IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS
JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI
DATE: MONDAY
19TH OCTOBER 2026 SUIT NO. NICN/LA/43/2021
BETWEEN:
AYODEJI
FAYIGBE
CLAIMANT
AND
POLARIS
BANK LIMITED
DEFENDANT
Representation:
O E Ogungbede for
the Claimant
Okechukwu Umemuo for the Defendant
JUDGMENT
Introduction and Claims:
1. The Claimant
commenced this suit through a Complaint and a Statement of Facts filed on 1st
March, 2021 seeking the following reliefs:
a.
A
DECLARATION
that the summary dismissal of the Claimant by the Defendant vide a letter dated
17th of January, 2020 from the employment of the Defendant for being
guilty of fraudulent practices when no Court of competent jurisdiction has
adjudged him so and for gross misconduct perpetrated and committed by another
employee/staff of the Defendant (one Damilola Esther Akanbi) as clearly stated
in the Defendant letter of dismissal dated 17th of January, 2020 is
wrongful and therefore null and void.
b.
A
DECLARATION
that the Claimant is still in the employment of the Defendant.
c.
AN ORDER setting aside the purported
dismissal of the Claimant by the Defendant vide a letter dated 17th
of January, 2020.
d.
AN ORDER
compelling
the Defendant to compute and pay to the Claimant his guaranteed salaries,
entitlements and allowances as stipulated in his letter of offer of employment
dated 21st of September, 2018 which may have become due to the
Claimant from the date of his purported dismissal from the 17th of
January 2020 until judgment is delivered in this suit and until the date of his
reinstatement.
e.
AN ORDER
directing
the Defendant to reinstate the Claimant to his status as Senior Banking
Officer and pay him all his entitlement and promotions which have accrued to
him from the date of the purported summary dismissal.
f.
AN ORDER
compelling
the Defendant to convert the purported letter of dismissal to termination
letter to take effect from the date of judgment in this suit and to calculate
and pay the Claimant his terminal benefits.
g.
N50, 000,000.00 (Fifty Million Naira) only as general and
exemplary damages against the Defendant for the injury and damage to the
reputation of the Claimant by the Defendant.
h.
SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the
circumstances of this case.
2.
In response to the Claims, the Defendant filed its Statement of Defence
dated 23rd July 2021; which was subsequently amended on 11th July 2023 with list of Defendant’s witness and
Defendant’s witness statement on oath deposed to by Paul Animashawun. The Claimant did not file a Reply. Trial commenced in the suit on 7th December
2021. The Claimant gave evidence for
himself as CW, by adopting his witness statement on oath deposed to on the 1st
of March 2021. The Claimant was
cross-examined on the same day. During
the examination in chief, the Claimant tendered in evidence twelve documents
admitted and marked exhibits C1 – C12.
The Defendant opened its case on 10th November 2023 through its witness
Mr. Paul Animashawun who adopted his statement on oath deposed to on 11th July
2023 and was thereafter cross examined on 30th January 2024. During the examination in chief the witness
tendered six documents which were admitted and marked as exhibits D1 – D6.
FACTS OF THE CASE
3.
The Claimant, Ayodeji Fayigbe, a former Senior Banking Officer and
Branch Service Manager of the Badagry Branch of the Defendant, Polaris Bank
Limited, challenges his summary dismissal for gross misconduct effected by
letter dated 17th January 2020. His employment traced back through Cooperative
Bank Plc and Skye Bank Plc and continued with the Defendant following the
acquisition of Skye Bank, upon a letter of offer dated 21st September 2018. The controversy arose from a backward review
conducted on 14th October 2019 through the General Electric File Upload (GEFU)
Report, which revealed that N23,832,293.91 had been fraudulently debited in
tranches from the Branch GLs and credited to several accounts between January
2016 and August 2019. The Claimant's case is that he, together with an Internal
Control Officer, busted a fraud perpetrated by one Mrs. Esther Damilola Akanbi,
who confessed and, in her undertaking to the police (Exhibit C9), attested that
the imputers were not involved. He contends that his dismissal, whose operative
letter (Exhibit C3) was headed with reference to fraud committed "by
Esther Damilola Akanbi," punished him for the misconduct of another in
breach of his right to fair hearing, and that it was invalid for want of the
approval of the Group Managing Director required by the Employee Handbook 2019
(page 75, paragraph 6; page 109, paragraph 2). The Defendant contends that the
Claimant, as Branch Service Manager, masterminded or colluded in the scheme, or
at the least was guilty of supervisory negligence with staff involvement, an
offence attracting summary dismissal under the Sanctions Grid at page 91 of the
Handbook, and that he was afforded full fair hearing through a query, response,
and appearance before a Disciplinary Committee.
DEFENDANT'S SUBMISSIONS
4. Learned Counsel to the Defendant, Okechukwu
Umemuo, FCIArb adopted two issues for determination:
1. Whether given the totality of the evidence presented at
trial, the Claimant was able to establish that his dismissal for gross
misconduct was wrongful and unfair?
2. Whether the Claimant is entitled to any of the reliefs
sought in this suit?
On Issue 1: Whether given the totality of the
evidence presented at trial, the Claimant was able to establish that his
dismissal for gross misconduct was wrongful and unfair. Learned Counsel to the
Defendant submitted that the Claimant failed to establish his case on a
preponderance of evidence and that the facts on which he predicated his case
defeat rather than support it. He submitted that the burden lay on the Claimant
on the principle that "he who asserts must prove," relying on
Sections 131(1) and 132 of the Evidence Act 2011 and on Agbabiaka v. First
Bank [2019] LPELR-48125 (SC), where the Supreme Court per Ejembi Eko, JSC
held that whoever desires the court to give him judgment as to a legal right
dependent on the existence of facts he asserts has the onus of proving those
facts. Counsel submitted that the Claimant desired judgment on the basis of
facts alleged in his Statement of Facts but failed to prove or even plead the
facts necessary to succeed. Counsel
submitted that the Claimant, in both his evidence-in-chief and under
cross-examination, admitted that he was afforded fair hearing in that he was
issued a query, admitted as Exhibit D2, asking him to explain his role in the
misconduct, and that he responded, in Exhibit D3, admitting that the fraudulent
transactions took place but blaming "complete oversight" and stating
that he "never believed that there could be a compromise between the
imputer and authorizer." He relied on the Claimant's admission under
cross-examination that:
Yes, I agree that the branch was actually
defrauded of about N24m. It happened for over a period of 3 years from January
2016 to August 2019. It happened on a monthly basis. I was the branch service
manager during the period when it was discovered. The Defendant queried me
because I was the branch manager. I responded to that query by email dated 17th
October 2019. In the email, I stated that it was due to oversight on my part.
5. Counsel
submitted that this admission established both the gross misconduct and that
the fraudulent scheme was wired into the system of the branch the Claimant
headed on a monthly basis for three years.
Counsel submitted that the Claimant's explanation was not satisfactory
because the investigation showed that while the Claimant directly authorised
only some of the payments, all were done under his instructions, and it was
untenable that such a scheme could exist for over three years without his
knowledge. He submitted that the Disciplinary Committee heard evidence from the
Claimant and other staff, and that the testimony of Esther Damilola Akanbi and
Oyewale Eso implicated the Claimant and showed he actively participated in the
scheme. He submitted that the Defendant complied with the procedure in the
contract of employment by issuing a query, setting up a Disciplinary Committee,
and offering fair hearing, and that pursuant to the Sanctions Grid at page 91
of Exhibit D6, the Defendant could summarily dismiss the Claimant for "all
fraud related cases, misappropriation, misapplication, conversion, severe
negligence, supervisory negligence with staff involvement or collusion." Counsel argued that even the Claimant's own
admission of negligence would have been sufficient to dismiss him under his
contract of employment. He submitted that where an employer follows the
procedure laid down in the contract of employment and affords fair hearing, it
is not the duty of the court to re-hear or re-open the disciplinary process,
relying on FUT Yola v. Maiwuya (2010) LPELR-9001 (CA), where the Court
of Appeal held that all that an employer needs to establish is that the
allegation was disclosed to the employee, that he was given fair hearing, that
laid-down procedure was followed, or that the employee accepted he committed
the act after investigation. He submitted that the Claimant's admission of
"complete oversight" equated to the "severe negligence or
supervisory negligence" in Exhibit D6, and that where an employee admits
committing the misconduct, the requirement of fair hearing is satisfied.
6. Counsel
further relied on SUIT NO. NICN/ABJ/240/2013: Stephen Izonebi v.
Federal Judicial Commission for the proposition that fair hearing is
satisfied once an employee is given an opportunity to respond, and that the
absence of a criminal conviction does not bar an employer from dismissing an
employee for gross misconduct. He submitted that the Claimant's contention that
he could not be dismissed without a prior conviction did not represent the
current state of the law. On the burden in wrongful termination claims, he
relied on Mr. Eniiwomake Richard Ovivie & Ors v. Delta Steel Company Ltd
[2023] 14 NWLR (Pt. 1904), where the Supreme Court per Abba Aji, JSC held that
an employee complaining of wrongful termination has the onus first to place
before the court the terms of the contract of employment and second to prove in
what manner those terms were breached, and that it is not for the employer to
prove these. Counsel submitted that the Claimant failed to show any part of his
contract that was breached. Counsel
submitted that the whole gamut of the Claimant's case was anchored on mischief,
namely the misconception that because the letter of dismissal was headed
"Fraudulent Transfers of N23,832,293.91k through GEFU Upload in Badagry
Branch by Esther Damilola Akanbi," she was the sole culprit. He submitted
that a document must be read as a whole, relying on Adegoke Motors Ltd v.
Adesanya (1989) 3 NWLR (Pt. 109) 250 for the principle that a document
speaks for itself and cannot be varied by oral evidence. He submitted that DW1 explained under
cross-examination that the title was used for ease of reference and did not
mean the investigation related only to Esther Damilola Akanbi, and that Exhibit
D1 showed both Esther Akanbi and the Claimant were dismissed while Oyawale Esho
was issued a warning, all for the same misconduct. He submitted that the contents
of the query referred to the Claimant by name and asked him to explain his
role, and that the letter of dismissal referred to him by name, so that the
headings taken with the contents did not bear the meaning ascribed by the
Claimant. Counsel further submitted that
the Claimant failed to traverse or controvert the facts of his involvement
narrated in paragraphs 10 and 11 of the Amended Statement of Defence, and in
the corresponding paragraphs 13 and 14 of DW1's Statement on Oath, and is
therefore deemed to have admitted those facts. He relied on Ubani-Ukoma
& Anor V. Seven Up Bottling Co Plc & Anor (2022)
LPELR-58497 (SC), where the Supreme Court per Mohammed Lawal Garba, JSC held
that where a party fails to respond to or challenge the defence set up, he is
deemed in law to have conceded to and accepted the averments. He also noted that
the Claimant filed no Reply to the Statement of Defence and is deemed to have
admitted the facts over which issues were not joined. Counsel urged the Court
to resolve Issue 1 in favour of the Defendant.
7. On
Issue 2: Whether the Claimant is entitled to any of the reliefs sought in this
suit. Learned Counsel to the Defendant
submitted that, the Claimant having failed to establish that his dismissal was
not in accordance with his contract of employment, all the reliefs must fail,
but proceeded to address each relief out of caution. As to Relief 1, Counsel submits that it is
not the law that a court of competent jurisdiction must first convict the
Claimant before the Defendant could dismiss him for gross misconduct. He
submitted that where a gross misconduct is also a criminal offence, the
employer's right to discipline is distinct from the State's right to prosecute,
relying on Stephen Izonebi v. Federal Judicial Commission and on Arinze
v. FBN Ltd (2004) 12 NWLR (Pt. 888) 663, where the Supreme Court held that
an employer can dismiss an employee where the accusation is of gross misconduct
involving dishonesty bordering on criminality without the employee first being
tried in court, and that all that is required is fair hearing by confronting
the employee with the accusation and requiring him to defend himself. He also
relied on National Judicial Council & Ors v. Hon. Mr. Justice C.P.N.
Senlong & Ors (2010) LPELR-4582(CA) to the same effect. As to Reliefs
2, 3 and 5, being the declaration that the Claimant is still in employment, the
order setting aside the dismissal, and the order of reinstatement, Counsel
treated them together and submitted that the court cannot impose a willing
employee on an unwilling employer where the contract is not one with statutory
flavour. As to Relief 4, the order to pay salaries, entitlements and allowances
from the date of dismissal until judgment and reinstatement, Counsel submitted
that it is not in dispute that the Claimant was dismissed on 17th January 2020
and rendered no service thereafter, and that an employee whose employment has
been terminated cannot earn salaries after termination, salaries being periodic
rewards for work done. He relied on Chukwuma A. J. Chinwo v. Rivers State
University of Science and Technology: SUIT NO. NICN/PHC/65/2013 and
submitted there was no legal basis for the relief. As to Relief 6, the order converting the
dismissal to termination and directing payment of terminal benefits, Counsel
submitted that this relief reflected the Claimant's doublespeak, wanting
reinstatement in one breath and conversion to termination in another. He
adopted his Issue 1 arguments that the dismissal was not wrongful. On terminal
benefits, he submitted that the Defendant pleaded at paragraphs 13 and 14 of
the Amended Statement of Defence, and testified in paragraphs 15 and 16 of
DW1's Statement on Oath, that it paid the Claimant all his terminal benefits
contemporaneously with his dismissal, relying on the document titled "Net
Financial Position as at January 17, 2020" attached to Exhibit D5. He
submitted that the Claimant did not deny or traverse these facts nor attack
them during cross-examination and is deemed to have admitted them. He further
submitted that the Claimant led no evidence as to what his terminal benefits
were or how he arrived at them, and that the court cannot embark on speculation
or conjecture. As to Relief 7, the claim
for N50,000,000.00 as general and exemplary damages for injury and damage to
reputation, Counsel submitted that the relief was strange and rooted in the
tort of defamation, being an independent head of claim distinct from the other
reliefs and raised for the first time, with neither pleadings nor evidence
establishing defamation. He submitted that the Claimant did not state the form
or manner of the defamation, the words spoken or written, by whom, or in what
circumstances. He relied on Sketch v. Ajagbomkeferi (1989)
1 NWLR (Pt. 100) 678, where the Supreme Court per Wali, JSC held that for
defamation to succeed the exact words must be pleaded and shown to be
defamatory, to refer to the claimant, and to have been published. In
conclusion, Learned Counsel to the Defendant urged the Court to dismiss all the
reliefs sought and to award costs in favour of the Defendant, submitting that
the dismissal of the Claimant was in accordance with his contract of employment
and the law, and that the Claimant was unable to show how his contract of employment
was breached.
CLAIMANT'S SUBMISSIONS
8. Learned Counsel to the Claimant, Olukoya
Ogungbeje, Esq. adopted three issues for determination:
1. Whether the dismissal of the Claimant by the Defendant on
the basis of the gross misconduct of another staff/employee of the Defendant as
clearly stated in the dismissal letter dated 17th of January 2020 issued by the
Defendant to the Claimant is not prejudicial against the Claimant's right to
fair hearing and thus wrongful
2. Whether in consonance with the Defendant's Employee Handbook
2019, there is any evidence before the Court showing that the Claimant's
dismissal was duly approved by the Group Managing Director
3. Whether the Claimant is entitled to the reliefs sought
having found out that his dismissal by the Defendant is wrongful
9. On
Issue I; Learned Counsel to the Claimant submitted that the dismissal of the
Claimant on the basis of the gross misconduct of another staff of the Defendant
is clearly wrongful. He argued that documentary evidence speaks for itself and
no oral evidence can be used to construe its clear meaning. Building on this,
he contended that Exhibit C3, the letter of dismissal dated 17th January 2020,
"bares it all," because on its face the letter dismissed the Claimant
"in respect of the case of Fraudulent Transfers of N23,832,293.91 through
GEFU Upload in Badagry Branch BY ESTHER DAMILOLA AKANBI." He reproduced
the letter in full and submitted that its contents show, first, that the letter
was issued after the Defendant's investigation; second, that the letter
identifies the perpetrator of the fraud as investigated by the Defendant; and
third, that the Claimant was dismissed for the offence of another employee,
rendering the entire investigation prejudicial to the Claimant's right to fair hearing.
Counsel relied on Atanda v. Ifelagba (2003) 17 NWLR (Pt.
849) 274 for the proposition that a document duly pleaded, tendered and
admitted becomes the best evidence of its contents and speaks for itself. Learned Counsel submitted further that it was
not in dispute that Esther Damilola Akanbi perpetrated the fraud, as shown in
Exhibit C9, the Undertaking/Statement dated 14th October 2019 made by her to
the Police, which he reproduced, and in which she attested: "I hereby
attest that I performed the Fraudulent transactions on the GLs below... The
imputers are not in anyway involved in the transaction." He anchored this
submission on the Defendant's own admissions at paragraph 10(i) and (ii) of the
Amended Statement of Defence, where the Defendant stated that upon the backward
review "it was immediately apparent that the Transaction Officer (Esther
Damilola Akanbi) was directly involved in these fraudulent transactions." Counsel posed a series of rhetorical
questions: if the Defendant constituted the Committee and was in possession of
the compelling evidence implicating the Claimant, why did it not bring that
evidence before the Court to demonstrate the Claimant's involvement; why did it
withhold the compelling evidence of Esther Damilola Akanbi and Wale Esho; and
why did the Defendant fail to bring the Records of Proceedings of the
disciplinary committee to enable the Court determine whether the accusers were
cross-examined by the Claimant. Counsel submitted that there was therefore no
evidence before the Court that the Claimant was allowed to cross-examine his
accusers. Learned Counsel relied on Obot
v. CBN (1993) 8 NWLR (Pt. 310) 140 at 161 for the proposition
that an essential element of fair hearing is that the investigating body must
not receive evidence or representation behind the back of the person being
investigated, and that where it does, the Court will not inquire whether such
evidence worked to the prejudice of the person investigated; it is sufficient
that it might, the risk being enough. He also relied on U.C.H.B.M v. Morakinyo
(2014) 16 NWLR (Pt. 1434) 589 at 619-620.
10. On
Issue II: Whether in consonance with the Defendant's Employee Handbook 2019,
there is any evidence before the Court showing that the Claimant's dismissal
was duly approved by the Group Managing Director or any designate. Learned Counsel to the Claimant submitted
that the Claimant's dismissal was not in accordance with the Defendant's
Employee Handbook, being the instrument regulating the contract of employment
between the parties. Counsel pointed to paragraph 15(v) of the Amended
Statement of Defence, where the Defendant averred that it dismissed the
Claimant pursuant to the Employee Handbook 2019 and the Sanctions Grid at page
91. He then referred to page 75, paragraph 6 of the Handbook, which provides
that an employee found culpable of gross misconduct "SHALL be dismissed
from the service of the Bank with immediate effect," and that "ALL
dismissals MUST be APPROVED by the Group Managing Director." He also
referred to page 109, paragraph 2 of the Handbook, which provides that
"all disciplinary decisions SHALL be duly APPROVED by the GMD/CEO or his
designate." Counsel submitted that
during cross-examination of the Defendant's sole witness, it was confirmed and
admitted on oath that the Claimant's dismissal was not approved by the Managing
Director or his designate, and that there was no material, evidence, or
particular placed before the Court showing that the dismissal was so approved
in accordance with the Handbook. Counsel therefore submitted that the Defendant
dismissed the Claimant without recourse to the Handbook, contrary to page 75
paragraph 6 and page 109 paragraph 2, and urged the Court to hold that the
dismissal constituted a flagrant breach of the contract of employment and was
wrongful, null and void, and to resolve Issue II in favour of the Claimant.
11. On
Issue III: Whether the Claimant is entitled to the reliefs sought having found
that his dismissal by the Defendant is wrongful. Learned Counsel to the Claimant submitted
that the Claimant's dismissal was wrongful, null and void, as he was dismissed
on the basis of the gross misconduct of another staff of the Defendant as
clearly stated in the letter of dismissal. On entitlement to remedy, Counsel
invoked the maxim ubi jus ibi remedium, submitting that the court is
enjoined to provide a remedy whenever a right is established and to eschew
reliance on technicalities, relying on Bello v. A.G. Oyo State (1986) 5
NWLR (Pt. 45) 828, Stitch v. A.G. Federation (1986) 5 NWLR (Pt. 42)
1007, and Saleh v. Monguno (2006) 15 NWLR (Pt. 1001) 26 at 37-38. He
submitted that the Court can award damages far beyond the payment of notice if
it deems fit, relying on Mobil Producing Nig Unltd & Anor v.
Udo (2008) LPELR-8440 (CA) and British Airways v. Makanjuola (1993)
8 NWLR (Pt. 311) 276. On the quantum of general damages, he relied on Badmus
& Anor v. Abegunde (1999) LPELR-705 (SC), where the Supreme
Court held that the quantum of general damages need not be pleaded and proved, being
the loss which flows naturally from the defendant's act and generally presumed
by law, and quantified by reference to the opinion and judgment of a reasonable
person.
COURT’S
DECISION
12. Having considered
the issues formulated by both parties, which substantially overlap, the Court
adopts two issues that dispose of the entire case as follows:
1. Whether, given the totality of the evidence, the Claimant
established that his dismissal by the Defendant was wrongful and unfair.
2. Whether the Claimant is entitled to the reliefs sought in
this suit.
13. The first
material issue is whether the Claimant was dismissed for the misconduct of
Akanbi alone, as he contends, or for his own gross misconduct, as the Defendant
contends. On this point the Claimant relies wholly on the heading of Exhibit
C3. But a document must be read as a whole. The operative sentence of Exhibit
C3 is addressed to the Claimant personally: "Further to your appearance
before the Bank's Disciplinary Committee... we hereby notify you of
Management's decision to dismiss you from the services of the Bank for gross
misconduct." The words "your appearance" and "dismiss
you" refer unambiguously to the Claimant. The heading identifies the
subject-matter of the investigation by reference to the transactions and the
primary actor; it does not state that the Claimant is being punished for
another's act. DW1's explanation that the caption was retained "for ease
of reference" across all correspondence in the matter is consistent with
ordinary institutional practice and I find it more credible than the meaning
the Claimant seeks to attach. Crucially, the Claimant's own admission under
cross-examination destroys the foundation of this argument: he admitted he was
queried "because I was the branch manager" and that he responded
accepting "oversight on my part." A person dismissed purely for
another's misconduct is not queried about his own role, nor does he answer a
query by admitting oversight. The Claimant's construction of Exhibit C3 is
therefore contradicted by his own conduct and evidence, and I resolve this
conflict in favour of the Defendant's version: the Claimant was dismissed for
his own conduct as Branch Service Manager, characterised as supervisory failure
at the least.
14. The second material
issue is whether the Claimant himself actively perpetrated or colluded in the
fraud, as the Defendant pleaded. The
Defendant asserted collusion and mastermind status but produced no record of
the Disciplinary Committee proceedings, no reproduced Report, and no statement
of Akanbi or Esho implicating the Claimant. Against that assertion stands
Exhibit C9, Akanbi's own written admission that "I performed the
Fraudulent transactions" and that "the imputers are not in anyway
involved in the transaction." To the extent the Defendant sought to prove
that the Claimant was an active fraudster who "masterminded and
colluded," that allegation is not established on the evidence before the
court; the assertions of "compelling evidence" remain bare, and
Exhibit C9 cuts against active complicity. I therefore find that active
fraudulent participation by the Claimant is not proven. This finding, however,
does not dispose of the case, because the Defendant's contract-based ground of
dismissal was not confined to active fraud.
15. The third and
decisive material issue is whether the Claimant was guilty of gross misconduct
within the meaning of his contract of employment such as to justify summary
dismissal, and whether fair hearing was accorded. On this issue the evidence
favours the Defendant. The Sanctions Grid at page 91 of the Employee Handbook,
in evidence as Exhibit D6, expressly lists "severe negligence, supervisory
negligence with staff involvement or collusion" as gross misconduct
attracting dismissal. The Claimant, by his email Exhibit D3, admitted "a
complete oversight and over reliance on the Head Transaction Officer," and
under cross-examination admitted a monthly fraud ran for over three years in
the branch he headed and that his failure was "oversight on my part."
These admissions align precisely with the language of the Sanctions Grid. The
Claimant's own words establish supervisory negligence with staff involvement.
The gap in the Defendant's proof of active fraud does not rescue the Claimant,
because supervisory negligence is an independent and self-standing ground
within the contract, and it is proved out of the Claimant's own mouth.
16. On fair hearing,
the two versions again conflict. The Claimant deposed that "I was not
given the opportunity to defend myself." The Defendant, through DW1 and
the documents, established that the Claimant was issued a query (Exhibit D2),
responded to it (Exhibit D3), was invited to appear before the Disciplinary
Committee (Exhibit D4), and did appear. The Claimant's own admission under
cross-examination that "the Defendant queried me" and that "I
responded to that query by email dated 17th October 2019" confirms the
first two limbs. His Statement on Oath itself admits that he "appeared
before the committee." The bare assertion that he was denied opportunity
to defend himself is inconsistent with his own admitted participation and with
the documentary trail, and it was not particularised. Where an employee is
confronted with the allegation, queried, and afforded appearance before a
disciplinary panel, the procedural requirement of fair hearing at the level of
the employment relationship is substantially met. I find the Defendant's
version more credible on this issue because it is corroborated by the
Claimant's own admissions and by the query, response and invitation documents,
whereas the Claimant's contrary assertion is uncorroborated and
self-contradictory.
17.. I must, however,
engage directly with the Claimant's strongest point, which is the absence from
the record of the Disciplinary Committee's records of proceedings and the
compelling evidence said to implicate him, and the principle that a
disciplinary body must not receive evidence behind the back of the person
investigated. This is a genuine tension. Had the Defendant's justification
rested solely on the untendered compelling evidence of Akanbi and Esho, the
Claimant's fair-hearing complaint would have had real force, because the court
cannot verify that he was permitted to confront and answer those witnesses. But
the Defendant's sustainable ground of dismissal does not depend on that
untendered evidence at all. It rests on the Claimant's own admitted supervisory
negligence, which required no accuser and no cross-examination to establish,
being volunteered by the Claimant himself in Exhibit D3 and under
cross-examination. Where an employee admits the conduct constituting the
misconduct, the requirement of fair hearing is satisfied notwithstanding
deficiencies in other parts of the disciplinary record. The Claimant's admission
neutralises the prejudice he complains of.
18. A further
inconsistency internal to the Claimant's case must be noted. His reliefs are
mutually contradictory: he simultaneously seeks reinstatement as a subsisting
employee (reliefs b, c, e) and conversion of the dismissal to a termination
with payment of terminal benefits (relief f). A party genuinely asserting that
he remains in employment does not in the same breath ask that his dismissal be
converted to a termination. This internal contradiction weakens the coherence
of his case and the Defendant's characterisation of it as
"doublespeak" is, on the face of the pleadings, borne out.
19. On the pleadings,
I note that the Claimant filed no Reply to the Amended Statement of Defence,
and in particular did not specifically traverse the averments in paragraphs 10
and 11 concerning his knowledge and control of the payments. In law, facts not
specifically denied are deemed admitted. This procedural default reinforces the
evidential findings already reached.
20. The Claimant’s
argument that he could not be dismissed for conduct bordering on fraud without
a prior criminal conviction is not the law. An employer's right to discipline
for gross misconduct is distinct from the State's right to prosecute, and it was
settled in Arinze v. FBN Ltd (2004) 12 NWLR (Pt. 888) 663 that an
employer may dismiss for misconduct involving dishonesty without the employee
first being tried, all that is required being that he is confronted with the
accusation and afforded the opportunity to defend himself. That opportunity, as
I have found, was given and, in respect of the negligence ground, was in truth
answered by admission.
21. An issue I must
address is the Claimant's separate ground, that the dismissal was invalid for
want of the approval of the Group Managing Director required by the Employee
Handbook. This ground stands on a different footing from the fair hearing
complaint, for it is not answered by the Claimant's admissions and it goes to
the internal validity of the disciplinary act. The Handbook, which both parties
accept regulates the relationship, provides at page 75, paragraph 6, that an
employee found culpable of gross misconduct "shall be dismissed from the
service of the Bank with immediate effect" and that "all dismissals
must be approved by the Group Managing Director," and at page 109,
paragraph 2, that "all disciplinary decisions shall be duly approved by
the GMD/CEO or his designate." Where a contract of employment prescribes
the terms on which the relationship may be brought to an end, those terms are
the bedrock upon which any complaint of breach is determined. The Claimant's submission is that DW1
admitted under cross-examination that the dismissal was not approved by the
Managing Director or his designate, and that no material was placed before the
court showing such approval. This ground
requires the Claimant to establish, as the party asserting the breach, that the
mandatory approval was not obtained. It is not enough to observe that the
approval memorandum was not tendered, for the burden of proving that a required
approval was absent lies on the party who asserts its absence, and Exhibit C3
itself carries on its face the statement that it conveys "Management's
decision to dismiss you." A letter issued in the name of Management,
upon the Bank's letterhead, communicating a dismissal, is on its face an act of
the institution and not of a rogue officer, and it raises the ordinary
presumption of regularity that official and institutional acts are done rightly
and in accordance with the internal authority governing them. To displace that
presumption the Claimant needed to prove, not merely assert, that the Group
Managing Director or his designate did not approve the decision. The submission
rests on an alleged admission by DW1 under cross-examination that no such
approval was given. But the record before this Court does not contain the words
of any such admission. The evaluation of the evidence did not capture DW1
conceding the absence of approval, and I am not entitled to found a finding on
a paraphrase in counsel's address of testimony that is not reproduced in the
record. The records show that DW was asked:
·
Question - Do you have any document showing the approval of the dismissal by
the Managing Director?
·
Answer - Yes
·
Question - Is it before the Court?
·
Answer - No
22. What can properly
be said is that DW's response, taken with the face of Exhibit C3 as an act of
Management, leaves the presumption of regularity undisturbed. The Claimant has
not proved that the mandatory approval was withheld, and a declaration that the
dismissal is null and void cannot be founded on an unproved assertion of
internal irregularity. This ground therefore also fails, though for want of
proof rather than because the requirement of approval is unimportant. The Claimant failed to prove that any term of
his contract, was breached. He was not dismissed for another's misconduct; he
was dismissed for his own admitted supervisory negligence, which the Handbook
designates as gross misconduct warranting summary dismissal. He was afforded
the opportunity to answer, and in respect of the operative ground he answered
by admission. He did not prove that the dismissal lacked the internal approval
the Handbook requires. On the first issue, I therefore find that the Claimant
failed to establish that his dismissal was wrongful or unfair, and I resolve
the first issue against the Claimant and in favour of the Defendant.
23. The second issue
for determination is whether the Claimant is entitled to the reliefs sought in
this suit. Since entitlement to every relief he seeks is predicated upon a
finding that his dismissal was wrongful, and I have found it was not, the
reliefs must in the main fall with the first issue. This suit fails in its and
is hereby dismissed.
Judgment is entered accordingly. I make no order as to cost.
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Hon.
Justice (Prof) Elizabeth A. Oji