost in a fire at her house in Jos during the crisis there for which she had to rely on affidavit to that effect.
She maintained that on the same day she was informed of her suspension, the same person called her again on the phone and asked her to report to the Police CID at Bompai Police Headquaters, Kano and she did on a Monday. She was told at the Police Station that the reason for her invitation is an allegation of withdrawal of ₦30,000.00 (Thirty thousand naira) from a customer’s account and for also being a call – over official to a fraudulent account.
She averred further that she answered all the allegations in the negative; and intimated the Police that the account in question was in operation at the Branch of the Defendant for about 8 years before she was transferred to the Branch. That upon explaining herself to the Police, she was asked to go and till date, the police have not pressed any charge against her in respect of the Complaint in any Court of Law in Nigeria. She maintained further that she had nothing to do with the said fraudulent account and neither did she withdraw any money from the customer’s account.
She maintained that at the end of the month she then received a half month salary in the sum of (One Hundred and Thirty Three Thousand, Nine Hundred and Forty naira and Eighty three kobo) ₦133,940.83 which she tendered as Exhibit B. She stated further that shortly after the incident at the Police station without calling her to answer any further allegation she was served on the 17th February, 2012 with a dismissal letter (admitted in evidence as Exhibit C) on the ground of gross misconduct.
The Letter of Dismissal reads:
“February 17, 2012
PRIVATE AND CONFIDENTIAL
Garba Binta F (3335678)
C/o Union Bank of Nigeria Plc
Ado Bayero Kano Branch/Department, Kano.
Dear Miss Garba,
You are hereby dismissed from the Bank’s service with effect from 17th February, 2012 for gross misconduct.
You are required to submit to your Zonal Coordinator/Head of Department all Bank’s property in your possession including your identity card.
Please acknowledge receipt.
Head, Human Resources.”
The Claimant averred further that she was neither invited nor given the opportunity to appear before any disciplinary Committee or even queried before she was dismissed. She maintained that she neither withdrew the said sum of ₦30,000 belonging to a customer nor was she a call – over official to a fraudulent account as a call – over official work at Operations department whereas she worked at the Marketing department of the Defendant. That the punishment meted on her by the Defendant of dismissal for “gross misconduct” was not justifiable having been born in 1962 she had spent substantial part of her life serving the Defendant, that the dismissal letter would tarnish her image and black list her against future employment opportunities despite having a wealth of experience in the Banking Industry.
THE CASE OF THE DEFENDANT
It is the case of the Defendant that the Claimant worked with it from 10th day of July, 1985 to 17th February, 2012 when she was dismissed for gross misconduct. Through its witness the Defendant tendered Exhibit DA the letter of appointment dated 24th June, 1985 Exhibit DA1 to DA3 being the contract of service from July 1985, Exhibit DB – DB5 the Claimant’s Q and A of the interview with its Auditors, Exhibit DC the letter of suspension dated 20th April, 2011, Exhibit DC1 to DC3 a letter written to the Deputy Inspector General of Police, Abuja and Exhibit DD being a Union Bank Statement for Amah Cleaning services.
The Defendant denied the Claimant’s monthly salary stood at Three Hundred and Eighty Seven Thousand naira only (₦387,000.00). That as at the month of March, 2011 the Claimant’s monthly salary was Two hundred and ninety three thousand eight hundred and sixty seven naira and seventy eight kobo (₦293,867.78). The Defendant denied that the Claimant had a good working relationship with its customers. That she was invited by the Internal Audit team while investigation was on-going into a multi faceted suspicious activities/transactions during a routine audit of the Ado Bayero road, Kano Branch office of the Defendant where the Claimant was the Chief Marketing Officer, Corporate Banking. That the Claimant at the interview with the Internal Auditor, she answered in the affirmative she was fully aware of the unauthorised withdrawal and the Defendant placed reliance on Exhibit DB – DB5. The Defendants maintained further that while the said investigation was on going as well as the outcome of the said interview/chat, it was discovered that the Claimant withdrew the sum of ₦30,000.00 (Thirty thousand naira) from the account of one Amah Cleaning Services Limited, a customer of the Defendant without the customer’s mandate and that she was the official who carried out the call up reconciliation exercise on 8/4/2009 and 30/6/2009 when three transactions for the sum of ₦630,000.00, ₦235,000.00 and ₦300,000.00 representing withdrawals from the said same account were processed without vouchers as none were found during the audit.
The Defendant admitted that it placed the Claimant on suspension and avers that the said suspension was done in line with the Defendant’s policy while the said investigation was ongoing and same was effected and communicated to the Claimant by Exhibit DC, the letter of suspension dated 20th April, 2011. The Defendant maintained further that after the conclusion of its said investigation with respect to the said suspicious activities/transaction, it referred the criminal aspect of the outcome of the investigation to the office of the Deputy Inspector General of Police, Abuja by way of Complaint by a letter dated 18/05/2011 (Exhibit DC1 to DC3) in which the Claimant was among the suspects in the said Complaint. That the Claimant was the Branch Chief Marketing Officer – Corporate as at the time of the said unauthorised withdrawal of the sum of ₦30,000 from the said account of Amah Cleaning Services on the 12/8/2010 as her name vividly reflected on the Statement of account as the beneficiary of the sum withdrawn and reliance was placed on Exhibit DD the Statement of account of the said Amah Cleaning Services. The Defendant averred further that the Claimant was the official who carried out the call – over reconciliation exercise on 8/4/2009 and 30/6/2009 when the three transactions for the sum of ₦630,000.00, ₦235,000.00 and ₦300,000.00 representing withdrawals from the said Amah Cleaning Services’ account were processed without vouchers to the Head Branch Operation and Business Development Manager but failed to provide any documentary evidence to support her claim.
The Defendant insisted that paying the Claimant half month salary was in line with its policy, that if its employee is suspected of any dishonest or any other serious misconduct, he/she would be suspended from duty and will be paid half of his/her basic salary and full transport and lunch allowance. That the Claimant was dismissed from its service by Exhibit C dated February 17, 2012 following the internal investigations into her role in the said multifaceted suspicious activities/transactions mentioned earlier. The Defendant also insisted that the Claimant was adequately heard before the dismissal following clause 3 of the executed contract of service Exhibit DA1 to DA3 and urged the Court to dismiss the suit.
THE CROSS EXAMINATION OF THE WITNESSES
In the cross examination of the Claimant, she admitted signing the question and answer interview between her and the auditors in Exhibit DB – DB5. She also admitted her dismissal was for gross misconduct. And that she also signed the Contract of Service. But she said that the Contract of Service and her letter of appointment were not the only documents that governed the relationship between her and the Defendant. That other documents such as the Handbook and Circulars and Memos also governed the relationship. She however told the Court she did not have any of them as the Defendant did not normally give them.
She admitted that she was suspended before being dismissed. She also admitted that since February, 2012 she had not rendered any service to the Defendant by way of work. She also insisted that her monthly salary stood at ₦387,000.00 by virtue of her letter of compensation in Exhibit A1 and that the last branch she worked was the Ado Bayero Branch where there were six staff in the department she headed. She said that she did not know whether the chat she mentioned in her deposition was what led to her suspension and dismissal.
In the cross examination of Umar Kawu, the Defendant’s only witness, a staff of the Defendant, he told the Court that the Claimant was the Chief Marketing Officer of the Branch where she worked.
The following questions and answers then ensued:
Q: From the report by the Police in Exhibit DC2 and DC3 the only problem with the Claimant is her failure to follow the case up to logical conclusion.
ANS: I did not see the Police report I am not aware of the Claimant not following the case to conclusion.
Q: From the chat between the Claimant and the Auditors, the withdrawal of ₦30,000 was authorised by the Manager through the I.O.U.
Q: You agree that all the Bank staff are answerable to the Manager and obey his instruction.
ANS: Sometimes. As a Banker you ought to know the Dos and Don’ts. When an I.O.U passes through customer’s account without the customer’s knowledge it is wrong.
Q: You agree that nowhere in the chat with the Audit Committee or the letter to the DIG was the Claimant found guilty of gross misconduct.
Q: I will be right to say the Claimant rose to the level of Chief marketing Officer due to her excellent performance at the bank.
Q: You did not serve the Claimant with Exhibit DC the Suspension letter?
ANS: She was served.
Q: Where is the acknowledgment?
ANS: She did not sign this one, but she admitted in her statement. There is no acknowledgment on Exhibit DC.
Q: You agree with me that the Bank has different departments.
Q: The Operations and Business development department handles issues of missing vouchers?
ANS: It is only Operations that handles it.
Q: Look at Exhibit A1, it is very clear that the annual salary of the Claimant is ₦4,644,000 (Four Million Six Hundred and Forty Four Thousand naira)?
The Cross examination ended and there was no re examination.
THE WRITTEN ADRESSES OF THE PARTIES
In the Defendant’s final written address, a sole issue was formulated for determination.
“Whether having regard to the totality of the evidence placed before the Honourable Court by the parties, the Claimant can be said to have established her claims on the balance of probability”
Here it was submitted for the Defendant that the answer to this lone issue be answered in the negative because the law is trite that in civil cases, the onus is on the Plaintiff/Claimant who asserts to prove his case by adducing credible evidence to prove her case relying on Sections 131 (1) , 132 and 133 (1) of the Evidence Act and the case of R – ADEYEMI VS AKANDE (2016) ALL FWLR (PT 858) 652 and that of HERO VS SHERIFF (2016) ALL FWLR (PT 861) 1309 – 1369.
The Defendant submitted further that from the totality of the Claimant’s pleading before the Court, the claim of the Claimant was centred on an allegation of wrongful dismissal from the Defendant’s services and that the onus was on the Claimant to prove her case citing the case of OKONU OIL PALM V ISERHIENRHIEN (2001) FWLR (PT 45) 670 at 683 paras D – G where it was held that the Claimant had to place before the Court the terms of the Contract of Employment and she had to prove in what manner the said terms were breached by the employer, that it is not the duty of the employer as a Defendant to prove any of these facts citing also AJI V. C.B.D.A (2016) ALL FWLR (PT 824) 175 S.C.
The Defendant stated that the terms of the contract of service/employment between the Claimant in this case and the Defendant are as contained in the executed contract of service between them which was admitted in evidence as Exhibit “DA1 – DA3”. That the Claimant had admitted under cross examination that the said Exhibit DA1 – DA3 and her appointment letter together with the Handbook, Circulars and Memos are the only documents that govern her relationship with the Defendant. That it was pathetic to note that the Claimant did not tender in evidence the said Handbook, Circulars and Memos. That it is trite law that no Court is entitled to act on untendered documents citing the cases of UDEAGHA V. OMEGARA (2010) ALL FWLR (PT 542) 1785 at 1805 per Ogunwumiju J.C.A. ISA V. SAJE (2012) ALL FWLR (PT 644) 127 CA and AJIBOYE V. DURO (2010) ALL FWLR (PT 1507) 136 at 175 paras C – F. Counsel submitted that since those documents were not before the Court, the Court had no business with them.
It was submitted further that even though the letter of dismissal did not state under which clause the appointment of the Claimant was determined, the reason was given as gross misconduct which showed that the Claimant’s appointment was determined under Clause 3 of the contract of service.
Now Clause 3 of Exhibit DA1 to DA3, the contract of service provides:
“In the event of the official being guilty of any breach of the provisions of this agreement or of misconduct of any kind (whether during or out of office hours) of which the Bank shall be the sole judge, or being found by the Bank to be incompetent to fulfil the duties of his office, or in the event of his being unable to pay his debts as they fall due, or in the event of his undertaking any financial obligation (other than those relating to his personal or household expenses) without the prior authority of the Bank, it shall be lawful for the Bank to determine this agreement at any time without notice, in which case the officer shall only be entitled to salary accrued due up to the date of such dismissal.
No member of staff is permitted to derive any benefit in the course of his official duties which might have the effect of placing him in such a position that his personal interests and his duty to the Bank or to any customer of the Bank could be in conflict and the official shall refrain from taking any course of action which might place him in such a position”
Counsel for the Defendant in arguing further on this agreement that by signing it the Claimant had agreed that her appointment with the Defendant be determined or terminated upon her being guilty of the breach of any of the said 14 Clauses of Exhibit DA1 – DA3 or upon her being found to be incompetent to fulfil the duties of her office in which case the Defendant shall be the sole judge. That the law is that a valid agreement like Exhibit DA1 – DA3 entered into by the parties is binding on them and a Court has a duty to respect and enforce it, placing reliance on ADEGBOLA V. INSIGHT COMM. LTD (2017) ALL FWLR (PT 896) 1833.
In response the Claimant formulated two issues for determination in her written address.
1. Whether the Respondent had recourse to the hallowed principle of fair hearing in dismissing the Claimant?
2. Whether having regard to the totality of the evidence placed before the Honourable Court by the parties the Claimant can be said to have established her claims on the balance of probabilities?
Regarding the issue of whether the Defendant adhered to the principles of fair hearing, the Claimant answered this issue in the negative. And contended that in her dismissal, the Defendant did not have recourse to the hallowed principle of fair hearing so as to ascertain the culpability of the Claimant in the allegation levelled against her, relying on the case of JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE V (DR) MRS ASARI YOUNG (2014) ALL FWLR (PT 714). And submitted that requirements spelt out in the ASARI YOUNG case not met by the Defendant. Further reliance was placed on the provisions of Section 36 (6) of the Constitution of the Federal Republic of Nigeria on fair hearing. Reference was made to the Claimant’s pleadings at paragraphs 13, 14 and 15 of her claim where it has averred that “13. . . .shortly before her dismissal while in office at Ado Bayero Branch of the Defendant in the year 2012, she was invited for a chat with Auditors of the Defendant who came from Lagos as they usually do from time to time.
14. . . . In the course of her chat with the Auditors she was asked by them about an unauthorised withdrawal in respect of a customer’s account to which she answered them that she knew nothing about it”
It was then argued for the Claimant that these paragraphs of the Claimant’s Statement on Oath having been adopted as evidence and having been corroborated the Defendant did not challenge under cross examination. That in reply at paragraphs 12 of the Statement of Defence, the Defendant averred:
“The Defendant admit paragraph 13 of the Statement of Claim and adds that the Claimant was invited by the Internal Audit team while investigation was on going in a multifaceted suspicious activities/transactions during a routine audit of the Ado Bayero road, Kano branch office of the Defendant where the Plaintiff was the Chief Marketing, Corporate Banking.”
It was argued further for the Claimant that the following undisputed facts could be deduced from the pleadings and evidence of the Claimant and the Defendant.
i. That the Claimant was invited for the purpose of chatting with the auditors as they usually do from time to time.
ii. That it was only in the course of the chat that she was asked a question relating to what was later to be an allegation against her.
That from the foregoing it was pertinent to ask if the Claimant was informed promptly of the allegation against her when she was only asked in the course of the chat? That the Defendant did not comply with the provision of Section 36 (6)a of the CFRN and urged this Court to so hold.
In addition it was also argued that the Claimant was not given adequate time and facilities for the preparation of her defence citing the Supreme Court case of . . . V. C.O.P (2015) ALL FWLR (PT 799) page 1101 @ 1123.
In the reply on points of law filed by the Defendant with specific regard to this first issue for determination. The Defendant at paragraph 1.2 of the reply submitted that:
”In the reply to the Claimant’s legal arguments and submissions covered by paragraph 2.1 – 2.3 of her said final written address, we humbly submit that the correct citation of the case cited is PT 714 not PT 719 as written by the Claimant and that the case dealt with contract of employment with statutory flavour. Whereas, in the instant situation, the contract of employment between the parties is not covered by statute but by agreement of the parties, that is, Exhibit “DA1 – DA3: My Lord; the facts and circumstances of the said case of J.S.C RIVERS STATE V. ASARI YOUNG (2014) ALL FWLR (PT 7140 40 cited and relied on by the Claimant is quite distinct and different from all angles of the instant case. My Lord, the facts of that case were stated at pages 48 and 49 of the said report (Law report). My Lord, it is our submission that the said Audit Committee of the Defendant cannot be said to exercise judicial or quasi – judicial functions to warrant the invocation of the said case of YOUNG (Supra)”
Without much ado, in determining this first issue formulated by the Defendant. I hold that the Claimant’s contract of employment was and is one not governed by statute. Therefore, submissions of Counsel on the point importing in ASARI YOUNG’S case was totally inappropriate showing a misapprehension of the applicable law that Courts should follow and apply in cases of this nature. In the case of FESTUS OPEOLUWA DAODU V. UNITED BANK FOR AFRICA PLC (2004) 9 NWLR (PT 878) 276 on the duty of the Court to determine the nature of a contract of employment, the Court of Appeal held following ILOABACHIE V. PHILLIPS (2002) 14 NWLR (PT 787) 264, that the duty of determining the nature of contract of employment, whether it is governed by statute or it is under Common law creating a Master and Servant relationship is the exclusive preserve of the Courts.
On when an employment will be said to have statutory flavour, the Supreme Court held in CHIEF TAMUNOEMI IDONIBOYE – OBU V. NNPC (2003) 2 NWLR (PT 805) 589 at page 632 per Iguh J.S.C that the vital ingredients must co-exist before a contract of employment may be said to import statutory flavour include the following:
1. The employer must be a body set up by statute.
2. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.
In this case, I hold that Exhibit DA1 to DA3 is not a statute.
Now, as to whether fair hearing would apply in cases of misconduct in a master and servant relationship, the Court of Appeal held in MR P.C.N UZONDU V. UNION BANK OF NIGERIA PLC (2009) 5 NWLR (PT 1133) that
“The Courts have defined wilful misconduct to be any act prejudicial to the interest of the master or outside the scope of duties of the servant. That no fair hearing or hearing is required. That the only relevant consideration is whether or not the contract of service was breached or not”.
And in BENEDICT HIRKI JOSEPH V. FIRST INLAND BANKING PLC (2010) FWLR (PT 504) it was held that
“An employee was confronted with an allegation of misconduct before his employment was terminated cannot complain about lack of fair hearing”.
On the whole and in the light of the above authorities, the issue whether the Defendant had recourse to the principle of fair hearing before it dismissed her is resolved against the Claimant. Here, I hold on this issue that a combined reading of the contents of Exhibits DA1 – DA3 and Exhibits DC1 to DC3 headed: Report on the involvement of five additional staff of Ado Bayero road Branch, Kano shows that the Defendant did enough to let the Claimant know and respond to the allegations bordering on gross misconduct concerning or involving her.
With regard to the 2nd issue for determination whether having regard to the totality of the evidence placed before this Honourable Court by the parties, the Claimant can be said to have established her claims on a balance of probabilities.
I must state that having just determined the first issue formulated by the Claimant for determination and having read through the arguments and submissions of the Claimant and those of the Defendant in the final written address and reply, I must state that I do hold here that the cardinal determinant here is whether the Defendant has been shown to have breached any terms of the contract of employment between it and the Claimant. Here, I hold that the Defendant has not, rather I point back to Clause 3 which I reproduced in extenso earlier in this judgment where it was clearly stated that in matters of this nature leading up to dismissal, the Defendant (the Employer) would be the sole judge. Those are part of the terms the Claimant signed and she is held to be bound by it. And I hold that she has not on the balance of probability proved her case which is hereby dismissed in its entirety.
Judgment is entered accordingly. There are no awards as to costs.
HON. JUSTICE E. D. E. ISELE