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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: JANUARY 28, 2016 SUIT NO. NICN/LA/162/2012 BETWEEN Mr. Adewale Aina - Claimant AND 1. Wema Bank Plc 2. Mr. Segun Oluketuyi (Group Managing Director/Chief Executive Officer) - Defendant REPRESENTATION C. S. Nwangwa, and with him are Miss N. Ogbunankwor, Mrs. H. F. Aderibigbe, Miss Esther Anamemena, Tony Iwowo and Mrs. D. Emawodia, for the claimant. Joseph Okobiemen, and with him are D. Udaze, Miss Patience Mba and Victor Gwam, for the defendant. JUDGMENT This is a transferred case from the High Court of Lagos State. The claimant had taken a writ of summons (accompanied by statement of claim, list of claimant’s witness, statement on oath of the claimant’s witness, list of documents and copies of the documents to be relied upon by the claimant) against the defendant dated and filed on 21st January 2011 praying for the following reliefs – 1. A declaration by this Honourable Court that the dismissal of the claimant by the defendant is wrong, anomalous and against the rules of natural justice. 2. A declaration that the claimant’s dismissal be changed to resignation. 3. The sum of N520,638.02 being the outstanding balance of the amount credited to the claimant’s account as the proceed of the 750,000 units of shares out of the total sum of N796,738.02 (Seven Hundred and Ninety-Six Thousand, Seven Hundred and Thirty-Eight Naira, Two Kobo). 4. The sum of N1,717,489.51 (One Million, Seven Hundred and Seventeen Thousand, Four Hundred and Eighty-Nine Naira, Fifty-One Kobo) which was the amount of the claimant’s NSITF pension Scheme as at 7th December 2006 and the subsequent amount that accrued from 2006 till 2008 that was remitted to AIICO Pension Funds after the claimant was dismissed be paid to him. 5. The deductions made from the claimant’s salary for National Housing funds be paid to the claimant. Other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments be calculated and paid the claimant up till the final determination of this suit. 6. The sum of N5,000,000.00 (Five Million Naira only) being special damages for embarrassment, harassment, intimidation and psychological trauma caused the claimant. 7. The sum of N2,000,000.00 (Two Million Naira only) being general damages. 8. Cost of this action. In reaction, the defendants filed an amended joint statement of defence and joined issues with the claimant by denying liability for the claims and sought the dismissal of the action as misconceived. At trial, the claimant testified on his own behalf as CW, while Ahmed Babatunde Babalola, a Training Officer with the 1st defendant, testified for the defendants as DW. At the conclusion of evidence, parties (starting with the defendants) were asked to file and serve their respective written addresses. This they did. The defendants’ written address is dated and filed on 18th July 2014, while that of the claimant is dated 21st January 2015. The defendant also filed a reply on points of law dated 17th February 2015 but filed on 23rd February 2015. From the pleadings, the case of the claimant is that he was employed by the 1st defendant on probation on 13th August 1992 (evidenced by Exhibit A, the offer of probationary employment) under the International Banking Division of the Bank in Lagos. He was then formally confirmed by a letter dated 16th July 1993 (Exhibit B). That while in the employment of the 1st defendant, he was severally promoted (see, for instance, Exhibits C and D) as he worked diligently and conscientiously, observing his annual leave only thrice, the third being from 12th December 2007 and to end on 23rd January 2008. To the claimant, he put in 16 years of service till 27th May 2008 when he was finally dismissed from employment. The events that led to his dismissal are that while he was on his annual leave, some branch operators and management allegedly violated the operational and credit procedures of clearing cheques of Joseanne Global Resources Limited. Upon resumption from leave, that he discovered this when he saw one of the 1st defendant’s staff (Yinka Omidiora) with Zenith Bank cheques to the tune of N11.65 Billion that should have been tendered at the clearing house. He accosted her on this and instructed that she returns the cheques to the clearing house, which she was unable to do, the clearing house was yet to open. That the 1st defendant’s headquarters became interested in knowing what was happening. He was accordingly queried, which query he answered (Exhibit E). He was later invited to the 1st defendant’s headquarters in Lagos to explain his position (Exhibit F). That on arrival he was asked to go to the Security Department, from whence he was whisked away to Alagbon Police Station where he was detained for 3 days. A panel of inquiry and disciplinary committee was set up on the matter before which he appeared. To the claimant, the Head of Internal Control who was supposed to relief him of his duties during the period he was on leave was a member of the disciplinary committee. That fair hearing was not accorded him in the panel as tempers were high and nobody was ready to listen to their explanations. That while the Branch Management and Branch Operators were indicted for inducement and connivance, he was not and despite being tried before a court of competent jurisdiction; yet he was dismissed from employment (Exhibit G) for an incident that occurred when he was on leave. In consequence of this dismissal, he had to file this suit claiming the reliefs already enumerated. The defendant framed three issues for determination, namely – 1. Whether in view of the evidence and claims, the name of the 2nd defendant ought not be struck out from the action for failure to disclose a cause of action or reasonable cause of action against him. 2. Whether the claimant’s dismissal from the employment of the 1st defendant was not lawful. 3. Whether in view of the evidence adduced, the claimant is entitled to the reliefs claimed. Regarding issue 1, the argument of the defendants is that even as MD/CEO of the 1st defendant, the 2nd defendant is an incompetent party in this suit since no cause of action or reasonable cause of action has been disclosed against him; and as agent of the 1st defendant (a disclosed principal), the 2nd defendant cannot be sued for acts he did on behalf of the 1st defendant, citing Leventis Tech. Ltd v. Petrojessica Ent. Ltd [1992] 2 NWLR (Pt. 224) 459 and Ukpanah v. Ajaya [2011] All FWLR (Pt. 589) 1163 at 1182 – 1183. The defendants accordingly urged that the name of the 2nd defendant be struck out. On issue 2, the defendants argued that the claimant was lawfully dismissed as he was grossly negligent in the discharge of his duties as Branch Control Officer of the Port Harcourt Branch of the 1st defendant, which duties are to principally detect, avert and report activities of other staff and non-staff alike that are inimical to the health and well-being of the 1st defendant. That the claimant was to act as a check on other operation staff of the branch especially in monitoring their official transactions to ensure compliance with rules of the 1st defendant and banking rules generally. In this regard, that he was the “policeman” of the branch, not answerable to the Branch Manager or any other officer of the branch but to the Chief Inspector and higher management of the Bank. That it is not the case of the claimant that the bank did not lose money through cheques suppression but that he was on annual leave when the lid was blown open on the fraudulent transaction and so could not be expected to detect and avert the fraud. To the defendants, this alibi cannot stand given paragraphs 15 and 16 of the claimant’s statement of claim and paragraph 15 of his sworn deposition. To the defendants, the claimant resumed from his annual leave on 23rd January 2008 and the cheques in question were received in the Branch from clearing on 24th January 2008; meaning that the claimant was already back to his seat at the branch when the cheques were received. The defendants continued that the claimant’s defence of finding the cheques with a certain Yinka Omidiora who informed him that the Branch Manager, Mr. Ogidi, instructed that the cheques be withheld against banking regulations cannot stand as the claimant took no meaningful steps worthy of a “policemen” that his duties called for to avert the looming danger of having to lose N11.6 Billion to the fraudsters. In any event, that the claimant in his reply to the query issued to him apologized over the incident saying it was the last he wished to happen in his career, referring to Exhibit BAB4. That by Article 4 of Exhibit BAB7, what the claimant did amounts to gross misconduct deserving of summary dismissal. That the claimant failed to measure up to the sacred responsibilities trusted upon him by the duties of his office, referring to NAB Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) 450 at 468, PC Eze v. Spring Bank Plc [2011] 18 NWLR (Pt. 1278) 113, Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577 and Daodu v. UBA Plc [2004] 9 NWLR (Pt. 878) 276. The defendants then urged the Court to hold that the dismissal of the claimant was not unlawful. Regarding issue 3, the defendants submitted that the claimant is not entitled to any of the reliefs he claims. That relief 2, which seeks a declaration to change the dismissal to resignation, is incompetent as a declaration cannot at the same time be a marching order to the defendants to convert the dismissal to resignation; and a fortiori, the claimant cannot by singular relief seek a declaration and an order of the Court, which is what relief 2 portends. Alternatively, that the claimant even failed to lead evidence in proof of his entitlement to the declaration sought; for a claimant succeeds on the strength of his case and not on the weakness of the defence, citing CPC v. INEC [2012] 13 NWLR (Pt. 1317) 260 at 290, Zenith Bank Plc v. Ekereuwen [2012] 4 NWLR (Pt. 1290) 207 at 229 and Bello v. Eweka [1981] 1 SC 101. As for relief 3, the defendants argued that proceeds of the sale of the 750,000 units of Wema Bank shares were duly paid into the account of the claimant as shown in Exhibit BAB6. That deductions were lawfully made in the account on account of unutilized upfront payments earlier made into the account which upon dismissal the claimant was no longer entitled to. That the entries of 4th March 2010 in the said exhibit are unearned income to the claimant hence the reversals of the entries. That since what the defendants did is lawful, it is for the claimant to show the Court how unlawful it is, which the claimant failed to do. Regarding relief 4, the defendants submitted that the claimant failed to discharge the onus of proof that he was entitled to the sum of N1,717,409.51 as his contribution to NSITF and/or the Pension scheme under the Pensions Reform Act. That all the claimant showed to be entitled to is the sum of N1,027,961.08 as in Exhibit O, which sum is already in his account with AIICO pension. That if the claimant claims any other sum but this, the onus is on him to proof same; and having failed to prove the assertion, his claim must fail, citing Zenith Bank Plc v. Ekereuwen (supra) and Daodu v. NNPC [1998] 2 NWLR (Pt. 538) 355. On relief 5, the defendants argued that even though the claimant did not by any means of specificity show how much he was entitled to as deductions from his salaries under the National Housing Fund, yet the 1st defendant showed by Exhibit BAB5 that it remitted all deductions to the Federal Mortgage Bank of Nigeria along with other members of the 1st defendant. That the claimant owes a duty to himself to open an account with a primary mortgage institution to enable him to access the fund. As for the claimant’s claim to “other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments”, the defendants submitted that the claims are incompetent, unascertainable and incapable of being granted. In any event, that the claims are too general and not made to any specific amount; and they merely attempt to set the Court on a guess work. In any case, that because the claimant was dismissed, he is not entitled to such claims, referring to PC Eze v. Spring Bank Plc [2011] 18 NWLR (Pt. 1278) 113 at 141 – 142. In terms of reliefs 6 and 7, which claim for special and general damages, the defendants submitted that they are incompetent in a claim for alleged wrongful dismissal in a simple master/servant contract as the damages awardable is salary in lieu, not damages for injured feelings or for loss sustained from the fact that the dismissal itself makes it more difficult to obtain alternative employment, citing NAB Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) 450 at 471. In conclusion, the defendants urged the Court to dismiss this case. The claimant on his part framed two issues for the determination of the Court, namely – 1) Whether the claimant’s dismissal was unlawful and wrongful in the light of the fact that the claimant should not be held liable for an act/fraud which occurred when he was on leave which was approved by the Head of the Internal Unit through the intranet and the 1st defendant’s liability/failure to demand or make repeated demands to the claimant to resume work for the period (12th December 2007 – 23rd January 2008) which tantamount to condonment/waiver. 2) Whether the claimant is entitled to the reliefs sought. Regarding issue 1), the claimant submitted that he put in 16 years of meritorious service while with the 1st defendant and was never issued a query, neither did he derelict in his duties prior to the massive fraud in question. That he was not around when the fraud was perpetrated as he was on his annual leave and so could not stop the cheque suppression. To the claimant even when under cross-examination DW stated he was not aware that the claimant was on leave, he still did not tell the Court what the 1st defendant did (such as issuing a query to the claimant for not coming to work or demanding that he comes to work) when it became aware that the claimant was not coming to work. That this shows that the claimant was validly on leave (a fact attested to by the defendants in paragraphs 6 and 7 of their amended statement of defence) for the duration 12th December 2007 to 23rd January 2008; even if not validly on leave, that the 1st defendant thereby condoned/waived the infraction, referring to Mariam v. University of Ilorin Teaching Hospital Management Board [2013] 35 NLLR (Pt. 103) 131 – 132 NIC. In consequence, that Exhibit BAB1 (the 1st defendant’s query dated 29th January 2008) is invalid and should be declared null and void and of no effect whatsoever on the ground that the 1st defendant had condoned the act being queried. In like manner, that Exhibits BAB2 and BAB3 wherein the claimant was found to have committed dereliction of duty and reneged in performing his oversight functions are null and void and of no effect whatsoever as he was observing his annual leave when the cheque suppression occurred and so should not be held liable for the fraud which occurred, referring to paragraphs 7, 10, 11 and 14 of his additional statement on oath. The claimant went on that he has no document to show that he was on leave because of the 1st defendant’s penchant and unfair practice of not issuing any letter to its staff to proceed on leave after approving same. Furthermore, that the 1st defendant does not issue pay slips to its employees so that they will not use it as evidence in future. That all of this amounts to unfair labour practice, something that this Court has jurisdiction over, citing Mr. Charles Obazuaye v. First Bank of Nig. [2013] 38 NLLR (Pt. 116) 28 NIC. To the claimant, contrary to the submissions of the defendant, he it was who discovered the fraud when he saw one of the 1st defendant’s staff, Yinka Omidiora, with Zenith Bank cheques to the tune of N11.65 Billion and he immediately instructed her to return the cheque to the clearing house, referring to paragraphs 17 and 18 of the statement of claim. That it is, therefore, unlawful for him to be dismissed when he acted promptly and timeously (and so did not contravene the provisions of Article 4(iv)(a) and (ix) of Part II of Exhibit BAB7) when he discovered the fraud and did not derelict in his duty; and he should not be held for the failure, negligence, ineptitude and fraudulent act of other staff of the 1st defendant who actually perpetrated the fraud or could have averted the fraud when he was on leave, referring to paragraphs 15 and 16 of his statement of claim and paragraphs 15 – 18 of his statement on oath. The claimant continued that contrary to the submission of the defendants he resumed work on 24th January 2008 and the cheque was suppressed by Yinka Omidiora before he resumed work on 24th January 2008, referring to Exhibit E and Article 3(f)(a), Section 2 of Part II of Exhibit BAB7, which to him provides plus one day travelling time each way. To the claimant, the fraud was perpetrated by Patrick Fernandes due to the suppression of the cheque belonging to the customer; and the cheque was suppressed by Yinka Omidiora, which the Branch Manager encouraged and authorized, referring to Exhibit BAB2. The claimant went on that the Disciplinary Committee was selective and biased in the course of their investigation. That Mr. Farounbi, the Head of Internal Unit of the Claimant’s department, who ought to have relieved the claimant when he was on leave was never summoned nor queried. That this is vindictive, citing Mariam v. University of Ilorin Teaching Hospital Management Board (supra). Also vindictive and unlawful is his dismissal. The claimant then urged that the Court declares his dismissal unlawful. On issue 2) i.e. whether he is entitled to the reliefs sought, the claimant submitted that he is given that regarding relief 1 his dismissal is unlawful, vindictive, illegal, null and void and of no effect whatsoever. On relief 2, the claimant referred to section 15 of the NIC Act 2006 and urged that under its equitable jurisdiction, this Court can set aside a wrongful and unjust dismissal and substitute same with termination, citing Mr. Charles Obazuaye v. First Bank of Nig. [2013] 38 NLLR (Pt. 116) 87 – 88 NIC. Also, that in view of his submissions regarding issue 1) and the fact that the prevailing custom in the banking industry is that termination makes it almost impossible for the victim to secure employment with another bank his dismissal should be changed to resignation, urging the Court to so hold. Regarding relief 3, the claimant submitted that after his dismissal, he sold 750,000 unit of shares of the 1st defendant and the total amount resulting from sale accrued to N796,738.02, which was credited to his account. That when he approached the 1st defendant to withdraw same, he was told that he could only withdraw N276,100 leaving a difference of N520,638.02 as reflected in the statement of account, Exhibits N, O and P. That he is entitled to the said balance of N520,638.02 since the defendants’ argument that because of the dismissal he is not so entitled cannot hold water. On relief 4, the claimant asserted that under cross-examination, he answered that he has not approached the NSITF for his pension. That he thereafter went to the Trust Fund Pensions Managers head Office at Onipanu, Lagos and was told that it is Trust Fund Pension Managers that have taken over the matter of NSITF. That they confirmed that NSITF schemes and remittances to them began in July 1994 and ended in December 2004. That they expected that the claimant’s former employer, the 1st defendant, to send remittances of the claimant’s monthly pension saving from July 1994 to December 2004 according to the format of the form given to the claimant by the trust fund pension managers. That when he went to the 1st defendant to get the monthly deductions, officials of the 1st defendant bluntly refused to attend to him on the ground that he had taken the 1st defendant to Court. The claimant then referred the Court to section 50 of the Pension Reform Act 2014, which permits existing pension schemes prior to the Act to continue to exist. That the 1st defendant by sections 50(1), 51, 52 and 53(1), (2) and (3) of the Pension Reform Act 2014 is under a duty to send evidence of remittance of the claimant’s monthly pension savings from July 1994 to December 2004 as requested by the Trust Fund Pension Managers to enable the claimant get his pension irrespective of whether his dismissal was lawful or unlawful. The claimant then prayed the Court to direct Trust Fund Pension Managers to pay the his pension from 1994 to 2004 in compliance with the Pension Reform Act 2014. On the claim for N1,717,489.51, the claimant submitted that this is the sum that accrued to him from January 2005 to February 2007 which was not remitted to AIICO Pension Managers by the 1st defendant. That Exhibit O clearly shows the employee’s and employer’s contributions of March 2007 to May 2008. That the Trust Fund Pension Managers confirmed that NSITF schemes and remittances to them began in July 1994 and ended in December 2004, while AIICO Pension Managers Limited vide Exhibit O confirmed contribution details from March 2007 to May 2008. That it follows, therefore, that the contributions of January 2005 to February 2007 were missing and withheld by the 1st defendant and so the onus is on them to produce the original statement of account confirming the claimant’s pension contribution amounting to “N1,717,409.51”, referring to paragraphs 15 – 17 of the claimant’s additional statement on oath and paragraphs 16 – 18 of the reply to the defendant’s statement of defence. Relying on “section 149(d) of the Evidence Act 2004” and Barr. Ihuoma Udeagha & anor v. Matthew Omegara & 3 ors [2010] 11 NWLR (Pt. 1204) 199, the claimant argued that the 1st defendant’s refusal to produce the original statement of account confirming the claimant’s pension contribution amounting to “N1,717,409.51” should be presumed against it, urging the Court to rule in favour of the claimant. The claimant went on to pray the Court to direct the 1st defendant to issue the letter forwarding the pay slip to the claimant to enable him access his pension with AIICO Pension Managers Limited and to direct AIICO Pension Managers Limited to pay him his pension in compliance with the Pension Reform Act 2014. Regarding relief 5, the claimant relying on Major James Ado v. Hon. Commissioner for Works, Benue State & 4 ors [2007] 15 NWLR (Pt. 1058) 429 at 443 and IHABUHMB v. Anyip [2011] 12 NWLR (Pt. 1280) 1 at 20, the claimant submitted that the law is that an employee dismissed in breach of his contract cannot treat his contract as subsisting and sue for an account of profits which he should have earned to the end of the contracted period; rather he must sue for damages for wrongful dismissal and must of course mitigate these damages as far as he reasonably can. On this basis, the claimant submitted that having meritoriously served the 1st defendant for 16 years, he is entitled to be paid his entitlements including but not limited to his terminal benefits and emolument for the 16 years, citing Article 8 of Part II, section (1), of Exhibit BAB7, which provides for negotiation of pension and gratuity schemes between the domestic unit of the union and the individual/member companies bases on the concept of total emolument. That contrary to the argument of the defendants, the claimant submitted that by Article 8 of Part II, section (1), of Exhibit BAB7, the 1st defendant is under a duty to pay the claimant his gratuity. The claimant accordingly prayed the Court to direct the 1st defendant to liaise with the Nigeria Employers Association of banks, Insurance and Allied Institutions (NEABIA) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) to calculate his gratuity as stipulated in Article 8 of Part II, section (1), of Exhibit BAB7. The claimant also prayed that this Court directs the 1st defendant to give him all the necessary assistance to access his money with the Federal Mortgage Bank of Nigeria. On relief 6, the claimant referred the Court to ASESA v. Ekwenem [2009] 13 NWLR (Pt. 1158) 410 SC and Gege v. Nande [2006] 10 NWLR (Pt. 988) 256 CA at 288 and then submitted that he particularized and proved his claim for special damages under paragraph 38(a) – (d) of his statement of claim. He went on that that the unlawful and unjust dismissal inflicted untold hardship on him in the nature of the his unlawful detention at Alagbon for 3 days where he was tortured, traumatized and hence suffered mental torture, referring to paragraph 22 of his statement on oath and paragraph 13 of his further additional statement on oath. Citing Mr. Chrles Obazuaye v. First Bank of Nig. (supra) and section 19(d) of the NIC Act 2006, the claimant submitted that this Court has the power to award compensation or damages, urging the Court to so do. Regarding relief 7, the claimant, relying on Iyere v. Bendel Feed and Flour Ltd [2008] 18 NWLR (Pt. 1119) 300 SC at 347, submitted that given the injury he suffered, he is entitled to general damages, urging the Court to award same to him as claimed. As for relief 8 on cost of this action, the claimant simply submitted that he incurred a lot of expenses in filing and prosecuting this case including but not limited to payment of legal fees; and that cost follows events. The claimant then urged the Court to award cost of this action in his favour. In conclusion, the claimant urged the Court to enter judgment in his favour. The defendant reacted on points of law. The claimant in his written address had submitted that the defendant’s Exhibit BAB1, the query to the claimant, is null and void since the 1st defendant did not query the claimant as to his absence from work. To the defendants, the argument of the claimant here is misconceived since he was not queried for absenteeism from work but for dereliction of his duties that led to loss of a colossal sum by the 1st defendant. Also that Exhibit BAB1 was issue almost simultaneously with the time the fraud of cheque suppression was discovered. To the defendants then, they cannot be said to have waived any rights to issue Exhibit BAB1 in the circumstances of this case. On the issue of the alleged admission by the defendants that the 1st defendant admitted the claimant’s claim that he was on leave at the time the fraud was discovered, the defendants submitted that this contention cannot qualify as an admission in law as a fact not asserted or claimed by one party is not capable of being admitted by another. To the defendants, the fraud matured on 24th January 2008 and the claimant was in the office on that same date when he was queried; and if the claimant did not claim that he was on leave on 24th January 2008, it becomes illogical for the 1st defendant to admit what was not alleged. That the claimant did not plead that he was on leave between 23rd and 24th January 2008, when as a diligent internal control officer he ought to have detected the fraud, urging the Court to discountenance the submission of the claimant in that regard. On the issue of unfair labour practices in the 1st defendant’s workplace, that the claimant did not raise these issues in his pleadings since they are issues of facts to enable the defendants react appropriately. That it is incompetent of counsel to surreptitiously raise that issue at the address stage and seek to rely on the cases cited in support of the trite law that this Court has jurisdiction in such matters. To the defendants, no party is allowed to lead evidence or canvass a position different his pleaded facts before the Court, citing NIPC v. Thompson Organisation [1969] 1 All NLR 138, Papersack Nig. Ltd v. Odutola [2004] 13 NWLR (Pt. 891) 509 and Makwe v. Nwukor [2001] 14 NWLR (Pt. 733) 356; neither should counsel to the claimant take the defendants by surprise, citing Bunge v. Government of Rivers State [2006] 12 NWLR (Pt. 995) 573 SC. The defendants then urged the Court to discountenance the claimant’s submissions and dismiss the claimant’s action in its entirety. COURT’S DECISION I heard learned counsel and considered all the processes and submissions made in this case. I start off with the claimant’s counsel’s reference to “section 149(d) of the Evidence Act 2004” in paragraph 7.11 of the claimant’s written address. Does counsel not know that the Evidence Act 2004 is no more and has been repealed by the Evidence Act 2011? In considering the merit of the case, the defendants had raised the preliminary issue of the competence of the 2nd defendant being a party in this suit given that no cause of action or reasonable cause of action disclosed against him by the claimant, and that as agent of the 1st defendant (a disclosed principal) the 2nd defendant appropriately cannot be a party in this suit. The claimant did not react to this submission. So he must be taken to have conceded the point. In any case, the truth is that nowhere in the processes of the claimant did he disclose any case, claim, cause of action or reasonable cause of action against the 2nd defendant. Accordingly, I agree with the defendants that the name of the 2nd defendant ought to be struck off this suit; and I so order. This leaves out the twin issues of whether the claimant’s dismissal was lawful and whether the claimant is entitled to the reliefs he claims. In both regards, there is the need to correct an impression created by the defendants in their submissions. When the claimant as per relief 5 prayed for “other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments”, the defendants had submitted that the claims are incompetent, unascertainable and incapable of being granted. One of the grounds upon which they premised their contention was that because the claimant was dismissed, he is not entitled to such claims. In other words, “a servant that has earned his dismissal is not entitled to such claims”. This statement of principle represented the old dispensation. Whether dismissal is earned or not, the new dispensation is that all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC and Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC. All the employee has to do is show an entitlement and that he has earned same. Regarding the first issue i.e. whether the claimant’s dismissal was lawful, the argument of the claimant is that he was on annual leave when the events leading to the suppression of cheques that culminated in the fraud complained of took place. In answer, the defendant’s argument is that the claimant had resumed from his annual leave. To explain his side of the story, the claimant had argued in his written address that he has no document to show that he was on leave because of the 1st defendant’s penchant and unfair practice of not issuing any letter to its staff to proceed on leave after approving same. Furthermore, that the 1st defendant does not issue pay slips to its employees so that they will not use it as evidence in future. That all of this amounts to unfair labour practice, something that this Court has jurisdiction over, citing Mr. Charles Obazuaye v. First Bank of Nig. [2013] 38 NLLR (Pt. 116) 28 NIC. To start with, that this Court has jurisdiction over unfair labour practice does not take away the duty cast on the claimant to prove an assertion as to his case. The defendant rightly argued that all these issues are issues of facts requiring pleading which the claimant did not do. The claimant cannot, therefore, at the address stage be bringing in facts that were not pleaded. That would be to take the defendant by surprise, which no Court should allow. It is too late in the day for the claimant to raise issues of unfair labour practice when the said facts were not pleaded. Arguments of the claimant in that regard are accordingly discountenanced for purposes of this judgment. We are still left out with the lawfulness of the claimant’s dismissal and the defence of the claimant that he was on annual leave at the relevant time. Exhibit BAB1 is dated 29th January 2008 and is the query issued to the claimant by the defendant asking him “to adduce reasons” for “[reneging] in exercising [his] oversight function of daily monitoring of inward and outward clearing instruments which could have prevented the clearing fraud perpetrated…” The claimant’s handwritten answer to the query presumably is Exhibit E, which is not dated. Now, the claimant’s argument in this case is that, contrary to the submission of the defendants, he resumed work on 24th January 2008, not 23rd January 2008; and the cheque was suppressed by one Yinka Omidiora (who incidentally was not called as a witness) before the claimant resumed work on 24th January 2008, referring to Exhibit E and Article 3(f)(a) of Part II (Section 2) of Exhibit BAB7, which to him provides plus one day travelling time each way. A look at Exhibit E shows that in paragraph 5 at page 2, all the claimant stated therein is that “…I was not around in the branch as I observed part of my annual leave until I returned in January 2008”. Even under cross-examination, the claimant first merely stated that “I was on my annual leave between December 2007 and January 2008” before later asserting that “I resumed work from leave on January 24, 2008” and “the fraud was discovered on the morning of January 24, 2008”. Now, having to return “in January 2008” or being “on…annual leave between December 2007 and January 2008” is not proof of resuming from leave on 24th January 2008 as the claimant argues; and Article 3(f)(a) of Part II (Section 2) of Exhibit BAB7 even in allowing for “one day travelling time each way” is also not proof that the claimant actually resumed from leave on 24th January 2008. The claimant would, however, continue in paragraph 6 of Exhibit E thus: “Unfortunately the week I resumed was when it was discovered that some cheques were suppressed and they were very heavy amounts”. The evidence of the claimant as per paragraph 15 of his sworn deposition given paragraph 15 of his statement of claim is as follows: ‘That in 2007, I commenced my annual leave on 12th December, 2007 and was to resume work on 23rd January, 2008 which was a Thursday”. It is this statement of the claimant that the defendant relied on to submit that the claimant resumed work form his annual leave on 23rd January 2008. I find it curious that for a query dated 29th January 2008 (Exhibit BAB1), the claimant’s reply would be undated, his answer to the query would state he resumed from annual leave “in January 2008”. The claimant cannot be answering to a query of 29th January 2008 and yet not know that he resumed from annual leave on 24th January 2008 as to state this fact that categorically in his answer to the query. It took him awhile under cross-examination for him to assert categorically that he resumed from annual on 24th January 2008. Even when he was preparing his pleadings, all he stated in his respective paragraphs 15 of his statement of claim and sworn deposition is that he “was to resume work on 23rd January, 2008”. This averment is of course evasive for it does not state when he resumed from leave. The evasiveness of the claimant was also exhibited during cross-examination when the claimant held back in telling the Court the name of his mortgage institution. It took awhile (and hesitation on his part) for him to say, “Okay, it is Wema Homes”. In terms of the oral testimony of the claimant, there is accordingly much doubt as to his credibility given his evasiveness noticeable not just during his cross-examination but also in his sworn deposition. For this reason, I do not belief that the claimant resumed from his annual leave on 24th January 2008. I believe the defendant that the claimant resumed from his annual leave on 23rd January 2008. This means that some of the events leading to the cheque suppression and the fraud complained of occurred when the claimant resumed from his annual leave; and I so find and hold. This being the case, the next issue is whether the claimant, while at work, derelict in his oversight duties as to merit the dismissal meted on him by the defendant. A careful reading of Exhibit E, the claimant’s answer to the query issued to him, will show that the claimant owned up to being negligent. At page 1, he acknowledged not always being present in the branch; and although he tried to explain the difficulties he had at the place of work he ended up at page 3 with the words: “I do not want to justify anything though rather than the fact that what happened is not what I pray for, or ever wanted for a bank that I work for and provide for my daily bread and others I am indeed sorry for this situation sir”. Why would the claimant be sorry for something that he claims occurred when he was not around and for which he also claims he cannot be held responsible for? It is curious for the claimant to feel sorry, voice it out and still claim to be faultless. The case of PC Eze v. Spring Bank Plc [2011] 18 NWLR (Pt. 1278) 113 SC at pages 131 – 132, relying on Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577, defined gross misconduct as conduct of an employee which is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and the employee. Exhibit G dismissed the claimant for “an act of gross misconduct”, after the claimant was queried, which he answered, and a disciplinary hearing conducted against him. Exhibit BAB2 dated 5th February 2008, is a report of the investigation carried out on the clearing of related frauds perpetrated on Joseanne Global Resources Ltd account and 7 other related account at Port Harcourt Branch. Paragraph 2.4.2 on Cheque suppression indicted the claimant in the following words – The Branch Compliance Officer (BCO), Wale Aina reneged in exercising his oversight function of daily monitoring of inward and outward clearing instruments which could have in a way prevented the clearing fraud perpetrated on this account. Exhibit BAB3 dated May 15, 2008 is the report of the disciplinary committee which held on March 6 and May 13, 2008 at page 4 equally also indicted the claimant for reneging on his oversight functions of daily monitoring of inward and outward clearing cheques and failure to report the flagrant disregard for bank credit and operational procedures but rather plated along. In fact, Exhibit BAB3 stated that the claimant pleaded guilty to the offence of dereliction of duty. All of this only shows the conduct of the claimant as one that has undermined the relationship of confidence which should exist between him and the defendant. The claimant’s conduct accordingly justified the dismissal meted on him by the defendant. The claimant argued that he was not given fair hearing. As I indicated, evidence abounds in the case file that the claimant was queried, he answered the query and a disciplinary hearing was conducted on him, which he attended. Fair hearing is opportunity. The claimant cannot say he had no such opportunity. I do not accordingly agree with the claimant that he was not given fair hearing. For all these reasons, I do not agree with the submissions of the claimant that his dismissal was vindictive, unlawful, wrong, anomalous and against the rules of natural justice. This being so, relief 1 of the claimant fails and is accordingly dismissed. Relief 2 prays for a declaration that the claimant’s dismissal be changed to resignation. In this regard, in paragraph 7.3 of his written address, the claimant argued that dismissal can be substituted with termination by this Court. However, in paragraphs 7.4 of same written address, the claimant would however argue that his dismissal be changed to resignation. The claimant appears to view termination and resignation as being one and the same for purposes of his suit. When the claimant was addressing the issue of whether he is entitled to the reliefs he prayed for, the claimant had alluded to the fact that the prevailing custom in the banking industry is that termination makes it almost impossible for the victim to secure employment with another bank, for which then his dismissal should be changed to resignation. This allusion to prevailing custom at the stage of address is wrong of the claimant’s counsel. By sections 16 – 19 and 73 of the Evidence Act 2011, except judicially noticed, custom (prevailing custom as the claimant’s counsel puts it) must be proved, and such proof is by other than the claimant himself – not to talk of it being by counsel as is presently the case in this suit. Having, however, held that the dismissal of the claimant is not wrongful or unlawful, the question of changing it to resignation does not arise; and the plea to the sentiments of “prevailing custom…[making] it almost impossible for the [claimant] to secure employment with another bank, for which then his dismissal should be changed to resignation” cannot be tenable and so is hereby rejected. Relief 2 accordingly fails and so is dismissed. Relief 3 is for “the sum of N520,638.02 being the outstanding balance of the amount credited to the claimant’s account as the proceed of the 750,000 units of shares out of the total sum of N796,738.02…”. The defendant acknowledged that the proceeds of the sale of the 750,000 units of Wema Bank shares were duly paid into the account of the claimant as shown in Exhibit BAB6. The defendant went on that deductions were lawfully made in the account on account of unutilized upfront payments earlier made into the account which upon dismissal the claimant was no longer entitled to. Here, the defendant seems to assume the fallacy of its earlier submission that because the claimant was dismissed, he is not entitled to any claim in virtue of the dismissal. I held this submission to be false as whether dismissal is earned or not, all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. The shares sold were the claimant’s. The defendant is not contesting this fact. The proceeds of their sale must accordingly go to the claimant; I so rule. For this reason, relief 3 succeeds. The defendant must, therefore, pay to the claimant “the sum of N520,638.02 being the outstanding balance of the amount credited to the claimant’s account as the proceed of the 750,000 units of shares out of the total sum of N796,738.02…”; and I so order. Relief 4 is for “the sum of N1,717,489.51 (One Million, Seven Hundred and Seventeen Thousand, Four Hundred and Eighty-Nine Naira, Fifty-One Kobo) which was the amount of the claimant’s NSITF pension Scheme as at 7th December 2006 and the subsequent amount that accrued from 2006 till 2008 that was remitted to AIICO Pension Funds after the claimant was dismissed be paid to him”. By this relief, the claimant seeks two things: the sum of N1,717,489.51, which to the claimant is the amount of his NSITF pension scheme as at 7th December 2006; and the subsequent amount (which the claimant did not reveal, disclose or state) that accrued to him from 2006 till 2008 and which was remitted to AIICO Pension Funds after his dismissal from the employment of the 1st defendant. I have a number of issues with all of this. First, the claimant wants this Court to grant to him “the subsequent amount that accrued from 2006 till 2008 that was remitted to AIICO Pension Funds after the claimant was dismissed”. As I stated, this said subsequent amount is not disclosed by the claimant; and AIICO pension Funds that the claimant wants to be ordered to pay this sum (see paragraph 7.13 of the claimant’s written address and note that in paragraph 7.9 of his written address, the claimant also prayed that the Trust Fund Pension Managers be ordered to pay to him his pension from 1994 to 2004) is not a party to this suit – nor is the identity of the Trust Fund Pension Managers talked of disclosed. Secondly, in addressing relief 4 in paragraphs 7.6 to 7.8, counsel to the claimant told the story of what the claimant did (i.e. the visit to the Trust Fund Pension Managers) after testifying under cross-examination. This is giving evidence in an address, which cannot be condoned in law. Thirdly, even in telling the story of the claimant, one of the prayers of the claimant in paragraph 7.9 of his written address is that this Court directs the 1st defendant to remit his monthly pension savings from 1994 to 2004 and the pay slip of the claimant to the Trust Fund Pension Managers. This order desired by the claimant here is not what he is asking for in his reliefs especially relief 4 as couched. Fourthly, the N1,717,489.51 the claimant claims as per relief 4 is “the amount of the claimant’s NSITF pension Scheme as at 7th December 2006”; this means that it is for the period up to 7th December 2006. However, in paragraph 7.10 of the claimant’s written address, the claimant stated this sum to be for the period January 2005 to February 2007. The inconsistency evident here shows that the claimant does not actually know what he wants. For all these reasons, I am hard put to grant relief 4. Relief 4 accordingly fails and so is dismissed. Relief 5 is for “the deductions made from the claimant’s salary for National Housing funds be paid to the claimant. Other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments be calculated and paid the claimant up till the final determination of this suit”. The issue of National Housing Fund (NHF) deductions was not addressed by the claimant in his written address when he addressed the claim as per relief 5. The quantum of the deductions for NHF was not disclosed to the Court. It is difficult, therefore, for the Court to make any award in that regard. Even when the claimant prayed that this Court directs the 1st defendant to give him all the necessary assistance to access his money with the Federal Mortgage Bank of Nigeria, that prayer unfortunately is not captured by relief 5 as to be granted by the Court. The claim for NHF deductions must accordingly fail and so is dismissed. The claimant under relief 5 also prayed the Court to direct the 1st defendant to liaise with the Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) to calculate his gratuity as stipulated in Article 8 of Part II, section (1), of Exhibit BAB7. A look at Article 8 of Part II, section (1), of Exhibit BAB7 shows that it merely provides for negotiation at company level of pension and gratuity schemes between the domestic unit of the union and the individual/member companies based on the concept of total emolument. This provision cannot be interpreted as granting an entitlement to the claimant; even if it is interpreted as such (which I doubt), nowhere in the pleadings did the claimant plead that as a senior staff he is a member of ASSBIFI as to take the benefit of Exhibit BAB7, which is actually a 2005 collective agreement between NEABIAI and ASSBIFI. This Court in Aghata N. Onuorah v. Access Bank Plc unreported Suit no. NICN/ABJ/30/2011 the judgment of which was delivered on December 15, 2014 held that a senior staff such as the claimant seeking the benefit of a collective agreement must not only plead membership of the trade union in question but must lead documentary evidence to show actual membership of the trade union. The claimant in the instant case cannot take the benefit of Exhibit BAB7 (a collective agreement) without pleading and proving his membership of ASSBIFI. What all of this means is that the claimant has not shown any entitlement to “other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments” he claims. In any event, the claimant did not disclose to the Court in actual monetary terms the quantum of these “other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments”. The claim for “other entitlements including but not limited to the claimant’s terminal benefits, allowances and emoluments” must, therefore, fail and so is hereby dismissed. Reliefs 6, 7 and 8 are respectively for special damages, general damages and cost of the action. The special damages is “for embarrassment, harassment, intimidation and psychological trauma caused the claimant”. I agree with the defendant that the claimant did not make out a case for these reliefs. I agree with the claimant that section 19(d) of the NIC Act 2006 permits this Court to award compensation or damages in deserving cases; however, a case for it must be made and established by the claimant. In Baba v. Nigerian Civil Aviation Training Centre [1986] 5 NWLR (Pt. 42) 514, it was held that no compensation can be claimed in respect of injury done to the employee’s feelings by his dismissal nor in respect of difficulty in finding an alternative work; and by Onwuneme v. ACB Plc [1997] 12 NWLR (Pt. 513) 150 CA, damages for injury to reputation arising from wrongful dismissal are irrecoverable unless the injury results in a pecuniary loss. The claimant did not show any pecuniary loss to warrant the grant of these reliefs. Reliefs 6, 7 and 8 accordingly fail and so are dismissed. For the avoidance of doubt, only relief 3 for “the sum of N520,638.02 being the outstanding balance of the amount credited to the claimant’s account as the proceed of the 750,000 units of shares out of the total sum of N796,738.02…” succeeds. It is accordingly the order of this Court that the defendant shall within 30 days of this judgment pay to the claimant the said sum of Five Hundred and Twenty Thousand, Six Hundred and Thirty-Eight Naira, Two Kobo (N520,638.02) only being the outstanding balance of the amount credited to the claimant’s account as the proceed of the 750,000 units of shares out of the total sum of N796,738.02. Failing this, the said sum shall attract interest at 10% per annum until fully paid. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip