IN THE NATIONAL INDUSTRIAL COURT
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HER LORDSHIP HON. JUSTICE O. Y. ANUWE
SUIT NO: NICN/OW/39/2014
Chike Abangwu ] CLAIMANT
Dan Inuma ANOR ] DEFENDANT
C. P. Dikeocha for the Claimant
No appearance for the Defendants
The Claimant initiated this action on the 9th day of April 2014 by way of complaint, wherein the sought the following relief: The Claimant claims against the Defendants jointly and severally, the sum of N200million as special and general damages for the induced breach of the Claimant’s contract of employment, wrongful dismissal of the Claimant as well as malicious and libelous publications which were made against the Claimant by the Defendants. The complaint was accompanied with Statement of Facts, List of the Claimant’s witnesses, the Written Depositions of the Claimant’s Witnesses, List of the Claimant’s Exhibits and copies of the said Exhibits. These originating processes were served on the Defendants. The 2nd Defendant entered appearance vide a motion for extension of time on the 20th day of October 2014 and filed a Statement of Defence, the Written Deposition of the Defendant’s Witness, the Defendant’s List of Witnesses and the Defendant’s List of Documents and copies of documents to be relied upon at trial. The Claimant filed a Reply to the 2nd Defendant’s Statement of Defence on the 14th day of November 2014. Hearing commenced on the 16th day of July 2015. The Claimant testified for himself as CW1 while Mrs. Ngozi Abangwu, wife of the Claimant testified as CW2. Mr Anthony Nsoro a staff in the Human Resources Department of the 2nd Defendant’s Headquarters testified as DW1. Hearing ended on the 22nd day of October 2015 and parties were ordered to file Final addresses in accordance with the rules of court. The 2nd Defendant filed its Final written Address on the 12th day of November 2015, while the Claimant’s Address was filed on the 2nd day of December 2015. The Claimant’s address was duly adopted on the 18th day of February 2016 while the 2nd defendant’s address was deemed by court as duly adopted. The 1st Defendant did not file any processes in this suit. Neither did he call any witness. In the 2nd Defendant’s final address, Counsel distilled one major issue for determination, which is: Whether or not the Claimant was wrongfully dismissed from the services of the 2nd Defendant. He proceeded to state that in order to arrive at the answer to this question, the following sub-issues call for determination by this court. They are: i.What is the nature of the allegation against the Claimant by the 2nd Defendant that resulted in his dismissal and under what head does it fall in the contract of service Exhibit M? ii.What instrument governs the relationship between the Claimant, and the 2nd Defendant? iii.Whether the Claimant was given ample opportunity to defend himself of the allegation against him? iv.What is the justifiable ground in law for an employer to dismiss his employee? v.Whether in the circumstances of this case, the Claimant has proved his case to the satisfaction of the court as to entitle him to the reliefs being claimed or any relief whatsoever? On the first sub-issue, counsel submitted that the allegation against the Claimant was that he loaned money to the 1st Defendant to enable him buy large quantity of kerosene for resale at a profit contrary to clause 5 of the contract of service agreement, Exhibit "M", and in recovery of the loan granted paid in money into the said 1st Defendant's account in order to clear an undated cheque given to him by 2nd Defendant in repayment of the loan. It is Counsel’s contention that the Claimant's act of using his privileged position as a staff of the Bank to monitor the account of a customer (1st Defendant) to know when it is funded, and eventually paid money into the said account in order to clear an undated cheque earlier given to him by the 1st Defendant in repayment of the loan amounts to fraud. This is owing to the fact that he did not have the mandate of the 1st Defendant and could not have succeeded if not for the office he was holding as a staff of the Bank. The Claimant’s action was an abuse of office which is a gross-misconduct which punishment is dismissal. Counsel urged the Court to dismiss this action even on this ground alone. On sub-issue two, counsel submitted that the Contract of service agreement tendered and admitted as Exhibit "M" is the instrument governing the relationship between the Claimant and the 2nd Defendant. Counsel urged the Court to hold that the parties are bound by the terms and conditions of Exhibit "M”. Regarding sub-issue three, counsel contended that it is on record before this court that the 2nd Defendant on being aware of the claimant's act issued him with a query. It is also on record before this court that the Claimant responded to the said query where he admitted having paid money into the 1st Defendant's account in order to clear the undated cheque earlier given to him by the 1st Defendant in repayment of the loan sum, among other admissions. In the light of the above, counsel urged the court to hold that the Claimant was given ample opportunity to defend himself of the allegation against him, and that fundamental right to fair hearing was not breached be the 2nd Defendant before dismissing him. With respect to sub-issue four, counsel referred to UZONDU vs. UNION BANK PLC (2009) 3 WRN 97 at 102. RATIO 8, where the court held thus: “Where an employee omits to do something or commits an act which is injurious to the business of the employer, and is incompatible with the faithful discharge of his duties, it is justifiable to dismiss him.” Counsel submitted that it is an elementary principle of commercial law of master servant relationship that one of the major acts of an employee that results in his dismissal is an act of gross misconduct. He referred to the case of NWOBOSI vs. ACB LTD (1995) 7 SCNJ 92, where the Supreme Court defined Gross Misconduct as follows: "gross Misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which shall exist between an employee and the employer". It is counsel’s contention that the Claimant's act of using his privileged position as a staff of the Bank to monitor the funding of the 1st Defendant account, and thereafter paid money into the said account in order to clear an undated cheque given to him earlier by the said 1st Defendant is a fraudulent act, a gross abuse of office of a grave and weighty character as to undermine the confidence which shall exist between the employer and the employee, and same properly fits in as Gross-misconduct. Counsel further contended that the totality of the Claimant's act is not only embarrassing and injurious to the business of the Bank, but incompatible with the faithful discharge of his duties. It is counsel’s submission that his dismissal is justifiable on the authority of UNDERWATER ENGINEERING LTD & ANOR vs DARUSHA DUBEFOM (1995) 6 SCNJ 58,and OSAKWE vs. NIGERIAN PAPER MILL LTD (1988) 7 SCNJ 222. Counsel urged the Court to uphold his submissions and dismiss the action also on this ground. On sub-issue five, Counsel submitted that an employee, who is rightfully dismissed by his employer, is not entitled to any financial benefit from his employer. Thus the Claimant is not entitled to any of the reliefs being sought by him in paragraph 47 of his statement of facts or any relief at all. It is the argument of Counsel that the Claimant has not been able to show that his dismissal by the 2nd Defendant was wrongful. It is worthy to note that the Claimant, in his reply to the query issued to him by the 2nd Defendant, admitted the entire allegation against him. He also admitted the allegation in his evidence before this court. The law is trite that facts admitted do not need to be proved. From the foregoing, Counsel submitted the Claimant is not entitled to any of the reliefs sought. He urged the Court to refuse all the reliefs in paragraph 47 of the statement of facts, and dismiss the entire suit for being frivolous, and unmeritorious. In the Claimant’s final address, counsel stated in reply to the Defendant’s submission in paragraph 2.01 and 2.02 of his address that the 2nd Defendant was aware of the transaction between the Claimant and the 1st Defendant. He stated further that the Claimant had the authority and consent to carry out the actions he took. Counsel proceeded to raise an issue for determination, which is: Whether the Claimant was wrongfully dismissed and whether the Court has the power to hear and determine the issue of defamation which arose in connection with the dismissal of the Claimant. Counsel submitted that Section 14 of the National Industrial Court Act and Section 254C (1)(a) of the 1999 Constitution (as amended) empower this Court to adjudicate on matters “relating to or connected with any labour, employment, trade unions, industrial relations, and matters arising from workplace and matters incidental thereto or connected therewith”. From this submission, counsel stated that the case of SHELL DEV. CO. LTD vs. MAXON (2001) 9 NWLR (Pt. 719) 541 at 553, 554 has explained the phrase “arising from” to suggest that a matter is one springing up from or having its offshoot from the main matters. On the strength of this authority, counsel argued that the court can hear and determine the subject matter of defamation arising from the Claimant’s dismissal. It is the submission of counsel that the Defendant published defamatory material against the Claimant. (Exhibits C and I). He submitted that for a claim of defamation to succeed, the Claimant must show the following: 1.That the words complained of must have been published. 2.That the publication must lower the Claimant in the estimation of right thinking members of the society. 3.The words published must refer to nobody else but the Claimant. 4.That it was the Defendant that published the words. See NSIRIM vs. NSIRIM (1990) 3 NWLR (Pt. 138) 285, counsel submitted that the claimants has fulfilled all the requirements of the law to establish the defamatory contents of exhibits C and I. Counsel relied on the case of ADEYEMO vs. AKINTOLA (2004) 12 NWLR (Pt. 887) 390 and submitted that the Claimant has established that the Defendants are liable for the tort of libel. Again, the Claimant gave unchallenged testimony about the defamatory publications and the adverse effect he suffered; it is the law that where a Claimant’s evidence is unchallenged and it established his claim, he is entitled to judgment. See MUSA vs. YERIMA (1997) 7 NWLR (Pt. 511) 27 at 41, 42. The 2nd Defendant admitted it wrote Exhibit I and sent to the Public Complaints Commission in paragraphs 6, 12, and 24 of their witness’ deposition. Counsel referred to BIEZAN GUEST HOUSE LTD. vs. UNION HOMES LTD (2011) 7 NWLR (Pt 1246) 246 at 285 and submitted that what is admitted does not need further proof. Furthermore, counsel argued that while libel is actionable per se, the Claimant suffered grave damages as follows: 1.dismissal from work after 26 years of service 2.arrest and detention by the police 3.continuing inability to secure any employment since 2009 4.payment of legal fees to defend the 1st Defendant’s claims in NIC/51/2010 Counsel submitted that in a libel action, an award of damages must be adequate to repair the damage suffered by the claimant. See EJABULOR vs. OSHA (1990)5 NWLR (Pt.148) 1 at 16 and ALAWIYE vs. OGUNSANYA (2004) 4 NWLR (Pt. 864) 486. He argued further that aggravated damages can be awarded when there is evidence of reckless disdain for the Claimant by the Defendants in the way and manner whereby the Defendants carried out their defamatory publications. Counsel drew the Court’s attention to the fact that the 2nd Defendant made pecuniary gain by reason of the defamation as it seized the opportunity to dismiss the Claimant and deny him his terminal benefits. The 1st Defendant is still indebted to the Claimant till date. See DINA vs. NEW NIGERIA NEWSPAPER (1986) 2 NWLR (Pt. 22) 323. Counsel urged the Court to award substantial aggravated damages against the Defendants. It is also Counsel’s contention that the onus of proving whether the Claimant’s conduct in question is gross misconduct rests on the party alleging it- the 2nd Defendant. See TEXACO OVERSEAS UNLTD vs. KUNDAYE (2003) FWLR (Pt.155) 665 at 677. He submitted that in the event that the 2nd Defendant fails to prove that the Claimant committed any misconduct, then the dismissal is wrongful and the Claimant is entitled to payment of damages for breach of contract and payment of his accrued entitlements, such as pension and gratuity. See OSISANYA vs. AFRIBANK NIG LTD (2007) 2 SC (Pt. 1) 311 at 331. Again, counsel contended that contrary to the Defendant’s submission, the Claimant’s act of giving a loan to the 1st Defendant was done with the knowledge of Mr Okiyi, the immediate supervisor of the Claimant and an agent of the 2nd Defendant. See Exhibit J. Counsel submitted that since the said Exhibit J contained an admission against interest, it requires no further proof. See CAPPA AND D ALBERTO LTD vs. AKINTILO (2003) 9 NWLR (Pt. 824) 49 at 69. Similarly, counsel argued that the 2nd Defendant had no special method for authorizing loans such as the one granted to the 1st Defendant. Thus, informing Mr Okiyi satisfied the requirement of clause 5 of Exhibit M. He argued further that the Claimant gave evidence that he secured the consent of the 1st Defendant before paying in money in his account. Also, Counsel went further to submit that the evidence of the Defendant’s witness is inadmissible hearsay because his entire testimony was based on what the audit people told him. Counsel urged the Court to hold that the 2nd Defendant has failed to prove that the Claimant was in breach of Clause 5 of Exhibit M and the Claimant did not commit any act that would amount to gross misconduct. Similarly, Counsel reiterated that the Defendant has failed to present credible evidence to prove the various criminal allegations against the Claimant beyond reasonable doubt. Counsel urged the court to hold that the Claimant’s dismissal is wrongful and that the Claimant is entitled to his claims as per his complaint and Statement of facts. Court’s Decision I think it is necessary to first look at the facts of the case from the evidence adduced by the parties before proceeding to consider the issues involved in the case. Only the Claimant and the 2nd defendant called evidence in this matter. The Claimant himself testified as CW1. It is his case that he was employed by the 2nd Defendant on 4th July 1983 and he served the 2nd Defendant for 26 years before he was dismissed on 12th October 2009. The Claimant said during his employment, he was made a permanent and pensionable staff and he was promoted several times up to being made a Sub-Manager. The Claimant tendered his employment letter in evidence as Exhibit A. The Claimant further told this court that he was acquainted with the 1st Defendant and on 20th December 2007, the 1st Defendant pleaded for an interest free loan of N812,000.00 to purchase kerosene product which the Claimant granted on the understanding that the 1st Defendant would repay the loan after the 2007 Christmas. The 1st Defendant issued the Claimant with an undated cheque for the loan sum but the 1st Defendant pleaded with the Claimant not to present the cheque yet even though monies were going through the 1st Defendant’s account. In August 2008, the 1st Defendant told the Claimant to date the cheque 15th September 2008 and present it for payment that day. On presenting it, there was no fund in the account. In January 2009, the 1st Defendant informed the Claimant that there was an inflow of N500,000.00 into his account but the Claimant should pay in the difference of N312,000.00 into the account to enable the Claimant cash the cheque. The Claimant did so and withdrew N812,000.00 from the account; N500,000.00 of it being part payment from the 1st Defendant. The Claimant said he did not alter the cheque in any way nor did he steal the money from the 1st Defendant because he gave the deposit slip for the N312,000.00 to the 1st Defendant. But the 1st Defendant reported a case of fraud and conspiracy against him and the Branch Manager to the police. The Claimant said he was arrested, detained and after investigations, he was released when no offence was found to have been committed by him. The 1st Defendant went further to petition him to the 2nd Defendant alleging fraud in a letter dated 30th January 2009. The 1st Defendant knew the content of the petition was false yet he maliciously caused the petition to be published to numerous persons including the 2nd Defendant, the police and the Claimant’s co-workers in order to cause damage to the Claimant. By reason of the petition, the Claimant said he was suspended from work on 26th March 2009 by the 2nd Defendant and placed on half salary. Shortly after his suspension, the 2nd Defendant also dismissed him from employment. The Claimant’s suspension letter and dismissal letters are in evidence as Exhibits G and H. The Claimant’s further testimony is that the 2nd Defendant, who knew the allegation by the 1st Defendant was false, did not also investigate the allegation made against him properly before dismissing him on the strength of the false allegation. The 2nd Defendant also wrote a letter dated 15th December 2011 to the Public Complaints Commission which letter the Claimant said was published to the Commissioners and members of the PCC. According to the Claimant, the letter was defamatory of him because it was understood that he was dishonest, unreliable and unfaithful as a banker. Because of the libelous publications against him, the Claimant said he lost his job, gratuity, pension, salary and allowances due to him between May to December 2009. The Claimant said going by paragraph 20 of page 9 of the 2nd Defendant’s staff pension scheme, his emoluments include basic salary, lunch subsidy, housing and transport allowances. The sum of these form his pension and gratuity. The Claimant went on to state that by his calculation based on the 2nd Defendant’s gratuity and pension scheme, his total pension, gratuity, unpaid salary and allowances including 20% interest thereof is the sum of N22,033,167.51. The Claimant concluded his evidence by saying that the defamatory publications by the Defendants have caused him damages which include loss of employment, being blacklisted by CBN and inability to secure another employment. It is in consequence of the acts of the Defendants against him that he sought the sum N200 Million against the Defendants as special and aggravated damages. In the Claimant’s additional evidence, there is nothing different or new from what he has said in his main evidence. I noticed however that he has maintained that he was not confronted with any criminal allegation before he was dismissed and that his conduct did not amount to gross misconduct. The Claimant’s CW2 is the Claimant’s wife. Her evidence is not dissimilar to what the Claimant has already said in his evidence. It will not be necessary to review her evidence again. The 2nd Defendant’s witness, who is on record as DW1, told this court that when the Claimant was employed in 1983, he executed a contract of service with the 2nd Defendant. Until his dismissal from the 2nd Defendant’s employment on 12th December 2009 for gross misconduct, the Claimant was a Sub- Manager in the 2nd Defendant’s PPMC, Eleme Port Harcourt branch. In 2009, the 2nd Defendant received a letter from the solicitors to the 1st Defendant threatening legal action against the 2nd Defendant on account of an unauthorized transaction on the 1st Defendant’s account by the Claimant. The allegation in the letter was that the Claimant manipulated the 1st Defendant’s account by encashment of a cheque in the possession of the Claimant without authority from the 1st Defendant. The 2nd Defendant first issued the Claimant a query to respond to the allegation. In the Claimant’s reply to the query, he admitted lending money to the 1st Defendant and that he paid money into the account to beef up the balance in the account in order for him to be able to cash the cheque of N812,000.00. The Claimant’s said reply to query was admitted in evidence through DW1 as Exhibit L. DW1 further told this court that after the Claimant’s reply was received, he was placed on suspension from 18th March 2009 pending outcome of investigation by Staff Disciplinary Committee on the matter. After investigation, the Claimant was found to have unlawfully and without authority carried out transactions in the 1st Defendant’s account. The Claimant’s conduct contravened the terms of his contract of service and he was consequently dismissed from service on 12th October 2009 on ground of gross misconduct. DW1 also stated that the Claimant’s conduct has exposed the 2nd Defendant to unwanted liabilities and tended to put the 2nd Defendant to disrepute. The Claimant’s conduct may also lead to loss of integrity the 2nd Defendant has built over years. It is the further evidence of DW1 that the contract of service between the Claimant and 2nd Defendant is the contract of service in Exhibit M signed by the Claimant and the 2nd Defendant did not breach the condition of service in dismissing the Claimant. According to DW1, the Claimant is not entitled to any financial benefit since his exit was based on dismissal. Now that the facts and cause of dispute in this case is clear, I think I will rather adopt the sole issue formulated in the Claimant’s final written address for determination in this matter. The issue adequately covers the controversies arising in this case. The issue is: Whether or not the Claimant was wrongfully dismissed and whether this court has jurisdiction to determine issue of defamation which arose in connection with the dismissal of the Claimant. In the consideration of the issue for determination, it is necessary to examine the relief the Claimant sought in this suit. The Claimant sought a single relief as reflected on both the Complaint and the statement of facts. The Claimant’s claim against the Defendants, which he sought jointly and severally, is the sum of N200 million as special and general damages for the induced breach of the Claimant’s contract of employment, wrongful dismissal of the Claimant as well as malicious and libelous publications which were made against the Claimant by the Defendants. It is observed, from the way the relief is couched, that the Claimant seeks the sum of N200 Million for (1) breach of contract of employment/wrongful dismissal and (2) defamation. The facts of the Claimant’s case and evidence adduced by him also reveal quite clearly that his cause of action in this case against the Defendants is founded on defamation and wrongful dismissal. In his written address, the Claimant’s counsel raised the issue of the jurisdiction of this court to entertain actions founded on defamation. It was Counsel’s submission that this court has jurisdiction to hear matters brought on defamation. It is observed that the issue of the jurisdiction of this court to entertain any of the Claimant’s cause in this suit did not arise from the case of any of the parties. It is apparent that the Claimant’s counsel knows the Claimant’s claim in defamation in this suit raises a fundamental jurisdictional issue. I will consider this subject before proceeding to other issues. The Claimant was an employee of the 2nd Defendant and in the course of his employment, he had a personal loan transaction with the 1st Defendant who was a customer of the 2nd Defendant. The Claimant alleged in this case that the Defendants had defamed him by their conducts and letters written against him in respect of what transpired between him and the 1st Defendant. According to the Claimant, he was dismissed from his employment as a result of the false and defamatory letter written to the 2nd Defendant by the 1st Defendant. The National Industrial Court, as it is called, is an Industrial Court. The subject matters which the court can entertain are set out in Section 254C of the 1999 Constitution (as amended). By the provision of subsection 1 thereof, one common factor in the subject matters in which this court is vested with jurisdiction is that they have their foundation in industrial relationship or contract of employment. In this instant case, the foundation of this action, which is what enabled the Claimant to file this suit in this court, is the contract of employment between the Claimant and 2nd Defendant. The Claimant has sued both Defendants claiming the sum of N200 Million from them as damages for defamation and wrongful dismissal. The Claimant has not shown any employment relationship between him and 1st Defendant. In fact the 1st Defendant is not the Claimant’s employer and it was not him who dismissed the Claimant from employment. From the facts of the Claimant’s case, the allegation against the 1st Defendant is limited to the allegation of defamation only. A construction of the provisions of Section 254C (1) of the 1999 Constitution will reveal that this court has no jurisdiction on the tort of defamation. The Claimant’s counsel did argue that this court can entertain the Claimant’s action in defamation because it is related, connected or arose from the subject matter on which this court has jurisdiction. With respect to counsel, his view is no more than a self-serving interpretation of the provision. The Claimant’s action in defamation in this suit cannot be said to be related, connected or arose from the Claimant’s employment. As I have said earlier, the 1st Defendant who the Claimant has sued in this case to have defamed him has no employment relationship with the Claimant and the loan transaction between the Claimant and the 1st Defendant which resulted to the disputes in this case was done by the Claimant outside his official capacity as a staff of the 2nd Defendant. It cannot therefore be argued that the complaint in defamation is connected to or arose from the Claimant’s employment. In my view, the matters on which this court is permitted to exercise jurisdiction in Section 254C (1) of the 1999 Constitution (as amended) does not extend to actions in defamation. I hold that this court lacks jurisdiction with respect to the Claimant’s cause of action in defamation. Therefore, the Claimant’s cause of action in defamation, which is also the cause of action against the 1st Defendant, is not competent before this court. The 1st Defendant and the Claimant’s claim for defamation ought ordinarily to be struck out at this point but by the nature of the relief sought by the Claimant; it may be difficult to separate the claim merged in the Claimant’s single relief. The Claimant did not distinguish the sum claimed as damages into what was sought for wrongful dismissal and defamation. In that situation, it appears to me more convenient to first consider the part of the Claimant’s case which is properly before this court before coming to a conclusion on the claim. Since the claim for wrongful dismissal is properly before this court, I shall consider whether the dismissal of the Claimant was wrongful or not. Upon examination of the Claimant’s case with respect to his dismissal from employment by the 2nd Defendant, his case is that after he had withdrawn money from the 1st Defendant’s account vide the cheque given to him by the 1st Defendant, the 1st Defendant, among other actions taken on the issue, wrote Exhibit C through his solicitors to the 2nd Defendant where he made allegations of fraud against the Claimant. By reason of the petition, the Claimant said he was suspended from work on 26th March 2009 by the 2nd Defendant and placed on half salary. Shortly after his suspension, the 2nd Defendant also dismissed him from employment on 30th January 2009. According to the Claimant, the 2nd Defendant knew the allegation by the 1st Defendant was false but did not investigate the allegation made against him properly nor was he at anytime confronted with allegation of force debiting 1st Defendant’s account or heard from before the 2nd Defendant went ahead to dismiss him on the strength of the false allegation. The Claimant’s dismissal letter, Exhibit H, contain that the Claimant was dismissed for gross misconduct. This is a good point to mention it that the 2nd Defendant’s counsel indicated that he will raise objection to the admissibility of Exhibits G and H, that is the Claimant’s suspension and dismissal letters, in his final address. However, counsel did not raise the objection. He is deemed to have abandoned the objection. The said documents have been pleaded by the Claimant and they are relevant. I hold that the documents marked Exhibits G and H are properly so in evidence. It is settled law that the terms of a contract of service are the foundation in any case where unlawful or wrongful termination of employment or dismissal from employment is alleged. Where a Claimant’s case is based on wrongful dismissal or termination of employment, the consideration of the case is usually hinged on the contract of service. Therefore, the Claimant is required to plead and prove the terms of the contract of employment and also show in what manner the said terms of the contract were breached by the employer in his dismissal. See UZONDU vs. U.B.N PLC (2008) All FWLR (Pt. 443) 1389 at 1440-1441; TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 157; PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967. The Claimant in this case has sought this court to award him damages for his wrongful dismissal from the 2nd Defendant’s employment. The onus is on him to first place before the court the terms of his contract of employment, and then prove in what manner the terms of contract of employment was breached in respect of the alleged dismissal. In order to convince this court that he was wrongfully dismissed, the Claimant’s case must show the circumstances under which he can be dismissed, the procedure for dismissal and the manner in which the dismissal breached the terms and conditions of his employment. Throughout his pleading and evidence, the Claimant did not plead the terms of employment nor did he show how his dismissal offended the terms of his employment. He did tender some documents in evidence though. His employment letter is Exhibit A. The letter merely informed the Claimant that he has been employed, without containing any condition of the employment. Exhibit B is the Trust Deed of the 2nd Defendant’s Staff Pension Fund executed between the 2nd Defendant, Union Trust Ltd and Williams Street Trustees Ltd. Besides the fact that the Claimant is not a party to this Deed, it is also not the Claimant’s condition of service. It merely contains the terms governing the 2nd Defendants Staff Pension Fund and Pension and Gratuity Scheme without touching on termination or removal of the 2nd Defendant’s staff from employment. It has no relevance to the Claimant’s allegation of wrongful dismissal. The Claimant pleaded the 2nd Defendant’s staff hand book in paragraph 2 of his statement of facts but he did not tender it in evidence neither did he plead the terms of the handbook relevant to his case. In effect, the Claimant has not shown the terms and condition of his employment nor has he shown how his dismissal offended the condition of service. It is rather the 2nd Defendant who pleaded and did put the Claimant’s condition of service in evidence. DW1 stated that that the contract of service between the Claimant and 2nd Defendant is the contract of service dated 4th July 1983 and signed by the Claimant. The contract of service was admitted in evidence through DW1 as Exhibit M. DW1 said that the 2nd Defendant did not breach the condition of service in dismissing the Claimant. Paragraph 5 at 3rd page of Exhibit M provides – “Official will not without the consent of the bank borrow any money from any person or company other than the bank and without such consent will not lend any money to nor guarantee the liabilities of any person or company” Paragraph 3 at 2nd page states- “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 fulfill the duties of his office or in the event of his being unable to pay his debt 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 official shall only be entitled to salary accrued due up to the date of such dismissal” In the Claimant’s reply to the query, he admitted lending money to the 1st Defendant. The Claimant was found to have unlawfully and without authority carried out transactions in the 1st Defendant’s account. The Claimant’s conduct contravened the terms of his contract of service and he was consequently dismissed from service on 12th October 2009 on ground of gross misconduct. The Claimant was dismissed for gross misconduct but the dismissal letter did not state the nature of gross misconduct for which the Claimant was dismissed. DW1 has explained in his evidence that the misconduct for which the Claimant was dismissed was that the Claimant admitted lending money to the 1st Defendant in his reply to query and the Claimant was found to have unlawfully and without authority carried out transactions in the 1st Defendant’s account. DW1 said further that the Claimant’s conduct contravened the terms of his contract of service and he was consequently dismissed from service on ground of gross misconduct. From the Claimant’s case, as pleaded in paragraphs 5 and 7 of the statement of facts, the Claimant lent money to 1st Defendant and it was the repayment of that loan that generated the disputes leading to this suit. In its defence, the 2nd Defendant averred that after the complaint was received by the 2nd Defendant, it gave a query to the Claimant to answer to the allegations in the complaint and the Claimant replied the query. The Claimant’s reply to the query, dated 04/02/2009, was admitted in evidence as Exhibit L. Although the Claimant did not mention anywhere in his pleadings or evidence that he was queried or that he submitted a response to the query, he admitted however under cross examination that he was issued a query after the 1st Defendant’s counsel petitioned to the 2nd Defendant and he responded to the query in writing. Exhibit L was tendered without objection from the Claimant’s counsel. In his reply to the query, the Claimant did admit to the 2nd Defendant that he loaned money to the 1st Defendant and it was in his bid to get his money back that he had to cash the cheque but returned N312,000.00 to the account to avoid overdrawing the account. Although the Claimant attempted to contend under cross examination that the 2nd Defendant was aware of the loan transaction between him and the 1st Defendant, he did a poor job of it. Under cross examination, the Claimant said the 2nd Defendant was aware of the loan transaction between him and the 1st Defendant because he took the 1st Defendant to the branch Manager, Mr Okiyi. This evidence is new because it was not part of his case at all. I have read his pleadings and examined his evidence in chief but I did not find anywhere he pleaded that the 2nd Defendant or Mr. Okiyi were aware when he was lending money to the 1st Defendant. The said Mr. Okiyi is only a staff of the 2nd Defendant. He is not a defendant. Secondly, what the condition of service requires is the consent of the 2nd Defendant before lending out money. Therefore, the 2nd Defendant being aware of the loan, as alleged by the Claimant is not the consent required in condition of service. In fact from his reply to query, it is very evident that he never informed the 2nd Defendant before granting loan to the 1st Defendant. The Claimant did not show any evidence that the 2nd Defendant consented to loan he gave to 1st Defendant. The Claimant’s conduct, no doubt, contravened paragraph 5 at the 3rd page of his contract of service. The conduct amounted to gross misconduct and the 2nd Defendant is entitled to dismiss him pursuant to Paragraph 3 at 2nd page of the contract of service. Furthermore, from all that the Claimant has said about his dismissal, what he appears to be saying is that the complaint upon which he was dismissed was false, therefore his dismissal upon a false complaint was wrongful. Let me look at his case from this angle. First, what was the allegation against the Claimant? The Claimant said the action taken against him by the 2nd Defendant arose from the letter written by the 1st Defendant’s solicitors to the 2nd Defendant. That letter is Exhibit C. The letter did a narrative of the transaction between the Claimant and 1st Defendant but the gist of the complaint against the Claimant in the letter was that he fraudulently altered the date on the cheque issued to him by the 1st Defendant and withdrew the sum of N500,000.00 from the 1st Defendant’s account without the knowledge of the 1st Defendant. Secondly, did the 2nd Defendant have any reason to believe the allegation to be true? In his reply to the query, that is Exhibit L, the Claimant wrote as follows in the 3rd page: “On 29/01/2009, Mr. Inuma had a balance of N506,000.00 and considering the cheque he gave me will be expiring in a month’s time without any chance of getting Mr. Inuma to revalidate it, I decided to get back part of my money instead of losing all. Mr. Inuma’s account was debited with the face value of the cheque he issued to me and mindful of the fact that I am not supposed to create overdrawn situation in the account, I had to pay back the sum of N312,000 so as to reduce his indebtedness to me to that extent. It was not my intention to place the bank in any form of difficulty neither was my intention fraudulent. I was only trying to reduce my apparent loss situation.” By his own hand, the Claimant had admitted to the 2nd Defendant that he transacted on the 1st Defendant’s account without 1st Defendant’s authorization or knowledge. On what basis does he now contend that the allegation against him was false? Perhaps, his case is that the 2nd Defendant should stick to the terms or particular allegation of the complaint in Exhibit C. But by his reply to the query issued to him based on the content of Exhibit C, the Claimant is taken to have told the correct facts where he admitted he actually did something wrong while trying to get his money back from the 1st Defendant. The 2nd Defendant is entitled to believe the allegation to be true based on the Claimant’s reply to query and act on the Claimant’s admission. It is settled principle in master and servant relationships that where an employee omits to do something or commits an act which is injurious to the business of his employer and is incompatible with the faithful discharge of his duties, it is justifiable for the employer to dismiss him. In the case of YUSUF vs. NATIONAL TEACHERS INSTITUTE (2002) FWLR (Pt. 129) 1509 at 1526, it was held that- “There are no fixed rules of law defining degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of grave and weighty character as to undermine the confidence which would exist between him and master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employee irrespective of the condition of service”. See also EZE vs. SPRING BANK PLC (2012) All FWLR (Pt. 609) 1076 at 1090 The Claimant has alleged in paragraph 44 of the statement of facts that the 2nd Defendant did not properly investigate the allegation or hear the Claimant’s side of the story before dismissing him. It appears to me that his contention is that he was not given fair hearing before the 2nd Defendant took the decision to dismiss him. He has told this court that he was given a query and he replied the query before he was dismissed. In the Claimant’s reply to query, Exhibit L, the Claimant admitted he lent money to the 1st Defendant and he transacted on the 1st Defendant’s account without his authorization. Where the 2nd Defendant can find violation of terms of the condition of service in the Claimant’s reply to the query, it will be sufficient for the 2nd Defendant to dismiss the Claimant on that ground alone without the necessity for investigation or further hearing. Even at that, the notion of fair hearing in master and servant relationship is no more than disclosing the allegation to the employee and giving opportunity to the employee to answer to the allegation. In NATIONAL BANK OF NIGERIA vs. OMOTAYO (2002) FWLR (Pt. 114) 454 at 466, it was held that- “To satisfy the rule of natural justice and fair hearing, a person likely to be affected by a disciplinary proceeding must be given adequate notice of the allegation against him to enable him make a representation in his own defence”. Further, at the same page of the report, the court commented thus- “In this case, the plaintiff was given fair hearing when the defendant issued him a query which was answered by the plaintiff/respondent before a decision was taken against him” Again, in NEPA vs. ENYONG (2003) FWLR (Pt. 175) 452 at 472, it was held as follows- “ I think it is on the basis of this emphasis of fair hearing that the Supreme Court decision in the recent case of Osakwe vs. Nigeria Paper Mills Ltd (1998) 10 NWLR (pt 568) 1, can be explained. There it was held that where an employee is confronted with an allegation of crime by the employer and the former is given an opportunity of explaining himself, then he cannot later turn around to say he was not given a fair hearing” From the evidence before this court, the Claimant was issued a query and he answered the query before he was dismissed. In my view, his allegation of non investigation or hearing is unfounded. It must be mentioned, notwithstanding, that in master and servant employment, what determines wrongfulness of a dismissal is the terms of the contract of service and not the notion of fair hearing. See OSAKWE vs. NIGERIAN PAPER MILL (1998) 7 SCNJ 222 at 231. Since the Claimant has failed to relate his dismissal to a breach of the terms of his contract of service, the consequence is that he has failed to prove his case. An examination of the facts of this case in light of the condition of service, no breach of the terms of the employment is disclosed in the dismissal of the Claimant. I find and hold that the Claimant’s dismissal is not wrongful. In paragraphs 41, 42 and 43 of statement of facts, the Claimant pleaded that he is entitled to pension, gratuity and unpaid salaries and allowances from May 2009 to December 2009 altogether totaling N18,360,973.45 with 20% annual interest from 2009 till date. In his evidence, the Claimant said that according to the 2nd Defendant’s staff pension scheme, paragraph 20 of page 9 thereof, his emoluments include basic salary, lunch subsidy, housing and transport allowances. The Claimant stated that by his calculation based on the 2nd Defendant’s gratuity and pension scheme, his total pension, gratuity, unpaid salary and allowances including 20% interest thereof is the sum of N22,033,167.51. After having pleaded these facts and given evidence of it, I have wondered what the Claimant wants to achieve by it. He did not claim anywhere in his Complaint or statement of fact any relief for payment of pension, gratuity or unpaid salaries and allowances. The only claim of the Claimant in this suit is the “sum of N200million as special and general damages for the induced breach of the claimant’s contract of employment, wrongful dismissal of the claimant as well as malicious and libelous publications”. The words used in the relief are clear and simple. The claim does not envisage pension and gratuity and it cannot be stretched or interpreted to include claim for payment of pension and gratuity. I am not unmindful of the fact that pension and gratuity are undeniable entitlements of an employee, but the failure of the Claimant to claim it as a relief is fundamental. The law is trite that the court cannot dole out a relief which has not been sought for by a party. Assuming this court can even give a consideration to the Claimant’s pension and gratuity, the Claimant’s contract of service in Exhibit M and a provision in the 2nd Defendant’s Pension and Gratuity Scheme in Exhibit B prevents this court from doing that. Paragraph 3 at 2nd page of the contract of service provides that in the event of dismissal, the staff is entitled to only salary accruing up to date of dismissal. Also, Exhibit B tendered by the Claimant, which of course he intended to rely for his pension and gratuity contains in paragraphs 20 and 22 at Pages 15 and 16 that gratuity is payable on retirement, resignation and termination but not payable to staff dismissed from service on ground of fraud or misconduct. That is to say the Claimant would not be entitled to be paid pension and gratuity in any event, having been dismissed from the 2nd Defendant’s employment. In conclusion of this judgment, I resolve the issue for determination against the claimant. I find that the Claimant’s claim fails completely. Without further waste of time, I hereby dismiss the suit. No order as to cost.
Judgment is entered accordingly.
Hon. Justice O. Y. Anuwe Judge