IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 14TH JUNE 2023                            SUIT NO:   SUIT NO: NICN/IB/57/2018

 

BETWEEN   

Mrs Afusat Mojisola Fagbemi                                                               Claimant

 

AND

 

1. Access Bank Plc

2. Economic and Financial Crimes Commission                             Defendants

REPRESENTATION

S. A. Akinrele with O. Afams for the Claimant

A. M. Pade-Aderibigbe with O. A. Wahab for the 1st Defendant

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant by her General Form of Complaint along with all requisite frontloaded processes filed on 2/8/18 and by her Amended General Form of Complaint dated 21/10/19 along with statement of facts, witness statement on oath, list of witness as well as copies and list of documents to rely on at trial and sought the following reliefs against the Defendants –

 

A. A Declaration that the suspension of the Claimant by the 1st Defendant for a period of six weeks on the allegation of involvement in “Fraudulent transfer from customer’s account via pay with capture and access Mobile Platforms” as contained in the 1st Defendant’s letter of suspension dated August 18, 2016 without payment of half her salary as directed by the provisions of paragraph 13.3.1 of the Access Bank Staff Handbook and the eventual termination of her employment vide the letter of Termination dated October 14, 2016 without justifying the alleged fraudulent act are wrongful.

B. An Order directing the 1st Defendant to pay the Claimant all her full salaries, benefits and other emoluments incidental to her employment with the 1st Defendant including all the increments accorded to all other staff of her status from the date of her wrongful suspension on 18th of August, 2016 till the date of judgment in this suit.

C. An Order directing the 1st Defendant to pay the Claimant all her full salaries, benefits and other emoluments incidental to her employment with the 1st Defendant including all the increments accorded to all other staff of her status from the date of her wrongful suspension on 18th of August, 2016 till the dated of judgment in this suit.

                                    ALTERNATIVE TO (B) AND (C) above

Payment of the sum of One Hundred and Fifty Million Naira         (=N=150,000,000.00) by the 1st Defendant to the Claimant, a physically challenged dutiful officer, as compensation for wrongful suspension and termination of her employment, since year 2016 which had placed the Claimant in a very difficult position of working and continuing to make progress in her career as a Banker in Nigeria and placing her under psychological trauma by presenting her to the public and the banking industry as a fraudulent person.

D. The sum of =N=10,000,000.00 (Ten Million Naira) as damages and cost    of the litigation in favour of the Claimant against the 1st Defendant.

E. An Order directing the 2nd Defendant to release all the documents of the Claimant including her international passport in the custody of the 2nd Defendant to the Claimant.

F. 15% interest on the total judgment sum made in favour of the Claimant against the 1st Defendant from the date of judgment till full payment or liquidation of same.

 

2.         The 1st Defendant caused an appearance to be entered on its behalf and by its defence processes of 8/3/21 denied the claims and joined issues with the Claimant. The 2nd Defendant did not file any process in defence of this case.

 

2.         Case of the Claimant

3.         The Claimant opened her case on 15/12/2020 when she testified in chief as CW1. She adopted her witness deposition of 21/10/19 and her further statement on oath of 8/11/21 as her evidence in chief and tendered 9 documents as exhibits. The documents were admitted in evidence and marked as Exh. MF1-Exh. MF9.

 

4.         The case of the Claimant in brief is that she was at all material time an employee of the 1st Defendant; that she was employed by the 1st Defendant in 2012 following the merger/assumption of the Intercontinental Bank, her erstwhile employer; that her appointment was confirmed in 2013; that by a letter dated 18/8/16, the 1st Defendant placed her on suspension on the reason stated there as involvement in fraudulent transfers from Costumer’s Account via pay with captures an Access Mobile Platforms; that she was taken before the Economic and Financial Crimes Commission for investigation and prosecution; that while investigation was ongoing, the 1st Defendant completed the process started by the suspension letter and terminated her appointment. Being aggrieved with the procedure adopted in suspending her for a disclosed reason leading to the termination of her employment without justifying the alleged reason and without following the procedure set out in the Access Bank Staff Handbook, the Claimant approached this Court for redress.

 

5.         Under cross examination by the 1st Defendant, CW1 testified that if she wanted to resign she needed to give a month notice; that if she wanted to leave immediately she would have to pay a month’s salary in lieu; that the 1st Defendant is to do same vis versa; that the Bank credited her Account with 3 months’ salary in lieu of notice of termination; that summary dismissal does not entitle her to any payment in lieu; that there was an allegation that she failed to comply with the procedure on BVN linkage; that she is not aware that the Bank lost money as a result of the said failure; that she does not know how much money was involved; that according to 1st Defendant Handbook failure to comply with Bank procedure is a serious misconduct; that the first  directive on BVN linkage was given in November 2015; that the directive was sent to all staff including herself; that a Disciplinary Committee was set up to investigate her involvement; that at the Panel sitting, she was given a Directive to read, but not that of 2015 and that if a staff of the Bank fails to comply with the Directive on BVN linkage, it amounts to gross misconduct.

 

6.         The witness added that the transaction that led to disciplinary committee investigating her happened in 2016; that no instruction was given to her in 2015 respecting finger print verification; that there was no instruction in 2015 that the best and only 100% way to validate BVN is by finger print; that in 2015 there was instruction for BVN verification but not on linkage; that BVN investigation and linkage fall under Banking processing and procedure; that according to Exh. MF9 p. 39 violation of Bank processing and procedure attracts summary dismissal; that the Bank is aware of her physical challenge and that her employment was terminated and 3 months’ salary in lieu was paid into her account.

 

3.         Case of the Defendants

7.         The 1st Defendant called its lone witness on 18/1/23. The witness, one Olufemi Oladele adopted his witness deposition of 24/3/21 as his evidence in chief and tendered 4 documents in evidence. The documents were admitted in evidence and marked as Exh. D1- Exh. D4.

 

8.         The case of the 1st Defendant in brief from the pleadings filed and evidence led is that the Claimant its former employee failed to comply with the established banking procedure respecting BVN linkage; that the failure resulted into huge financial loss to it; that the Claimant was investigated and faced an investigating panel which found her culpable; that Claimant’s employment was terminated after due process had been complied with and was paid 3 months’ salary in lieu instead of a month’s salary she was ordinarily entitled to and that the 1st Defendant is not in any way liable to the Claimant in this suit.

 

9.         DW1 while under cross examination by the Claimant on 18/1/23 stated that he joined the 1st Defendant on 13/7/09; that he knew the Claimant in person as a staff of the 1st Defendant; that he does not know if the Claimant was ever issued any query either before or after the incident leading to this case; that Moses Itodo was the victim of crime who reported the Claimant to the 2nd Defendant; that he does not know the outcome of the 2nd Defendant’s investigation but that he knows the 1st Defendant suffered loss of =N=31 Million by the fraud perpetrated on Moses Itodo; that he does not have anything in Court to support the said loss; that he was not a member of the Panel that investigated the Claimant and that he got the information from the Report of the Panel as admitted.

 

4.         Final Written Addresses

10.       The 1st Defendant filed its 14-page final written address dated14/3/23 on 15/3/23. In it, learned Counsel set down a lone issue for determination thus –

 

Whether the Claimant’s case against the 1st Defendant has any merit.

 

11.       Arguing this lone issue, learned Counsel submitted that as a general rule in an employer/employee relationship, both parties reserve the right to terminate the employment contract once the required notice or payment in lieu thereof to terminate is made; that the rule is based on the principle of confidentiality between master and servant which cannot continue in the absence of mutuality citing Iwuoha v. Mobil Producing Nigeria Unlimited (2011) LPELR-4477 (CA) & Union Bank Plc v. Salaudeen (2017) LPELR-43415 (CA). Counsel submitted that by Exh. C1, no reason was given for the termination of the employment of the Claimant; that the Claimant was paid three months’ salary in lieu of notice which payment was confirmed by the Claimant; that the 1st Defendant was kind enough to the Claimant to have treated her as a key officer of the Bank so as to be entitled to 3 months’ pay in lieu of notice; that the Claimant admitted under cross examination that she was aware of the banking procedure which she violated and which amounts to gross misconduct within the meaning of Exh. D4; that the Claimant did not controvert or challenge Exh. D3 which is the minutes of 1st Defendant’s Disciplinary Committee citing Ehinlanwo v. Oke (2008)16 NWLR (Pt. 1113) 357; that the Claimant cannot deny being caught by the content of Exh. D2 which gave directive on BVN linkage and which procedure the Claimant failed to follow in the incident leading to the termination of her employment. Learned Counsel prayed the Court to hold that the Claimant failed to prove her case against the 1st Defendant and that same should be dismissed. Counsel further submitted that the 2nd Defendant was only carrying out the duties conferred on it and that if the Claimant desires to retrieve her international passport she knows what to do. Counsel urged the Court to dismiss the case of the Claimant against the 1st Defendant.

 

12.       The final written address of the Claimant was dated and filed on 26/4/23. In it, learned Counsel canvassed a lone issue on behalf of the Claimant as follows –

“Whether the 1st Defendant is justified in the way and manner it suspended the Claimant and eventually terminated her employment without justifying the reason adduced and without adhering to the terms and conditions of the Bank’s Condition of Service as contained in the Access Bank Staff Handbook”.

 

13.       Arguing this lone issue, Counsel submitted that generally under the Common Law, a private employer has the power to hire and fire without adducing any reason for doing so the only exception being that where an employer gives reason leading to the termination of employment, the employer must justify the reason given citing Institute of Health, Ahmadu Bello University Hospital Management Board v. Anyip (2011)12 NWLR (Pt. 1260) 1 at 19; that in the instant case, the Defendant merely terminated the employment of the Claimant for the reason disclosed in her letter of suspension without justifying same; that by the modern approach of Court the Defendant is bound to give the reason for terminating an employment citing Aloysius v. Diamond Bank Plc (2015)58 NLLR 92. Counsel submitted further that the suspension and eventual termination of the employment of the Claimant were wrongful to the extent that the 1st Defendant carried them out without following the processes set out in its Conditions of Service which specifically spelt out how a staff may be disciplined; that the 1st Defendant failed to comply with paragraph 13.3 of Exh. D4 (Access Bank Plc Staff Handbook, 2013) which presupposes that a staff would only be suspended where he/she fails to provide a satisfactory answer to a query but that in the instant case the Claimant was never issued any query by the 1st Defendant; that contrary to the provision of paragraph 13.3.1 of Exh. D4, the Claimant was not paid half of her salary while the investigation was ongoing; that the Claimant was never indicted by the disciplinary committee set up as no wrong doing was attributed to her. Counsel added that assuming Exh. D2 was in existence at the material time to this case, there is nothing on the exhibit to indicate that the Claimant was in the loop of personnel that it was sent to; that her name was not stated on it as a recipient.

 

14.       Learned Counsel submitted that in so far as the material contents of the Written Statement on Oath of the DW1 and Exh. D3 tendered by the witness, all of which were not based on the personal knowledge of the witness are to establish the truth of the testimony, they amount to hearsay evidence citing Uteh v. State (1992)2 NWLR (Pt. 223) 257; that there is no fact on record substantiating any loss by the 1st Defendant to justify any punishment meted out to the Claimant and that although the Claimant was paid 3 months’ salary in lieu of notice, she has not till date been allowed access to her salary account domiciled with the 1st Defendant. Counsel prayed the Court to restore the Claimant to her legitimately deserved position in the Banking industry and in alternative grant the Claimant compensation akin to aggravated damages to give the Claimant an ease of life and assuage her wounded soul and image citing Multichoice (Nig) Limited v. M.C.S Ltd Gte (2020)13 NWLR (Pt. 1742) 415. Finally, learned Counsel prayed the Court to grant the main reliefs sought or the one in the alternative.

 

5.         Decision

15.       The brief facts as this case as revealed in the pleadings filed and evidence led by the parties are that the Claimant, Mrs. Afusat Mojibola Fagbemi, a former employee of the 1st Defendant was accused of some failings in the discharge of her duties as a Branch Manager back up to the 1st Defendant. She was alleged to have failed to comply with some established banking procedures respecting linkage of customers BVN. The said failure was alleged to have resulted in a loss of about =N=31 Million to the 1st Defendant as a result of the fraud perpetrated on the account of one Mr. Itodo a customer of the 1st Defendant. The Claimant was placed on suspension by Exh. MF3 while a Disciplinary Committee was set up to investigate the involvement of the Claimant. Eventually, the employment of the Claimant was terminated by Exh. D1. The Claimant alleged failure of the 1st Defendant to comply with its Conditions of Service in events leading to the termination of her employment and approached this Court seeking the reliefs as contained in her statement of facts. The grouse of the Claimant against the 2nd Defendant is that on the prompting of the 1st Defendant the 2nd Defendant arrested and detained the Claimant and seize her international travel document. It is the argument of the 1st Defendant that although by the infraction of the Claimant, the Claimant ought to be dismissed it however was magnanimous by merely terminating her employment and still paid her 3 months’ salary in lieu of notice instead of just a month salary to which she was ordinarily entitled.

 

16.       I have read and understood all the processes filed by the learned Counsel on either side on behalf of the parties. I listened attentively to the testimonies of the witnesses called at trial and watched their demeanor. I, in addition, carefully evaluated all the exhibits tendered and admitted. Having done all this, I set down these issues for determination thus -

1.         Whether in the circumstances of this case the termination of the employment of the Claimant by the 1st Defendant is wrongful.

2.         Whether the Claimant has proved her case against the Defendants to be entitled to the reliefs sought or some of them.

 

17.       Respecting the first issue set down for determination, the burden is on an employee who contends that the termination of his employment is wrongful to adduce cogent and credible evidence in support of the assertion. It is therefore imperative for the Claimant in the instant case to bring to the fore who has the power to terminate her employment; the manner in which the employment can be terminated and how the employer failed in the circumstances to comply with same. Usually, the terms of engagement between the parties are crucial for the Claimant to exhibit and then draw the attention of the Court to the failure of the employer to comply with these terms as relate to the termination of her employment.

 

18.       In First Bank Plc v. Ibrahim Sani Momoh (2020) LPELR-51517(CA), Monica  Dongban -Mensem ,JCA as he then was (now PCA) stated it clearly that -

"An employee seeking a relief on the grounds that the termination of his employment was wrongful bears the onus of placing the terms and conditions breached before the Court and proving same. See IWUCHUKWU V. NWIZU ANOR (1994) LPELR-1566 (SC). The principle guiding the grant of reliefs is simple, any party seeking such relief must not only plead specifically but also lead evidence upon which the relief is either granted or denied”.

 

19.       Now, how has the Claimant adhered to the injunctions of Dongbam – Mensem PCA  as pointed out in the above decision? The Claimant in proving her case tendered Ex. MF9 as containing the terms and conditions of her engagement by the 1st Defendant. That exhibit is the Defendant’s Staff Handbook 2013. The Claimant drew my attention to paragraph 13 of the exhibit in particular and argued that the 1st Defendant failed to comply with the provisions of that paragraph. Now, paragraph 13.0 of Exh. MF9 deals with Disciplinary Roles and Procedures. Among others, the paragraph deals with issues of Minor Offences (13.1), Serious Offences (13.2), Suspension (13.3), Suspension During Investigation (13.3.1) and Summary Dismissal (13.4). Part of the argument of the Claimant is that her suspension was more than 2 weeks in contravention of paragraph 13.2 of Exh. MF9. That paragraph states that –

“Any employee who fails to provide a satisfactory answer to a query, may be suspended from work without pay for a specific period of time. Suspension for disciplinary purposes shall be for a maximum of two (2) weeks in the first instance but no more than four (4) weeks in total after which a definite decision must be taken”.

 

20.       The evidence led even by the Claimant shows that Claimant was placed on suspension first by Exh. MF3 dated 18/8/16 and secondly by Exh. MF4 dated 6/9/16. It was after this that her employment was terminated by Exh. MF5 of 14/10/16. Thus there is no evidence before the Court to the effect that the Claimant was placed on suspension for more than four weeks contrary to the provision of Exh. MF9.

 

21.       It is also on Exh. MF9 that the Claimant placed reliance for claims for wrongful termination of employment. I perused that exhibit and noticed that its paragraph 13.4 deals with Summary Dismissal only as the available disciplinary measure after query and suspension in paragraphs 13.3. It was part of the evidence of the Claimant under cross examination that either side only needed to give one month notice or one month’s salary in lieu of notice of termination of employment. Again in answer to a question under the barrage of cross examination, the Claimant testifying as CW1 stated that BVN investigation and linkage fall under Banking processing and procedure; that according to Exh. MF9 p. 39 violation of Bank processing and procedure attracts summary dismissal; that the Bank is aware of her physical challenge and that her employment was terminated and 3 months’ salary in lieu was paid into her account. It is important to bear in mind that the Claimant was investigated for infraction of bank processing and procedure, the sanction for which, according to the Claimant is summary dismissal. The Claimant has not proved before me that the 1st Defendant could not impose a lesser punishment on her in place of summary dismissal provided for under paragraph 13.4 of Exh. MF9.

I took time to peruse Exh. D3 – the Minutes of Disciplinary Committee Meeting held on Tuesday September 20, 2016. The Committee on page 3 of its minutes of meeting had recommended that the appointment of the Claimant “be terminated for negligence leading to financial loss”. Three paragraphs in Exh. D3 are however important and crucial. These are the 2nd to the 4th paragraphs on the second page. They state thus –

 

“The Committee having listened to Mobolaji gave her a copy of the Framework on enrolment of BVN to read a section which required that for customers who have enrolled their BVN in other Banks, there has to be complete finger prints verification for the customer of special facial identification of the customers without fingers, before the BVN can be linked to their Access Bank accounts. The implication of the section of which Mobolaji read was that she needed to have seen the customer physically before she authorized the BVN linking.

Having read this section of the Framework, Mobolaji was asked by the Committee to explain if this provision of the framework was adhered to while linking the BVN for which she responded in the negative, even though she claimed to have attended a training where the policy was clearly emphasized.

The Committee also requested Mojibola to confirm if she was aware of the Framework and she responded affirmatively. Pius Nwaoshai (SM-Retail Operations) who was a member of the panel informed other Committee members that the details of the Framework had been shared severally with staff of Retail Operations and that Mojibola did not have any reasons not to have adhered to the framework”.

 

22.       This exhibit was admitted on 18/1/23 without objection. It appears to me that what the Committee did was to recommend a lighter punishment to the 1st Defendant for the infraction committed by the Claimant. It was open to the 1st Defendant to reject the lesser punishment and impose the maximum which is summary dismissal. It however accepted the recommendation. I am not aware of any law preventing the 1st Defendant from acting the way it did in the circumstances of this case. The Claimant has failed to prove that the termination of her employment by the 1st Defendant is wrong. I hold that the steps taken by the 1st Defendant were within the confines of Exh. MF9. I further hold that the 1st Defendant was indeed very considerate respecting the punishment it meted out to the Claimant. Accordingly, I resolve the first issue in favour of the 1st Defendant and against the Claimant.

 

23.       The second issue for determination is whether the Claimant has proved her case against the Defendants to be entitled to the reliefs sought or some of them. The Claimant sought reliefs A-D & F against the 1st Defendant. These reliefs rest solely on the Claimant first obtaining a declaration that her employment was wrongfully terminated.  In the resolution of issue 1, this Court has held that the employment of the Claimant was not wrongfully terminated. Accordingly, there exists no basis to consider whether the Claimant has adduced cogent evidence in proof of the reliefs sought against the 1st Defendant. Reliefs A – D & F are accordingly refused and dismissed.

 

24.       The Claimant also sought relief E against the 2nd Defendant. The relief is for an Order directing the 2nd Defendant to release all the documents of the Claimant including her international passport in the custody of the 2nd Defendant to the Claimant.

 

25.       In paragraph 25 of her statement of facts dated 21/10/19 and which was adopted by the Claimant as her evidence in chief, the Claimant stated that on 8/8/16 the 2nd Defendant seized her International Passport while the investigation continued. In addition, the Claimant stated in paragraph 27 of the same deposition that on 12/9/16 all her phones which were seized were returned to her by the EFCC. Now, aside the averment that her International Passport was seized by the EFCC, there is nothing else on record. Did the Claimant make a demand for the release of her International Passport from the EFCC? Again, after the release to her of all her phones, did the Claimant request the release to her of her International Passport? Unfortunately, the 2nd Defendant notwithstanding that it was always served all processes of Court in this case chose not to defend same. It would appear that the 2nd Defendant by its refusal to defend this suit is prepared to accept and obey any Judgment emanating from this Court. The 2nd Defendant was afforded series of opportunities to defend the case as put forward against it. It refused to ulitize any of the opportunities I find the evidence of the Claimant respecting the seizure of her International Passport unchallenged.  Accordingly, the 2nd Defendant is ordered to immediately return the International Passport of the Claimant it seized from her while investigating the case reported to it by the 1st Defendant against the Claimant.

6.         Conclusion

26.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant against the 1st Defendant is dismissed in its entirety. The 2nd Defendant is ordered to immediately return to the Claimant her International Passport its seized from her while investigating the case reported to it by the 1st Defendant.

 

27.       I make no order as to cost.

28.       Judgment is entered accordingly

 

_________________________

Hon. Justice J. D. Peters

Presiding