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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: May 21, 2015 SUIT NO. NICN/LA/584/2012 BETWEEN MR. LADIPO OYEBANJI - CLAIMANT AND FIRST BANK NIGERIA PLC - DEFENDANT REPRESENTATION O.A. Olugasa Esq with Mrs Olawunmi Odunibosi for claimant. O.E. Bamgbala for defendant. JUDGMENT The claimant filed this complaint against the defendant on the 16th November 2012 seeking the following reliefs: 1. A declaration that the purported termination of the employment of the claimant from the services of the defendant as borne by the defendant’s letter dated the 28th day of January, 2010 was wrongful, unlawful, null and void. 2. A declaration that the purported termination of the employment of the claimant from the services of the defendant as borne by the defendant’s letter dated the 28th day of January, 2010, being wrongful and unlawful amounts to a gross negligence by the defendant to ridicule and perpetually render the claimant unemployable for which the defendant is liable in damages. 3. The sum of N5,233,139.36 (Five Million, Two and Thirty Three Thousand, One Hundred and Thirty Nine Naira and Thirty Six kobo) being special damages for salary entitlement of the claimant. 4. Interest on the sum till payment is made at the rate of 21%. 5. The sum of N75,000,000.00 (Seventy Five Million Naira) being the damages against the defendant for negligence resulting in the embarrassment, dehumanization, loss of self-esteem and perpetual foreclosure of job prospect for the claimant. 6. The cost of this action. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon. The defendant filed its statement of defence, witness statement on oath and copies of documents to be relied upon on January 21, 2013. The case of the claimant on the pleadings is that he was employed by the defendant on the 3rd April 2005 and his appointment was confirmed. He pleaded that he was a Senior Banking Assistant at the defendant’s Isolo Branch until the 28th January, 2010 when his appointment was terminated by the defendant. He stated that on the 9th day of April, 2009 the Head Operations Support (HOS) in the branch, Mrs. Olabisi Ekumatalor complained that her password had been used to perpetrate some fraudulent transfers from well funded accounts to several other accounts. That further enquiries revealed that the password of Miss Ese Erih and Mrs. Elizabeth Ogoigbe had also been used. The claimant pleaded that the Bank’s personnel from Head office came to the branch and summoned him alongside others to the Branch Manager’s office but he was not asked any questions. That on the 14th day of April, 2009 the Bank placed on its internal mailing system the picture and name of one Mr. Azeez Oluwo of Oshodi Branch a suspected fraudster in the case of fraudulent transfer involving Isolo/Oshodi branches. The claimant pleaded that on the 14th April 2009, he was summoned to the Branch Manager’s office by the Bank’s Investigators and then questioned on who used the PC belonging to Ese Erih and he was thereafter handed over to the Police for questioning alongside Mrs. Balogun Oluwatoyin. He pleaded that the Police released him on the 15th April, 2009 and asked him to report daily at the station until further directive from the Bank. The claimant averred that he reported at the station for about two weeks, after which the Bank asked him to return to the Isolo branch and resume work. The claimant pleaded that on the 4th May, 2009 the Branch Manager summoned him to her office to attend to the Investigators from the head office who asked him to explain a series of log-in transactions of Ese Erih’s on his PC and specifically on those found on the 17th day of March, 2009. He pleaded that he did so and that the problem with Ese Erih’s PC was well-known to the Branch Manager, Mrs. Yewande Oyefeso, and the Systems Operator, Mr. Godwin Emeruem. The claimant averred that on the 4th day of May 2009, he was again re-arrested by the Police on the instruction of the Bank and was released on the 7th day of May, 2009. That on the 12th May, 2009 when he got to the branch office he was given a suspension letter dated the 6th day of May, 2009 alongside others including Mrs. Olabisi Ekumatalor, Miss Ese Erih and Mr. Chukwudi Nwankwor whose passwords were alleged to have featured in the alleged fraud. He pleaded that the defendant directed that while on suspension he should continue to report in his branch office each day. The claimant also averred that at all through the investigation till the termination of his employment the bank never alleged that his password featured in the alleged fraudulent transactions or that his PC terminal was used for the perpetration of any fraudulent transaction. That in June 2009 the bank summoned him to the head office alongside Miss Ese Erih and issued both of them queries. He pleaded that in August 2009 the defendant promoted him to the position of Senior Banking Assistant. That by an e-mail dated December 11, 2009 the defendant invited him to appear before its disciplinary committee for an alleged fraud of N2.154 billion “fraudulent transfers from various well-funded customers’ accounts”. He pleaded that by a letter dated the 28th January, 2010 the defendant terminated his appointment making reference to the action before the disciplinary committee. The claimant pleaded that he is innocent and that his appointment was wrongly terminated as he did not commit gross misconduct neither was he negligent in his duty. He pleaded that he wrote a letter of appeal dated the 9th February, 2010 against the termination but the appeal was refused thereby putting him in untold embarrassment and hardship and at a time access to employment in the banking industry is stifled. That on the 27 April, 2010, he made a further appeal to the defendant which was also refused. He pleaded that this has caused him serious psychological trauma, loss his self-confidence and self-esteem and inability to get another job. The claimant pleaded that the defendant has no proof to justify the termination of his appointment based on the alleged fraud of fraud of N2.154 billion (Two Billion, One Hundred and Fifty Four Million Naira). The claimant testified in support of his case. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross-examination, he told the court that he signed the letter of offer of employment and accepted the terms and conditions. He agreed that the defendant has a right to terminate his appointment without giving a reason but that this was not the case in this instance. The claimant told the court that the defendant did not comply with the terms of the contract of employment is liable to him not having properly terminated his appointment. The claimant then closed his case. The case of the defendant on the pleadings is that the claimant was a confirmed staff until the lawful termination of his employment on 28th January, 2010. It pleaded that a fraud in the sum of N2.154 billion (Two Billion, One Hundred and Fifty Four Million Naira Only) was perpetrated at its Isolo branch where the claimant worked and that the claimant was suspended in line with Article 14.4 of the staff handbook applicable to his grade of employment. It averred that the suspension was in line with the policy of the defendant to ensure a just and fair ascertainment of the circumstances of the matter. The defendant pleaded that it terminated the claimant’s employment and that it was a term of the contract of employment that it was terminable by one month’s notice or payment of the equivalent amount of basic salary in lieu of the required notice period. The defendant averred that the claimant’s employment was terminated in accordance with the terms of his contract and is therefore lawful. The defendant called one witness Mrs Vayen Vanessa Collins-Amaife (DW) its Employee Relations Officer. Her evidence in chief was by witness statement on oath which she adopted and was in the exact terms of the pleadings. Under cross-examination, she told the court that she had access to the records of this case by virtue of her position. DW told the court that disciplinary case files are kept for each case with a reference number. She told the court that the reference number on a letter indicates the source or writer of the letter and that exhibits CW3, CW4 and CW5 have the same reference number. DW informed the court that the defendant gives a reference to an ex employee based on his mode of exit and no employer will employ a fraudulent person. The defendant then closed its case. Parties were directed to file their final addresses. The defendant’s final address is dated 24th November 2014 and filed on the 25th November 2014. The claimant’s address is dated 29th January 2015 and is filed the same day. Learned counsel to the defendant submitted the following issues for determination: i. Whether having regards to the terms of employment letter of 28th January 2010 terminating the employment, was wrongfully issued or not. ii. Whether or not the claimant is entitled to fail in all his reliefs in paragraphs 1, 2, 3, 4, 5, 6 of the statement of complaint having regards to the due compliance by the defendant with the terms of the contract as ensured (sic) in the staff handbook tendered as Exhibit CW8. He submitted that the defendant is not obliged to give a reason for termination under the contract of employment and that the letter of termination made no reference to allegations of fraud. It was his further submission that an employer can terminate the services of an employee at any time giving the appropriate length of notice stipulated in the contract of employment citing Imoloame v WAEC [1992] 9 NWLR Pt. 265 at Pg. 303 at 321. That the defendant having complied with the contract cannot be held to have wrongfully terminated the claimant’s employment. He cited NH Insta v NICON Hotels Ltd [2007] 15 NWLR (Pt. 1056) 1, Rector Kwara Poly v Adefila [2007] 15 NWLR (Pt. 1056 ) 42, Ifeata v SPDC [2006] 8 NWLR (Pt. 983) 484. He argued that the onus is on the claimant to establish how the letter of termination was wrongful referring to Katto v CBN [1999] 6 NWLR (Pt. 607) 390, OKomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 719) at 660. He submitted that the court has a duty to confine itself to the meaning of Clause 8.10 of the employee handbook and give effect to it. He further submitted that in determining the rights and obligations of the parties to a contract, the courts must respect the sanctity of the contracts made by the parties citing Ibama v SPDC [2005] 10 SC 74 at 75, Momoh v CBN [2007] 14 NWLR (Pt. 1055) 504, Ansanbe v BON [2005] 8 NWLR (Pt. 928) 650, Okoebor v Polic Council [2003] 12 NWLR (Pt. 834) 444, Idoniboye Obu v NNPC [2003] 2 NWLR (Pt. 805) 589, Idufueko v Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) 96. He submitted that the defendant having complied with the terms of the employment contract, the claimant is not entitled to the declaratory reliefs he is seeking. On the claim for damages, he submitted that there is no evidence to justify the claim. He then urged the court to dismiss the case for lacking in merit. Learned counsel to the claimant submitted the following issues for determination: 1. Whether by the tenor of the termination letter dated the 28th day of January, 2010 the defendant properly terminated the claimant’s appointment having failed/neglected to follow proper procedure as laid down in the employment handbook and reference having been made to the reason for the termination in the letter of termination. 2. Whether the claimant is entitled to the reliefs sought. He submitted that there is no proper traverse by the defendant in respect of paragraphs 1 to 29 of the statement of facts and as such the defendant has admitted the claimant’s claims by not joining issues. He further submitted that admitted facts need no further proof. He cited FBN v Excel Plastic Industry Ltd [2002]LPELR-10280, Salami v Union Bank Plc [2010] LPELR-8975, Khatoun Enterprises Ltd v United Nigeria Textiles [2014] LPELR-23487. It was his further submission that the defendant failed to follow the proper procedure laid down in clause 14 of the employee handbook which forms an integral part of the contract between the claimant and the defendant and has failed to prove the allegation alluded to in the letter as being the reason for the termination of the appointment. He cited Salami v Union Bank Plc [2010] LPELR-8975(CA), A.V. Omenka v Morison Industries Plc [2000] LPELR-10686(CA); (2000) 13 NWLR (Pt. 683) 147, W.N.D.C v Abimbola [1966] 1 All NLR 159. Counsel submitted that the evidence adduced shows that the reason for the termination of the claimant’s appointment was the allegation of gross misconduct for fraud involving N2.59 billion. That this can be seen from the reference number on the letter of termination which is the same reference number on the letter inviting the claimant to appear before the disciplinary committee (exhibit CW5). He argued that the claimant having been found not culpable, the termination of his employment was unfair. He submitted that when an employee is under suspension he is still in employment until terminated and therefore the claimant is entitled to receive the balance of his emoluments. He urged the court to grant the claimant’s reliefs. I have carefully considered the processes, evidence, submissions and authorities. The issues for determination in this judgement are: (i) Whether the claimant’s appointment was terminated in accordance with his contract of employment; (ii) whether on the pleadings and evidence the claimant ought to be entitled to the reliefs sought. I will begin with the preliminary issue of the defendant’s traverse. The general traverse is in paragraph 1 of the statement of defence. In paragraph 7 the defendant has denied paragraphs 6 to 14 of the statement of facts and has put the claimant to the strictest proof for being facts within the claimant’s knowledge. The Supreme Court has stated the position as follows in Aja v Okoro [1991] 7 NWLR (Pt 203) 260 at 282 per Akpata J.S.C. paras. C-D: “As rightly submitted in the respondents’ brief of argument, paragraph 9 of the statement of defence is to the effect that Isaac Chukwu felled Iroko tree or timber on the respondents’ land. They certainly were not in a position to know whether or not Isaac Chukwu also felled Iroko tree on the plaintiff’s land which, according to the respondents, is outside Elueke land. It will, in my view be encouraging a defendant to be mendacious to insist that he must deny flatly the fact of something he knows nothing about.” Following from the above reasoning of the Supreme Court, by the traverse in paragraph 7 of the statement of defence, the defendant is not bound to specifically deny facts which are not within its knowledge. I hold that the defendant’s traverse is not an admission of the claimant’s claims as the case the defendant has put up materially conflicts with the claimant’s case. See Section 20 of the Evidence Act 2011, Adusei & anor v Adebayo [2012] 3 NWLR [Pt 1287] 534, Oparaji v Ahihia [2012] 4 NWLR (Pt 1290) 266. It is the law that the burden of proof of establishing the terms of the contract of service is on the claimant. It is also his burden to prove the breach of the terms of the contract he alleges. See Section 131(1) and (2) of the Evidence Act 2011. In furtherance of this, the claimant has placed before the court his contract of employment, letter of suspension and letter of termination. The law is settled that in a contract of employment, the conditions of service rules and regulations are binding on both the employee and employer equally. See D.A.Nig Alep Ltd v Oluwadare [2007] 7 NWLR (Pt 1033) 336. I will now reproduce below the letter of termination written by the defendant on January 28, 2010: Dear Mr Oyebanji, TERMINATION OF APPOINTMENT 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 salary in lieu of notice. Consequently your appointment is hereby terminated with immediate effect. Yours sincerely, For: FIRST BANK OF NIGERIA PLC. Ayodele A. Jaiyesimi HEAD HUMAN CAPITAL MGT & DEVELOPMENT The letter of termination has not given any reason for the termination of the claimant’s employment. In the exercise of its interpretation jurisdiction, courts are enjoined to construe a document in its ordinary and grammatical meaning without any colouration. Where specific things or persons are mentioned, those not mentioned are not intended to be included. See Obi v INEC [2007] 11 NWLR (Pt 1046) 449. Therefore, an inference cannot be drawn from the reference numbers used in exhibits CW3, CW4 & CW5 and then go on to conclude that the claimant’s employment was terminated as a result of the fraud of N2.59 billion as the claimant’s counsel has done and is urging the court to do. This will amount to the court giving a reason where none was given in the letter. The claimant is evidently displeased with the termination of his employment. There is however a distinction between a termination and a dismissal. The employer is duty bound to justify the reason for a dismissal while a termination should be done pursuant to the rights of the parties under the contract. Now, what are the rights of the parties under the employment contract? Clause 8.10 (A) of the defendant’s employee handbook is relevant for this purpose and is a term of the claimant’s contract of service. It provides that: During the probationary period, employment maybe terminated by either side giving two weeks’ notice in writing or payment of two weeks basic salary in lieu of notice. After confirmation, employment 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 ... This means that either party has the right to terminate the contract through notice or payment in lieu of notice. Under cross-examination the claimant said: “the bank has a right to terminate my appointment without giving me a reason”. This is an admission which is binding on him. See Section 20 and 21 of the Evidence Act 2011. The claimant’s counsel submitted that the defendant failed to follow the proper procedure laid down in clause 14 of the employee handbook. He however failed to state this fact in the pleadings and lead evidence in respect of the procedure not followed in the process leading to the termination of the claimant’s employment. I hold that the claimant has failed to prove that his employment was wrongly terminated by the defendant. The declaratory reliefs being sought must therefore fail. The claimant has also made a claim for special damages in the sum of N5,233,139.36. This has not been specially pleaded neither is there any evidence before the court that entitles the claimant to special damages. The claim for general damages for N75,000,000.00 also fails as there is no evidence that he is indeed entitled to such an award. For all the reasons given above, the claimant’s case is dismissed in its entirety. Costs of N10,000.00 awarded the defendant. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki- Osaghae