IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA (JUDGE)

                                                              

                                                                              SUIT NO: NICN/PHC/137/2017

DATE:  SEPTEMBER 30, 2021

 

BETWEEN:

LOVELL OSAHON EHIGIE                                                             ] - CLAIMANT

 

AND

FIRST BANK OF NIGERIA LTD.                                                  ] - DEFENDANT

 

REPRESENTATION:

P. Ndukwe, Esq. - for the Claimant;

Chief J.K Mong (with C. Nworgu, Esq.; N.N Paul-Maah and A.K Nobo)

-for the Defendant.

 

JUDGMENT

 

1.             By a General Form of Complaint and frontloaded originating processes, dated and issued on 22nd December 2017, the Claimant, who served for about 29 years and rose to the rank of Assistant Manager with the Defendant bank, brought this suit basically challenging his abrupt termination/dismissal from the Defendant’s employment and conducts amounting to unfair labour practice perpetrated against him by the Defendant.

 

2.             The Claimant’s endorsed reliefs are as follows:

1.    A Declaration that the termination and or dismissal of the Claimant was unlawful and illegal.

2.    A Declaration that the Claimant has suffered damages as a result of the acts of the Defendant.

3.    A Declaration that the Claimant is entitled to and be paid his salaries, entitlement and emolument from the period he was unlawfully and illegally dismissed from his employment until judgment is given in this suit.

4.    The sum of N60,000,000 (sixty million naira) being damages for unlawful and  illegal termination/dismissal

IN THE ALTERNATIVE, the sum of N100, 000,000.00 (hundred million naira) only being pay off or severance fee”.

 

3.             Upon service of the court processes, the Defendant reacted with its Statement of Defence and other defence processes, dated 19th February 2018. The Claimant again, responded with his Reply to Statement of Defence 8th November 2018 and filed on 9th November 2018, wherein he raised more allegations of conducts bordering on unfair labour practice against the Defendant, and joined issues with the Defendant on his claims.  The matter first came up before His Lordship, A.Ibrahim, J, Ph.D (of the blessed memory) and was re-assigned to this court upon His Lordship’s demise. It was later set down for trial.

 

4.             At the trial proceedings of 22nd March 2019, the Claimant opened his case and testified for himself, as Claimant’s Witness (CW). He adopted his Witness Statement on Oath on22nd December 2017, and tendered 9 sets of documents, admitted in evidence and marked as exhibits C1-C9 as described in the modified Claimant’s list of documents dated 22nd December 2017. The exh.C9 was admitted after recall of CW at the resumed trial proceedings of 27th May 2019.  The exhibits are as follows: Letter of employment dated 16th June 1998 (exh.C1); Employee Handbook (exh.C2); Letter of Deployment dated October 8 2007 (exh.C3); Letter of Suspension dated September 5 2017 (exh.C4); Letter of Termination of Appointment dated September 15 2017 (exh.C5); Letter  confirming service years (exh.C6); Publication on staff exit /issuing of dud cheque (exh.C7); Cheque issued and returned after account was blocked (exh C8) and Query on issuance of dud cheque (exh.C9). CW was thoroughly cross-examined by the Defendant’s counsel, and there being no re-examination by his counsel, the Claimant’s case was closed.

 

5.             At the resumed trial proceedings of 3rd March 2021, the Defendant opened its defence through one Onyibo Uchary (Human Capital Business Partner in the Defendant’s Human Resources Dept), who testified as Defendant’s Witness (DW). He adopted his Witness Statement on oath sworn to on 19th February 2018. He tendered no documents as exhibits. After his vigorous cross-examination by the Claimant’s counsel, and there being no re-examination from the Defendant’s counsel, the Defendant’s case was closed.

 

CASE OF THE PARTIES

6.             Going by the pleadings and testimonies at the trial as well as the exhibits on record, the case of the Claimant is that he was employed by the Defendant vide a letter of employment dated 16th June 1998 (exh.C1), and served for about 29 years as at July 2017, after rising through the ranks to the position of Assistant Manager, and have been deployed at various branches of the Defendant bank (exh.C3), where he served creditably without blemish.

7.             Claimant went on that, on 14th July 2017, barely 14days after he received an Anniversary Congratulatory letter dated July 01 2017 (exh. C6), for his 29 years of meritorious service with the Defendant, he received a query alleging that he issued a dud cheque to an unknown third party (exh.C9), of which he quickly responded to on 17th July 2017 denying issuing any such dud cheque and clarifying what actually happened, which does not amount to issuance of dud cheque, as he had earlier paid the beneficiary the said amount (N325,000.00), and presenting the cheque again for payment is an error. That despite his explanations, he yet received on 5th September 2017, a mail suspending him from office pending investigation of the said allegation (exh.C4). Claimant contended that, without being invited to any disciplinary proceedings and without compliance with the provisions of Article 11(c) the Employee Handbook (exh.C2), he received another letter of Termination of Appointment dated September 15 2017 (exh.C5), terminating his employment on the purported ground that his services were no longer required.

 

8.             It is also the Claimant’s case that the Defendant went further to circulate his photo card in the office release circulated on 16/1/2018, with an inscription “Staff Exited from the Bank As a Result of various Infractions “, and he was remarked as being involved in act of “gross misconduct-issuance of dud cheques” (exh.C7). Claimant also testified  while the suit was still pending in court, the Defendant in a sheer attempt to frustrate him and cause severe hardship on him, the Defendant blocked/froze his two accounts (current acct no.2002538103 and savings acct. no. 3008601497), which made it impossible for the Claimant to conduct banking transactions in the said accounts. That to further intensify the suffering of the Claimant, the Defendant wrongfully dishonoured a cheque he issued for his Children’s School fees (exh.C8), which caused him serious embarrassment, while the said cheque has nothing to do with the Defendant, as it was drawn from the Claimant’s personal account in the Defendant’s bank. 

 

9.             CW testified that the reason for his termination/dismissal was based on the alleged issuance of dud cheque and not merely that his services were no longer needed as alleged in the termination letter.  And that due process was not followed as he was not invited for any disciplinary proceedings and he was neither paid even the stipulated ‘one month salary in lieu of notice’ nor his accrued terminal benefits paid. That he had suffered damages as a result of the acts of the Defendant against him. CW prayed the court to uphold the Claimant’s case and grant judgment in his favour.

10.        On the other hand, the case of the Defendant tallies with that of the Claimant on the employment history, but differs markedly on the reason for the termination/dismissal and the necessity for following the exit procedure set up under Article 11(c) of the Employee Handbook. It is the Defendant’s case that the Claimant’s employment was terminated as his services were no longer required and not as a result of issuance of dud cheque of which the Defendant had drawn the Claimant’s attention through the query and which he responded to, and that ended that issue. And that no such reason was raised in the termination letter which was served on the Claimant. That the Claimant was paid one month in lieu of salary, and that it did not set up  disciplinary procedure against the Claimant as the reason for his termination was that his services were no longer required, and such reason for termination does not warrant setting up disciplinary committee to try the employee. It was contended for the Defendant that the termination of the Claimant’s employment was lawful, as it was done in accordance with the terms of his employment with the Defendant. And that the Claimant has not suffered any form of hardship, depression and damages. Defendant prayed the court to dismiss the suit with costs. 

 

COUNSEL’S SUBMISSIONS

11.        Learned lead counsel for the Defendant, Chief J.K Mong fniim, in his Final Written Address dated 18th March 2021 and filed on 22nd March 2021, raised and canvassed arguments on a sole issue for determination- “Whether in the circumstances of this case the Claimant has made out any case to support the reliefs claimed in this action?” On his part, learned Claimant’s counsel, Peter Ndukwe, Esq, in his Final Written Address dated 29th June 2021 and filed on 30th June 2021, raised and canvassed arguments on two issues for determination- (a). Whether the Claimant was wrongfully dismissed from his employment by the Defendant?, and (b). Whether the Claimant is entitled to the reliefs sought?

 

12.        At the resumed proceedings of 26th July 2021, both counsel adopted their respective Final Written Addresses, adumbrated on same, and urged the court to uphold their submissions as canvassed in their respective divide for the parties they represented. The Judgment was thereafter reserved. Full consideration would be accorded both counsel’s respective submissions on the issues raised and canvassed in the course of this judgment.

 

 

 

 

COURT’S DECISION

13.        I had active participation in the engaging proceedings; read the pleadings and processes along with the submissions canvassed in the Final Written Addresses filed and exchanged by respective counsel, as well as their oral adumbration in advancing the case of the parties they represent. I also keenly watched the witnesses testify and had noted their demeanors, and also carefully evaluated the evidence tendered as exhibits in the proceedings.

 

14.        Upon review of the issues and supporting submissions by both counsel, I have formed the view that the respective issues raised and canvassed by both counsel are closely related and can conveniently be subsumed and taken together under the following two encompassing issues: (1) What is the employment exit status of the Claimant- is  it termination or dismissal? (2) Did the Claimant prove his case and entitled to the reliefs sought?  I will proceed to resolve the dispute along line of these two legal issues underpinning the dispute.

 

15.        On issue (1)-Status of the Claimant’s employment exit- whether Termination or Dismissal: I had observed that, from the originating processes and pleadings, including testimonies of witnesses and even submissions of both  counsel, it was not clear and mutually agreed, as to the exit status of the Claimant from the Defendant’s employment. This situation has necessitated earlier resolution of this issue to guide as to the nature of evidence expected and the reliefs that could be asked for or granted, given that the employment in issue is one of which is governed by the common law rule of master/servant relationship. Although none of the counsel expressly raised it as an independent issue in their respective Final Written Addresses, yet given its pre-eminence in the underlying dispute between the parties, both counsel, in their respective Final Written Address, took divergent positions on the issue.

 

16.        The  Claimant had presented his case basing his exit on dismissal, while the Defendant insisted that it was mere termination of employment based on the condition of service/employee handbook (exh.C2),  which was copious on the face of the exh.C5, titled” Termination of Appointment”. Learned Defendant’s counsel submitted in para.9 of his Final Written Address that “… By Article 4.0 of exhibit C2 the employment of a confirmed employee such as the Claimant herein ‘may be terminated by either side giving the other one month’s notice or payment of equivalent amount of basic salary in lieu of the required notice period”.

 

17.        Counsel went on, in para.14, to submit that “...the termination of the Claimant’s appointment/employment was in accordance with the terms of his employment as contained in Article 4.10 of exhibit C2 is no more in doubt. Exhibit C5 tendered by the Claimant is explicit on the reason for the termination of the Claimant’s employment.” Citing and relying on West African Examination Council v. Muritala Oyewusi Obisesan (2008) LPELR-CA/1/133/20 (wrong citation), counsel then concluded vociferously that  “Neither the Court nor the Claimant can go outside the termination document to search for reasons other than that stated on the face of exhibit C5 for termination of Claimant’s appointment “.

 

18.        Counsel had further argued that the Defendant’s publication of the Claimant’s photo card (exh.C7), where the reason of ‘gross misconduct -issuance of dud’, was stated is not reliable and is of doubtful origin, on the basis that it was not stamped and contrary to the provisions of S.83(4) of the Evidence Act. Counsel urged the court to discountenance and expunge the said exh.C7 from the records, as being inadmissible, being a piece of hearsay evidence as defined under S.37 (b) of Evidence Act, and having also been made by “a person interested at a time when these proceedings were pending and involving a fact in dispute”, which rendered it inadmissible under S.83(3) of the Evidence Act.

 

19.        For the Claimant, learned counsel pointedly indicated that what actually happened was dismissal and not termination as the Defendant and its counsel would want the court to believe. Counsel in para.3.4 of his Final Written Address, submitted that “Although exhibit C5 was titled Termination of Appointment but it is dismissal and has the effect of dismissal in facts and in law. It was not termination but dismissal as the procedure spelt out for termination in exhibit C2 (employee handbook was not followed or complied with...”. Counsel also refers to Article 4.10A and last paragraph of Article 11.3 of Exhibit C2, and further contended in para.3.5 of his Address, that “…from the totality of the evidence adduced during trial and particularly exhibit C4 it is without dispute that the claimant was still on suspension as at the time exhibit C5  was issued. There was no evidence led and there was nothing before the court to suggest or establish that the claimant had been recalled before the issuance of exhibit C5”.     

 

 

 

 

 

 

20.        Counsel argued that the Clamant was not paid any salary in lieu of notice and was not given the required one- month notice as stipulated in employee handbook, and the alleged payment of the one-month salary in lieu of notice was denied by the claimant during his cross-examination.  Citing and relying on a host of cases, such as Dr.Chukwuma v. Shell Petroleum Development Corporation of Nig.Ltd [1993]4NWLR (Pt.289)512; Abomell v. NRC [1995]1 NWLR (Pt.372)451, counsel submitted that an employer is bound to give reason for dismissing an employee, which reason ought to be justified. Counsel pointed that the reason for the dismissal was stated in the query issued to the Claimant (exh.C9), as being for issuance of dud cheque, and that the suspension issued to the Claimant (exh.C4) was still subsisting when the termination letter (exh.C5) was served on the Claimant.  And that the photo card of the staff exit in the memo publication (exh.C7) clearly also stated the reason for his being sacked, for gross misconduct-issuance of dud cheque. Counsel further argued, citing and relying on J.A Ibem v. Obubra District Council (1960) S.C.N.L.R 70, to the effect that dismissal of the Claimant carries with it infamy and deprived him of terminal benefit he ought to have received.  Counsel concluded by submitting that from exhs. C9, C4 and C7, there is an undisputed direct inference could be drawn on why the Claimant was relieved of his appointment based on the allegation of gross misconduct of issuance of dud cheque.  

 

21.        Upon review of both counsel’s submissions on this aspect of the issues set out for determination, it is imperative to resolve and take clear position on the status of the Claimant’s exit from the Defendants’ employment, given also, the subtle legal implication of dismissal as against  termination in the legal regime of employment exit pathways.  Core distinguishing features of termination and dismissal, relating to the issue in discourse, are that while dismissal is purely disciplinary measure exercisable only by the employer, termination is basically exercisable by both employer and employee pursuant to the terms of their employment contract. And while termination preserves earned terminal benefit in favour of an employee, dismissal, being a disciplinary measure,  has the effect of taking away terminal benefit and casts doubt about the future employability of the dismissed employee, as it carries with it infamy on personal character of the employee.

 

 

 

 

 

22.        Bearing in mind these core distinguishing features of termination and dismissal, the lingering issue is, can there be a dismissal without an expression of it in the exit letter issued by the employer? In other words, can evidence of surrounding circumstances pointing to dismissal be upheld in the face of the exit letter saying it is termination? Let me quickly point out that the law is clear that evidence of exit circumstances can ground allegation of dismissal as against termination, where evidence at trial disclose that the real intention of the employer is to dismiss the employee rather than the overtly expressed termination with often veiled reason of ‘services no longer required’. This is the basis of upholding a termination as constructive dismissal in such circumstance where an employee did not willingly resign or is forced to exit the employment. Such exits are categorized as ‘constructive dismissal’. If constructive dismissal is an accepted concept of exit pathway in employment relationship, how much more would termination fraught with disciplinary measure but cloaked with ‘services no longer required’, be construed, as in the instant suit?

 

23.        From the record, I find that the Claimant was issued with a query accusing him of issuing dud cheque which is misconduct (exh.C9), of which he denied and presented reason to exculpate himself. He was nevertheless suspended to enable unhindered investigation (exh.C4). But without disclosing the outcome of the said investigation that prompted the suspension, the Defendant just within few days (about 10 days of the suspension), terminated the employment, on the ground that his “services are no longer required...” (exh.C5).

 

24.        It is strange in employment disciplinary procedure for the Defendant as employer to initiate a disciplinary process against the Claimant, an employee, suspended him pending outcome of investigation, but purported to abandon the process half way without bringing out the outcome of the investigation of the allegation of misconduct which could lead to dismissal, but turned around to relieve the Claimant of his employment on another ground of ‘services no longer required’, and called it termination. More so, as there is evidence on record that the Claimant served the Defendant for 29 years without blemish, and received a Happy Anniversary Letter dated July 01 2017 (ex.C6), in which he was praised and prayed for. Yet, the Claimant was just sacked barely two months of his 29th anniversary of service on the ground that his ‘services are no longer required’. The nagging question is, did the Claimant really exit his employment with the Defendant by way of termination given the evidence on record?  

 

25.        Learned Defendant’s counsel by his standpoint in his submission would rather prefer that the court is circumscribed, restricted and pigeon-poled into looking at only the termination letter (exh.C5), to decipher the basis of the Claimant’s exit. Counsel had vociferously argued, citing and relying on West African Examination Council v. Muritala Oyewusi Obisesan (2008) LPELR-CA/1/133/20 (wrong citation), that “Neither the Court nor the Claimant can go outside the termination document to search for reasons other than that stated on the face of exhibit C5 for termination of Claimant’s appointment “.  This stance by counsel clearly clashes with the overriding power of the court to look into its own record and proceedings, not to talk of its adjudicatory duty to examine documentary evidence tendered and admitted as exhibits in the proceedings, review and evaluate same, and make use of them, in a concerted effort towards effective judicial resolution of the litigated issues in dispute. On that note, contrary to the expectation of learned Defendant’s counsel, I would adopt a holist approach in performing the adjudicatory duty, and thus, would examine and construe all relevant documentary evidence tendered and admitted, forming part of the evidence on record in this proceedings. See: Ado v. Mekara [2009]9NWLR (Pt.1147) CA491@ 506, para.A-B; Onwuka v. Owolewa [2001]7NWLR (Pt.713)695.

 

26.        A reproduction of the relevant exhibits will aid the discourse. The Exh.C9 is Query contained in the e-mails from one Kenneth C. Anyalechi (BDM PH-Central BDO) to the Claimant, dated 14th July 2017 and Kenneth I. Ayaduno (Cluster Control Officer, Lagos Island)( 6:31 and 6:40 pm, respectively).  The query reads: “in the course of our review of Marina Branch activities, we observed that your cheque was returned for insufficient fund as stated in the table below. Your swift response is expected on why necessary disciplinary actions should not be taken against you for flaunting the bank’s rule/policy on issuance of dud cheques. Your response is expected on or before 10am July 17, 2017”.  In the second mail by Kenneth Anyalechi forwarding the query to the Claimant, stated: “I hope you know this is dismissal offense. What happened?”  

 

27.        The Claimant had denied the allegation and explained out the circumstances of his issuing the said cheque. The main defence of the Claimant was averred in para.1 (ii) and (iii) of his Reply to the Defendant’s Statement of Defence. It reads: “(ii). The amount written on the cheque as N325,000.00 has been paid as per attached first online receipt print. (iii). Presenting this cheque again for payment is an error which should be disregarded. Based on the above, I kindly request that disciplinary action should not be taken against me, because, I did not issue Dud cheque”.

 

28.        He further averred that “since the sum of N325,000.00 has already been paid by the Claimant, the Claimant  has nothing to do with the cheque”. It is the Claimant firm defence that he was never involved in any issuance of dud cheque, as it never existed. Incidentally, despite this defence, the Defendant went ahead to suspend the Claimant vide exh.C4 (Suspension letter dated September 5, 2017).  The Memo titled “Suspension- Issuance of Dud Cheques”, and signed by Barbara A. Harper, Group Head, Human Capital Management & Development, reads: “Following the acts of Gross Misconduct levied against you in relation to the captioned, you are hereby placed on suspension from duty with immediate effect in line with the provision of the Employee Handbook pending the determination of your case. You are required to sign the attendance register daily at your Branch/Department and you will be paid half (1/2) basic salary, full housing, transport and utility. Please note that payment of the above-mentioned monthly allowances will be dependent on your signing the attendance register daily”. Without awaiting or bringing out the investigation report of the suspension, by a letter dated September 15 2017 (exh.C5), the Defendant relieved the Claimant of his employment. The letter of Termination of Appointment signed by Barbara A. Harper (Group Head, Human Capital Mgt & Dev) reads: “This is to inform you that your services are no longer required in this organization. You will be paid salary up to and including the date of this letter plus one month basic salary in lieu of notice. Consequently, your appointment is hereby terminated with immediate effect. Thank you”.

 

29.        With the series of the events culminating in the Claimant’s loss of his job with the Defendant, ranging from query, answer to query, suspension and termination of employment, all happening in chain and spanning barely two months, from July to September 2017, can it be said that the Claimant’s termination has no link with the allegation of issuance of dud cheque, but merely on the undisclosed reason of ‘services no longer required’?

 

30.        In the circumstance, I find and hold the view that these series of events are inseparable and not mere happenstance, as they culminated in the Claimant’s exit from the Defendant’s employment, in a manner linked to exercise of disciplinary measure, which amounts to dismissal and not mere termination of employment. I so hold.

 

 

 

 

 

31.        I find also that the Claimant was not paid any terminal benefit, and no evidence was presented to clarify the Defendant’s assertion that the Claimant was paid one month salary in lieu of notice. These conducts essentially point to dismissal and not termination. I find such acts by the Defendant as in line with basic consequence of summary dismissal, which is a disciplinary punishment for any act of misconduct, as stipulated in Article 11.5 of the Employee Handbook(exh.C2), to the effect that “No notice shall be given in case of summary dismissal. In the event of summary dismissal, all terminal benefits shall be forfeited to the Bank”.   

 

32.         The Defendant had denied that it did not dismiss the Claimant but merely terminated his employment on the basis that his services were no longer required. Yet throughout the length and breadth of its pleadings, the Defendant joined issues with the Claimant on the issue of the disciplinary measure meted against the Claimant for alleged act of misconduct, upon which he was suspended. Counsel had even argued that the disciplinary issue was resolved in favour of the Claimant, as there was no need to comply with Article 11(c) of the exh.C2, which set out the disciplinary hearing procedure. While still admitting none compliance with the set out procedure, learned Counsel for the Defendant had tried to justify the non-compliance on the basis that it is not necessary where the employee is relieved of his employment under the concept of ‘services no longer required’.

 

33.         Counsel had in para.25 of his Written Address restated the pleading of the Defendant as averred in paras.3 and 4 of the Statement of Defence, and quoted para.4 thus: “The Defendant did not set up any disciplinary committee against the Claimant because the Defendant agreed to disregard the dud cheque issue as pleaded by the Claimant. There being no disciplinary committee the Defendant was not obliged to invite the Claimant to any such committee”. Counsel went on in para.25 of his Written Address to submit that “it is clear from the above pleadings that the issue of dud cheque has been settled before the employment of the claimant was terminated. Therefore no reason for article 11(c) of exhibit C2 in the circumstances of this case and we urge the court to so hold”. Learned counsel did not however, say or present evidence at the trial to show at what point “the issue of dud cheque has been settled before the employment of the claimant was terminated”.

 

 

 

 

 

 

34.        I find that the last that was heard of the issue of dud cheque before the Claimant’s employment was terminated was letter of suspension served on him in respect of the allegation of issuance of dud cheque (Exh.C4)( Suspension-Issuance of Dud Cheques). Nothing more came out of the suspension pending investigation other than that the Claimant was relieved of his employment, that his ‘services were no longer required’ as expressed in exh.C5(Termination of Appointment).  I also find that despite this state of facts and evidence on record, learned Defendant’s counsel still maintained that the termination of the Claimant’s employment by the Defendant has nothing to do with the issue of dud cheque, and therefore, there is no need to comply with the disciplinary hearing procedure set out in the Defendant’s own Handbook (exh.C2). Learned counsel by maintaining this stance, seems also, to have forgotten that he joined issues on it with the Claimant’s Witness (CW) while conducting his cross-examination.

 

35.        At the trial, the Cross-Examination Questions (Q) and Answers (A) between the Defendant’s Counsel (DC) and the Claimant’s Witness (CW) are as follows: “Q5: I will be correct to say that by the provision of employees Handbook (exh.C2), Art.11 (3) (h), it is the management of the Defendant that determines what qualifies as an act of misconduct that can lead to termination? A: Yes; Q.6: It is an offence from exh.C2 (Hand book) for you to as a member of staff of Defendant to issue a cheque to a 3rd party when there is no sufficient fund in your account? A: Yes; Q.7: I will be correct to say that such act is an offence that qualifies for termination of employment as misconduct? A: Yes”. I find that counsel by his line of questioning at the trial even alluded to the fact that the Claimant was facing a disciplinary action on an allegation of issuance of dud cheque which under the handbook (exh.C2) amounts to an offence that qualifies for termination of employment as misconduct. Yet, counsel, again, was heard to be arguing that no disciplinary hearing process was necessary in the circumstance of the Claimant’s exit. I disagree.

 

36.        Counsel seems to have braised off the legal implication of the evolving jurisprudence of the concept of unfair labour practice in labour relations and workplace practices, to the effect that a termination of employment resulting from misconduct amounts to dismissal, and dismissal must go with justifiable reason and false allegation amounts to unfair labour practice which ought to be compensated by award of damages, albeit punitive! 

                                  

 

 

37.        On the whole, I have formed an irresistible view that the legal status of the Claimant’s exit from the employment with the Defendant bank is that of dismissal and not termination. The issue (1) is therefore, resolved in favour of the Claimant, to the effect that from the evidence on record, the Defendant did not just terminate the Claimant’s employment but actually dismissed him, in a manner akin to summary dismissal under Art.11.5 (k) of the Employee Handbook (exh.C2).  I so hold.

 

38.        On issue (2)-Did the Claimant prove his case and entitled to the reliefs sought: Claimant is seeking three declaratory reliefs and one substantive relief, in addition to an alternative substantive relief, all anchored on wrongful dismissal and consequential damages. The Defendant however, disagreed that there was any wrong doing or consequence flowing from the manner by which the Claimant was relieved of his employment. The crux of the Defendant’s counsel’s submissions is to the effect that the Claimant had not made out a good case to support the reliefs he claimed, as the case was anchored on a wrong premise. That his employment was said be terminated on ground of issuance of dud cheque, whereas, the reason given on the face of the termination letter is simply that “your services are no longer required in this organization”. And having paid the claimant the stipulated ‘one month salary in lieu of notice’, the Defendant had complied with Art. 4.10 of the Employee Handbook (exh.C2), even though the Claimant later under cross-examination denied not receiving the payment. Counsel pointed that as the issue of dud cheque was resolved in favour of the Claimant, there was no further disciplinary procedure to comply with. Counsel also argued that it is trite adjudicatory principle that declaratory reliefs sought cannot be granted even in the face of admission.

 

39.        Yeah, it is trite that the Claimant seeking declaratory relief has an onerous burden of proof to establish same, as it has been judicially resolved that even admission of the Claimant’s pleadings by the Defendant is not enough to anchor and sustain relief bordering on declaration of right. As guided in Dim v. Enemuo [2009] 10 NWLR (Pt. 1149) SC 353@Pp.380-381, Paras.F-D, to ascertain if the Claimant satisfied this requirement, the pertinent question remains, did the Claimant lay sufficient and cogent evidence to support his declaratory relief?

 

 

 

 

 

40.        Reliefs 1 and 3 are to be taken together, as they are both declaratory reliefs and relate to the claim of wrongful termination/dismissal of the Claimant, while Reliefs 2 and 4 are to be taken together, as they deal with claim of payment of entitlements and consequential damages. The Alternative Relief is to be considered after due review of the Main Reliefs, and applicable only if it becomes necessary when such option opens up in the circumstance of the suit.

 

41.        The Claimant’s Relief 1 is for “A Declaration that the termination and or dismissal of the Claimant was unlawful and illegal”. Relief 3 seeks for “A Declaration that the Claimant is entitled to and be paid his salaries, entitlement and emolument from the period he was unlawfully and illegally dismissed from his employment until judgment is given in this suit”. In determining wrongfulness or otherwise of dismissal of an employee, the law is that the onus of proof is on the Claimant employee, who alleges that his dismissal is wrongful/unlawful to prove the wrongfulness/ unlawfulness of the dismissal. Thus, it is the duty of the Claimant to show by credible evidence how the alleged dismissal was wrongful. In Ndili v. Akinsumade [2000] 8NWLR (Pt.668)293;(2000) LPELR-6910(CA), Pp.65-66, Paras.D-A, the court set out the test to adopt to determine whether an employee was wrongfully/unlawfully dismissed, thus:

The test of whether the dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the dismissal conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rules of natural justice so as to render the formal compliance a travesty

 

42.        Applying the test on evidence on record, the Claimant, in his evidence, frontally challenged the dismissal as wrongful on ground of the Defendant’s failure to observe due process of disciplinary hearing set out under Article 11 (Disciplinary Procedure) of the Defendant’s Employee Handbook (exh.C2). Essentially, the Claimant relied on the Defendant’s failure to justify the basis of his dismissal and non-compliance with the disciplinary procedure set out in the Defendant’s Employee Handbook (exh.C2, in anchoring his claims for entitlements and damages suffered by other wrongful acts of the Defendants associated with his wrongful dismissal. I have earlier in the Judgment while considering issue (1), held that the legal status of the Claimant’s exit was Dismissal as against Termination. Thus, what is called into question in this issue is, whether the said dismissal was wrongful?  

 

43.         Learned Claimant’s counsel, in his submissions, had argued that the Claimant’s dismissal was wrongful. In paras. 3.2-3.3 of his Final Written Address, counsel maintained that “the combined effect of exhibits C9, C4, C5 and C7 point to no other conclusion than that the Claimant was wrongfully dismissed. For purposes of emphasis, Exhibit C9 is issuance of dud cheque query dated 14/7/2017 emanating from the Defendant to the claimant; Exhibit C4 is a memo suspending the Claimant from his employment for issuance of dud cheque dated 05/09/2017; Exhibit C5 is letter purporting to terminate the appointment of the Claimant by the Defendant dated 15/09/2017. All these events happened in quick succession and in a space of two months between issuance of query to the dismissal of the Claimant”. “To add salt to injury the Defendant published Exhibit C7 showing the photograph of the Claimant and the reason for his dismissal”, counsel stoutly submitted.

 

44.        Claimant had presented evidence along the line that his exit was dismissal and that it was wrongful since the basis of his dismissal was not justified and that he was not subjected to appropriate disciplinary procedure set out under Art.11 of exh.C2, which though was activated by serving him query (exh.C9) and suspension for act of misconduct (exh.C4), but which was abandoned half way and followed with termination letter (exh.C5) instead. I find that this state of evidence on record was not disputed by the Defendant. The Defendant, instead, in both its pleadings in defence (paras.3 and 4 of the Statement of Defence) and its counsel’s submissions, maintained that the Defendant was not obliged to provide further explanation other than that the Claimant’s ‘services were no longer required’, and also that  observance of the disciplinary hearing process set out under Art.11 of exh.C2, was not necessary as the Claimant’s employment was terminated merely as his ‘services were no longer required’, and that the allegation of misconduct by issuance of dud cheque was resolved in Claimant’s favour. Hear the learned counsel at para.25 of his Written Address:My Lord, when an issue is resolved in favour of a culprit there will be no requirement for further disciplinary procedures against him”, learned counsel thundered!  

 

45.        I have taken a holist review of the relevant provisions of the Employee Handbook (exh.C2), dealing with the disciplinary procedure (Art.11 (a)-(e) and sanctions (suspension-Art.11.4; summary dismissal-Art.11 (k). The disciplinary procedure and sanctions therein is to the effect that “management reserves the prerogative to discipline erring staff in accordance with the Bank’s laid down rules and regulations”, and disciplinary procedure set out is activated by issuance of a query ,  reply to query, and if it involves high gravity of offence (such as acts of misconduct), the case could be referred to Head Office Disciplinary Committee or Human Capital Management Disciplinary Committee or the Regional Disciplinary Committee, depending on location or grade of the affected employee(See: Art.11(a)-(c). By Art. 11(d), any employee being a first offender should be given opportunity to appear before the Disciplinary Committee, and if the committee sits outside the employee’s location, the Bank will bear the employee’s cost, which includes transportation, accommodation and feeding during the visit.

 

46.        Art.11 (e) provides for appeal for an aggrieved employee to upturn the adverse decision reached. By Art.11.4, an erring employee may be placed on suspension with half pay (basic salary and full housing, utility and transport allowance). Also, by Art.11.4(a)(b), an employee involved in serious misconduct is to be suspended for a period not exceeding six months during which period investigation shall be concluded, but will remain suspended until the investigation is conclude in the event that the investigation exceeds six months. Art.11.4(c) requires that such a staff under suspension shall nevertheless be reporting to work for 2 hours every working day and sign attendance for compliance.

 

47.        Dealing with outcome of the investigation is provided for under Art.11.4 (d), which states: “if after investigations he/she is exonerated, he /she shall be recalled; the balance of his /her basic salary any other entitlements shall be paid from the date of suspension. If however, the employee is found guilty he/she shall be dealt with in accordance with the Bank’s disciplinary procedure”. By Art.11.4 (e), an employee suspected of criminal offence by the police, may also be suspended. Art.11.5 deals with summary dismissal for certain acts of misconduct, including ‘any other acts of misconduct’ (Art.11.5 (k). The consequence of summary dismissal, being that “no notice shall be given in the case of summary dismissal. In the event of summary, all terminal benefits shall be forfeited to the Bank”.

 

48.        From the gamut of the afore-stated provisions of the Defendant’s handbook (exh.C2) guiding the employment relationship of the parties, disciplinary procedure involves issuance of query, reply, suspension and declaration of the outcome of investigation and sanction, including summary dismissal. It is on record, as shown in exh.C9 (query) and exh.C4 (suspension for act of misconduct) that the Defendant had invoked the disciplinary procedure set out under Art.11, but instead of fully complying with the stipulated requirement of disclosing the outcome of the investigation that led to the suspension of the Claimant, the Defendant truncated that process and quickly terminated the Claimant’s appointment.

 

49.        Contrary to what learned Defendant’s counsel would want the court to endorse as mere termination of employment, I had earlier held that such termination amounts to summary dismissal, as neither notice was issued to the Claimant nor his earned terminal benefits paid, which is the consequence of sanction of summary dismissal as stated in Art.11.5, to the effect that: “no notice shall be given in the case of summary dismissal. In the event of summary, all terminal benefits shall be forfeited to the Bank”. .

 

50.        Learned counsel for the Defendant had also argued that the Claimant was paid ‘salary in lieu of notice’ to show that his  termination was in line with the contract of employment (exh.C2), as his ‘services were no longer required’. The Claimant had denied being paid any ‘salary in lieu of notice’ or any sum as his terminal benefit for 29 years of his service with the Defendant bank. The Defendant, instead of providing evidence of such payment, believed it is the duty of the Claimant to so do, as being part of his burden of proof. A burden, of which, according to the Defendant’s counsel, the Claimant had failed to discharge, and therefore not entitled to his claims. This line of submission by the learned Defendant’s counsel smacks of clear understanding of inter-play of role of parties in placing and discharging of  burden of proof in civil trial, and tends to misplace burden of proof in civil claims, particularly employment-related civil claims, as in the instant suit.

 

51.        I have had a similar scenario in Fatai Oyekunle v. Abel Sell Ltd & Anor (Suit No. NICN/LA/189/2016, Judgment delivered on January 11, 2019, per Ogbuanya,J), in which, after reviewing submissions of counsel, it was held @ P.8 , thus:

In my considered view, the issue as to payment or non-payment of salary where employment relationship is already established is a particular fact, which imposes evidential burden of proof on the employer, being a party though not bearing the general burden of proof, but would fail if no evidence is led to establish the controverted fact of payment of salary. See: S.136 (1) (2) Evidence Act 2011; M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058) CA451@ 492-493 Para.G-C. On that note, although the Claimant has a general burden of proof to establish his claims, nevertheless, as the burden of proof in civil trial is never static but preponderates, I hold the view that it is the duty of the employer (like a debtor) to establish how a disputed payment of salary was made to an employee who denies receiving due salary at workplace or justify why the salary is withheld”.

 

 

52.        In the latter case of Elias Igbinakenzua v. First Aluminum Nig. Plc (Suit No.NICN/LA/317/2020, Judgment delivered on May 14 2021, per Ogbuanya,J),(Elias Igbinakenzua’Case), I did restate the principle and adopted same position, being strengthened by the evolving preponderance of burden of proof in employment contract claims; a variant of civil trial, involving dispute of earned entitlement, as in the instant case.  I have no reason to tamper with my rationalized views therein. I therefore, adopt same position herein. In the  Elias Igbinakenzua’Case , @ P. 21, Para.55,  it was held thus:

To that end, I have come to the considered view that, where there is a dispute as to payment of entitlement captured in the employment contract, such as exh.C1, in the instant suit, once an employee-Claimant establishes the employment relationship and how he earned the accompanying entitlement, the evidential burden of how the said entitlement was paid becomes that of the employer-Defendant. Thus, upon the Claimant’s discharge of his burden to establish the employment relationship and how the entitlement was earned, the burden shifts to the Defendant (an employer), who has the duty/ evidential burden to establish how the remuneration/entitlement of the Claimant (an employee) was paid, and is at liberty to make relevant averments in defence and tender any evidence in proof thereof.  I so hold”.

 

53.        On that note, I hold that the Defendant has an evidential burden to prove that, it in deed paid the Claimant the alleged salary in lieu of notice and also his terminal benefits in accordance with the terms of their employment relationship, as set forth in Art.11.3 p.41 of the Employee Handbook (exh.C2). It states: “An employee whose services have been terminated shall nevertheless be entitled to one-month salary if his/her employment has been confirmed and 2 weeks salary if he/she is on probation, as payment in lieu of notice. Such employee shall be entitled to receive all accrued terminal benefits up to the date of termination of appointment”. On the other hand, the Claimant’s employment termination letter dated September 15 2017 (exh.C5), reads: “This is to inform you that your services are no longer required in this organization. You will be paid salary up to and including the date of this letter plus one month basic salary in lieu of notice. Consequently, your appointment is hereby terminated with immediate effect. Thank you..”

 

 

 

 

 

 

 

54.        From the tenor of the exh.C5, I find that payment of the one month ‘salary in lieu of notice’ to the Claimant, being a confirmed employee, was not made immediately upon the termination, but was said to be at an undisclosed future date, and no mention was made of the terminal benefits, not to talk of when it should be paid. No evidence of such payment was supplied even at the trial to discharge the evidential burden of proof on the Defendant. I find that this act by the Defendant is clearly in breach of the stipulation of the contract of employment (exh.C2), a fact which laid credence to the Claimant’s contention that he was summarily dismissed, as against the termination of employment in accordance with the terms of the employment contract, which has been the plank of the Defendant’s defence. I so hold.

 

55.        Again, a rearing preeminent question is, can there be a Dismissal without reason? An elucidated analysis of the consequential effect of Dismissal as against Termination becomes imperative in this discourse. Let me again restate that though Dismissal and Termination are both legally recognized exit pathways for employee in employment relationship, and are often misconceived as interchangeable, some key distinguishing features mark them out with divergent outcome in employment exit pathways. Termination is a contractual exit mode available to both employer and employee, and may go with or without express reason, as it is not for disciplinary purpose, but just for mere compliance with extant contract of service to bring the employment relationship to a lawful end. On the other hand, Dismissal is solely a disciplinary measure available for only the employer with consequential denial of pecuniary entitlements of employee’s earned terminal benefits and image battering; casting doubt of future employability.

 

56.        In my humble but tenacious view, for the simple reason that Dismissal has the adverse effect of taking away the employee’s earned terminal benefits, the employer is not at liberty to dismiss an employee without justifiable reason and observance of due process and fair hearing. The standard remains the same whether in statutory employment or master/servant employment governed by common law. The only difference is that unlike statutory employment where an employee can be forced on an unwilling master by reinstatement order, in the case of employee under master/servant regime, notwithstanding a finding of wrongful dismissal, the employee is not entitled to reinstatement, as that would mean foisting a servant on an unwilling master, contrary to the age-long employment canon rule-that in employment governed by common law, a servant cannot be foisted on an unwilling master, and vice versa.   I so hold.

57.        As held earlier in Valentine Nkomadu v. Zenith Bank Plc (Suit No. NICN/LA/206/2015, Judgment delivered on May 09 2019; Leonard Oyinbo v. Guiness Nig.Plc- Suit No. NICN/LA/639, Judgment delivered on Sept. 20 2019, per OgbuanyaJ,), I retain a stable view that in any kind of employment regime (be it statutory or under common law), best practice is that Dismissal must be for justifiable reason and due observance of extant contract of service and fair hearing. Accordingly, an employer who decides to dismiss the employee is not only obliged to provide reason(s) for the Dismissal but also justify the reason(s) if challenged.

 

58.        Thus, the often adopted veiled reason of ‘services no longer required’ or muted reason is not applicable to Dismissal (whether express, implied or constructive) but limited to only proper Termination done subject to and in due compliance with extant service contract in respect of service of appropriate notice period or payment of salary in lieu of notice and requisite terminal benefits.  I so hold.  

 

59.        In light of the foregoing legal prescriptions on best practice of employment and labour relations, I have taken another look at the incidents and circumstances that culminated in the exit of the Claimant from his employment with the Defendant. From the records, the Claimant had an unblemished service for 29 years, received anniversary commendation letter, but was later accused of issuing dud cheque to an unnamed third party, an allegation contained in a query, of which he replied and denied any wrong doing, as he had paid the third party through another payment mode, and it would amount to double payment to allow the earlier cheque to be paid out. He was nevertheless suspended to pave way for investigation, but few days into his suspension (about 10 days) he was served with termination letter that his services were no longer required. But then, he was neither paid one-month salary in lieu of notice nor his entitled terminal benefits for his years of service with the Defendant.

 

60.        The Defendant however disagreed that it summarily dismissed the Claimant on the basis of the allegation of issuance of dud cheque, but that what happened was termination of employment on the basis that his services were no longer required. Let me ask- did the Defendant even comply with the stipulations of its own Employee Handbook (exh.C2) on termination of employment, which it sought to rely on, to justify its actions?

 

 

 

61.        I have taken another deeper look at the said Defendant’s contract of employment with the Claimant (exh.C2) and could not see nor was shown any provision where an employee’s employment can be terminated on the basis of ‘services no longer required’. Learned Defendant’s counsel did not also confirm any provision or basis of invoking such ground for terminating the employment in such circumstance that has been adjudged to amount to summary dismissal. No reason was also advanced to justify the said summary dismissal as evidence of the outcome of the suspension pending investigation was not made available even at the trial. I take the firm stand that absence of valid and justifiable reason makes a dismissal wrongful and is liable to be so declared and set aside. I so hold.

 

62.        In respect of the scope of the Claimant’s claims for salaries and entitlements up to the time of the judgment in  his Relief 3, let me quickly point out that the law is clear that in an employment relationship governed by common law, as the instant suit, unlike statutory employment, termination/dismissal brings it to an end, even if wrongly done, as such a wrong is only assuaged in damages and recovery of outstanding arrears as at the time it was brought to an end, albeit wrongly, but not more than the exit period, for the purposes of claiming entitlement. Accordingly, the Claimant’s claims in his Relief 3 would be pruned to cover the duration of his employment up to his exit.

 

63.        On that note, I delay no further in holding that the Claimant’s Reliefs 1 and 3 succeed, to the extent that, it is hereby declared that Defendant’s Termination of Claimant’s employment amounts to Summary Dismissal which was wrongful and unjustified, and that the Claimant is entitled to payment of one- month salary in lieu of notice and his terminal benefits, as well as any arrears of his salary, at the point of exit from the Defendant’s employment. I so hold.

 

64.        The Claimant’s Reliefs 2 and 4 deal with claim for damages. Relief 2 asks for a “Declaration that the Claimant has suffered damages as a result of the acts of the Defendant” and Relief 4 is for “the sum of N60,000,000 (sixty million naira) being damages for unlawful and  illegal termination/dismissal” .  Learned Claimant’s counsel had canvassed arguments in support of these reliefs, citing and relying on J. AIrem v. Obubra District Council &Anor (1960) S.C.N.L.R 70, to the effect that the totality of acts of dismissal of the Claimant carries with it infamy and deprived him of benefit he ought to have received as his terminal benefits not paid to him by the Defendant.

 

65.        Counsel had hauled in a number of authorities, such as: Union Bank Ltd v. Ogboh [1991]1NWLR (Pt.167)369; Steyer (Nig) Ltd v. Gadzama [1995]7NWLR (Pt.407)305 @337, and contended that where dismissal was done without following the rules, the employee is entitled to damages, particularly where the act of the dismissal was done in a grossly irresponsible manner. Counsel cataloged other basis of the Claimant’s claims in Reliefs 2 and 4, as he has suffered damages in consequence of the Defendant’s act against him in wrongfully dismissing him, withholding his terminal benefits and not paying him salary in lieu of notice. Counsel refers to exh.C7 (photo publication of the Claimant with reason for his exit as based on issuance of dud cheque) portraying him as a criminal. Emphasis was also laid on exh.C8 being his cheque meant for payment of his child’s school but wrongfully dishonoured by the Defendant, and Defendant’s act of blocking access to the Claimant’s own personal accounts domiciled with the Defendant, all to punish him.   

 

66.        From the record, I find that the Defendant did not frontally dispute the allegation of its blocking the Claimant’s account and dishonouring his cheque meant for payment of school fees of his child. Defendant’s counsel only had grouse with the exh.C7, the publication carrying the Claimant’s photo card wherein he was listed among staff that exited the Defendant’s employment, and his reason for exit was issuance of dud cheque, which is act of misconduct. Although the document was tendered and admitted as an exhibit without objection from the Defendant’s counsel during trial, yet the learned Defendant’s counsel took time and space to object to its admissibility in his Final Written Address. Counsel had argued that the said document admitted in evidence and marked as exh.C7 offends S.83 (3) of Evidence Act 2011 as it was made while the suit was pending by a person interested in the suit, and not properly procured as it was said to have been snapped by the Claimant when it was shown to him by one staff of the Defendant, and such act renders the document inadmissible as it amounts to hearsay evidence. Counsel also argued that the said document was not signed contrary to S.83 (4) of Evidence Act.

 

67.        Claimant’s counsel however, disagreed, contending that the submissions of the learned Defendant’s counsel does not represent the true position of the law, as the said document was authored by the Defendant in ordinary course of business, to show persons who were no longer in their employment for offences committed by them. Counsel argued that the document was pleaded and tendered with due compliance with S.84 of Evidence Act, being computer-generated evidence. Citing and relying on N.S.TF v. Klifco (Nig) Ltd (2010)All FWLR (Pt.534)77, ratio 4, counsel submitted that the said document forms record of the Defendant and such does not come within the scope of ‘person interested’ under S.83(3) Evidence Act. Counsel urged the court to discountenance such objection by the Defendant’s counsel, as ill-conceived.

 

68.        I earlier noted that learned Defendant’s counsel himself participated in the trial proceedings, but did not raise the objection during trial, even though the opportunity was there, as he said that he had no objection while the said document was tendered for admissibility. Perhaps, the learned Defendant’s counsel had reviewed the proceedings and came up with expunging option after admission of the evidence at the trial proceedings. Such is allowed, but on strict review of whether such document is such that is inadmissible in law, thus, despite its admission in error, can still be expunged from the records. This principle may have emboldened learned counsel for raising this admissibility objection at the stage of Final Written Address. I would oblige him, but on strict legal condition that the document already admitted and marked as exhibit is shown to be inadmissible in law ab initio.

 

69.        Counsel had contended that the said exhibit C7 is inadmissible as it amounts to hearsay evidence, having been made while the suit was pending by a person said to be an interested person in the suit, and it does not matter which of the parties made it. I have taken a closer look at the said exh.C7. It was dated 11/1/2018. This suit was filed on 22/12/2017. It came after the suit was commenced, but who owns the document and for what purpose was it made?  I find that it is Defendant’s own document which it made while aware that it is in court and contesting the manner by which the Claimant exited its employment. The Defendant made it yet its counsel was heard arguing that it was not signed, whereas it is a notice issued by the Defendant making a public notification of staff that left its services and the manner by which they left. The Claimant’s name and photogragh was displayed with other staff whose services were relieved for various infractions. Claimant was said to have been involved in ‘Gross Misconduct-Issuance of dud cheque’ and his employment was terminated. A remarking statement was made on the said document, which reads: “this negative publicity would serve as a deterrent to other staff from involvement in related infractions...”

 

 

 

70.        There is no doubt that this document already admitted in evidence as exh.C7 is not only intrinsically admissible but also relevant to the facts in issue in this suit. The Defendant who made the said document cannot turn around to object to its admissibility, albeit, at Final Address stage, as the said document suffers no legal disability. No provision of the Evidence Act 2011 permitted such conduct, which is not covered by the said S.83(3)(4) heavily relied on by the learned Defendant’s counsel. I find that the said exh.C7 does not constitute hearsay evidence and is not one of such documents legally classified as document made by an interested person during the pendency of a suit. On that note, the admissibility objection raised by the learned Defendant’ counsel is hereby overruled as misconceived in law. I so hold.  

 

72.        Going forward, I have reviewed the totality of the conducts of the Defendant against the Claimant in the course of his exit from the employment with the Defendant bank. I find that the Defendant had subjected the Claimant to some reprehensive conducts, classified as unfair labour practice in modern workplace practice. Such acts shown from the record are that: Claimant was suspended from office pending investigation of allegation of issuance of dud cheque, but no outcome was communicated showing whether he was found guilty or exculpated as stipulated in the contract of employment. Claimant was summarily dismissed without justifiable reason and proven allegation of issuance of dud cheque, but which was disguised as termination of employment, yet without paying him ‘salary in lieu of notice’ and terminal benefits as contained in their contract of service. Claimant’s personal bank account was blocked and he was denied access to his account domiciled with the Defendant without any justifiable reason or pursuant to order of court. Claimant’s personal cheque was returned and dishonoured while he had funds in his account, while the cheque was meant to pay for his child’s school fees.

 

73.        I find that these catalogued  awful acts of the Defendant against the Claimant constitute unfair labour practice, of which this court is empowered to adjudicate on, courtesy of the provisions of S.254C(1)(f) of the Constitution of the Federal Republic of Nigeria (as amended). This Court frowns at acts of unfair labour practice being unconscionable and reprehensible conduct against an employee at work place, and having been repositioned in its jurisdictional ambit, is poised to curtail same whenever and howsoever it rears up at workplace.

 

74.        In Leonard Oyinbo v. Guinness Nig. Plc (Suit No. NICN/LA/639/2012, Judgment delivered Sept.20 2019, per Ogbuanya.J), it was held thus: “I hasten to add that an employer who persists to practice unfair labour practice at workplace risks liability for compensation of victimized employee”. I adopt this view herein. This compensation is by way of award of consequential relief of general damages. It is trite that general damages are awardable per se upon breach, and is compensatory in nature in monetary form, as assessed by the court in exercise of its equitable jurisdiction to compensate the injured party by the act of the breach of contract or injury inflicted.

 

75.        The rational for award of damages in litigated matter of this kind, has been further elucidated in Shukka v. Abubakar [2012] 4 NWLR (Pt.1291) CA497, when the court stated: “The basic object of award of damages is to compensate the plaintiff for the damage or injury or loss he had suffered as a result of the action of the defendants, premised on the guiding principle of restitution in interregnum- that is, putting the plaintiff in a position in which he would have been, if he had not suffered the wrong for which he is being compensated”.  In N.A.C.B Ltd v. Achagwa [2010]11 NWLR (Pt.1205) CA 339 @369. Paras. C-D, the court clarified how general damages are determined thus: “One of the characteristics of general damages is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of”.  See also: Odumosu v. A.C.B Ltd (1976)11SC55; Samouris v. Maja [1996]7NWLR (Pt.460)336; Union Bank of Nigeria v. Alhaji Adams Ajabule & Anor (2011) LPELR- 8239(SC).

 

71.         Thus, in the instant suit, apart from general damages awardable for wrongful dismissal, unfair labour practice attracts compensation for the victimized staff as a way to assuage the wrongful acts. I have earlier taken the position that where an employer wrongly dismissed his employee in an employment governed by the common law master/servant, as in the instant case, the remedy can only be assuaged in damages and nothing more. See: U.B.N v. Ogboh [1995]2NWLR (Pt.380)647.

72.         The measure of damages for wrongful dismissal has been guided by two regimes of legal principles for award of damages in employment claims; one limiting the entitlement to the period of notice not complied with as (in Olatunbosun v. N.I.S.R Council (1988) 1NSCC (1025)188) (Olatunbosun’Case) and the other that recognizes the sensitivity of the sector of the economy involved and the stigma attached to dismissed employee (as in British Airways v. Makanjuola [1993]8NWLR (Pt.309)276 (Makajuola’Case). Given the circumstances of this instant case, I find that it is suitable for application of the principles in the Makajuola’Case, for the fact that the banking sector is a very sensitive sector of the economy and a regulated industry where a dismissal from employment for misconduct is a dent on the integrity and employability of the dismissed employee, who is left with the stigma and bears the challenge of career cleansing.   In the Makajuola’Case (supra) @P.289 Paras.C-D, it was held that:

The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of the alleged malpractice. If wrongful termination of employment is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of required notice. But if it is due to the later i.e malpractice, then such a termination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period the notice was required”.

 

73.        In his pleadings, witness statement on oath and oral testimony at the trial, the Claimant testified, and the Defendant did not dispute, how he served the Defendant for about 29 years meritoriously, received commendation for excellent services in the anniversary message to him, but was sooner shown the way out in ignominy of unproved allegation of issuance of dud cheque, and without compliance with the extant conditions of service. I note that the workplace herein is banking industry, which is highly regulated and sensitive in terms of character expectation and code of conduct of staffers and management, such that any slightest dent stains the integrity and employability over disgraceful exit on account of allegation bordering on fraud/crime.

 

 

 

 

 

74.        In the circumstance, the Claimant’s Reliefs 2 and 4 succeeds to the extent that it is hereby declared that the Claimant has suffered damages as a result of the acts of the Defendant, for wrongful dismissal on false allegation of issuance of dud cheque, withholding of earned terminal benefits and other acts of unfair labour practice by the Defendant against the Claimant. Accordingly, Defendant is hereby ordered to compute and pay to the Claimant his withheld terminal benefits and one month ‘salary in lieu of notice’, in line with the terms of the employment contract. The sum of N20,000,000.00 (twenty million naira) is hereby awarded in favour of the Claimant against the Defendant as general damages for wrongful dismissal and acts of unfair labour practice against the Claimant. I so hold.

 

75.        Having dealt with the Main Reliefs which have succeeded, the Alternative Relief becomes stale. Same is hereby discountenanced. I so hold.

 

76.        For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:

 

1.             Reliefs 1 and 3 succeed, to the extent that, it is hereby declared that Defendant’s Termination of Claimant’s employment amounts to summary dismissal which was wrongful and unjustified, and that the Claimant is entitled to payment of one- month salary in lieu of notice and his terminal benefits, as well as any arrears of his salary, at the point of exit from the Defendant’s employment.

 

2.             Reliefs 2 and 4 succeed, to the extent that, it is hereby declared that the Claimant has suffered damages as a result of the acts of the Defendant, for wrongful dismissal on false allegation of issuance of dud cheque, withholding of earned terminal benefits and other acts of unfair labour practice by the Defendant against the Claimant. Accordingly, Defendant is hereby ordered to compute and pay to the Claimant his withheld terminal benefits and one month ‘salary in lieu of notice’, in line with the terms of the employment contract. The sum of N20,000,000.00 (twenty million naira) is hereby awarded in favour of the Claimant against the Defendant as general damages for wrongful dismissal and acts of unfair labour practice against the Claimant.

 

 

 

3.             The Main Reliefs having succeeded, the Alternative Relief becomes stale. Same is hereby discountenanced.

 

4.             In line with the Rules of this Court, cost in the sum of N200, 000.00 (two hundred thousand) is hereby awarded in favour of the Claimant against the Defendant.

 

5.             The sums of money awarded and due in this Judgment shall be payable to the Claimant by the Defendant within 2(two) months of this Judgment, failing which it attracts 10% interest rate per annum until fully liquidated.

 

77.         Judgment is entered accordingly.

 

 

………………………………………..

HON. JUSTICE N.C.S OGBUANYA

JUDGE

 

30/09/21