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REPRESENTATION:- I.O Barrah with him is A.G Ishiwu for the claimant M.O Liadi, with him are O. Ojibara with him is O.Bamigboye, S. Negbenebor, I.B Duru, A. Wigwe, T.D Kuku, T.Y Olufayo, Nnamdi Amaefule and Temitope Kuti for the defendant. JUDGMENT A complaint dated 17th of October, 2011 was filed by the claimant against defendant praying the following reliefs: 1. A declaration that the dismissal of the claimant from the employ of the defendant vide defendant’s letter dated March, 4th 2010 is ill-conceived, malafide, wrongful and unlawful same having been issued and effected without the claimant being indicted by the police and whilst police investigation is still on-going vis-à-vis allegation of stealing and fraudulent sales of 10,000 MTS of Automotive Gas Oil (AGO) reported to the police by the defendant. 2. A declaration that the defendant cannot dismiss the claimant from its (defendant’s) employ in regard to the alleged and purported involvement of the claimant in the fraudulent sales of 10,000 MTS of AGO without the claimant being indicted by the police as to his involvement and convicted secured in the appropriate court affirming his guilt. 3. A declaration that it is premature, wrongful and unlawful for the defendant to dismiss the claimant from its employ while investigation is still continuing by members of the Nigerian Police Force in regard to the alleged fraudulent sales of 10,000 MTS of AGO. 4. A declaration that until and unless the members of Nigeria Police Force conclude their investigations into the fraudulent sales of 10,000MTS of AGO involving the claimant and appropriate due process is followed (depending on the outcome of the police final findings), the defendant cannot invoke the disciplinary provision of the claimant contract of employment to dismiss the claimant for his alleged involvement in the fraudulent sales of 10,000MTS of AGO. 5. A declaration that it is wrongful, unlawful and illegal on the part of the defendant to dismiss the claimant from its employ for alleged packaging of non-performance oil and gas facilities without the claimant being availed detailed particulars of the alleged packaged facilities and being afforded opportunity of being heard in regard to the allegation thus breaching the claimant’s constitutional right to fair hearing enshrined in S.36 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria. 6. AN ORDER of this court setting aside the defendant’s purported dismissal letter dated March 4 2010 (albeit delivered to the claimant on December, 9 2010) as being unlawful, ill-conceived, malafide and wrong in law. 7. A declaration that it is wrongful and ultra vires the power of the defendant to suspend the claimant without pay since August 9, 2009 when same has not being provided for in the claimant contract of employment with the defendant. 8. AN ORDER of this Honourable court directing that the defendant pay the claimant his full entitlements from August 2009 until the completion of police investigations into the fraudulent sales of 10,000MTS of Automotive Gas Oil AGO (PARTICULARS OF WHICH ARE CONTAINED IN PARAGRAPH 40 OF THE STATEMENT OF FACTS). 9. AN ORDER for the payment of the sum of N150,000,000.00 (ONE HUNDRED AND FIFTY MILLION NAIRA) as General Damages against the defendant (PARTICULARS OF WHICH ARE GIVEN AND CONTAINED IN PARAGRAPHS 41 OF THE STATEMENT OF FACTS) 10. AN ORDER for the payment of the sum of N4,500,000.00 (Four MILLION Five Hundred Thousand Naira Only) against the defendant which amount represents cost and expenses/funds already disbursed by the claimant to his solicitors/Barristers in prosecuting this action It is the claimant’s case that by a letter dated 28th of August 2006 he was employed by the defendant and confirmed on July, 01 2007. That he worked assiduously for the defendant which earned him commendation by the defendant for special elevation dated September, 22, 2008. That sometimes in July, 2009 the defendant lodged a formal complaint in the Police SCID in Yaba alleging the case of stealing and fraud against the him and one Mr. Charles Iheanacho the erstwhile Head of Marketing in Muri Okunola Branch. That the alleged case centered on alleged fraudulent sale 10,000MTS of Automotive Gas Oil (AGO) by one Messrs First deep waters Discovery Limited who diverted the proceeds of sales of the said AGO for other uses without any convert involvement of the claimant and Mr. Charles Iheanacho. That Messrs Firstdeep waters Discovery Limited is a customer of the defendant bank who applied for facilities with the defendant upon due diligence conducted by the defendant. The claimant stated he had no authority to approve same to Firstdeep waters Discovery Limited. That by a letter dated August 21 2009 he was suspended by the defendant contrary to the employee’s handbook and his account was unilaterally frozen by placing POST-NO-DEBIT on his Account and debiting same with loan obligation of the claimant. He continued that on 22nd of January, 2010 vide a text message, he was recalled to resume work. Upon resumption, he inquired to know the outcome of the police investigation, but was told by the Executive Director (South) to await the formal report from the Police. The claimant resumed at the Assets unit of the defendant’s bank under Enterprise Risk Management headed by one Mr. Tunde Akerele as General Manager. He stated that on the 4th of February, 2010 he was informed by Mr. Tunde Akerele that the defendant was working on acceptable terms for the re-absorption of the claimant and so he should go home and await his recall. He stated further that on the 11th of February, 2010 he was invited to appear before a disciplinary panel. That the committee could not produce the report of the Police finding as the matter was still ongoing thus they adjourned the proceeding to a further date. That at no time did the panel raise any issue with regards to being involved in packaging of non-performing oil and gas facilities. That by a letter dated 4th of March 2010 he was dismissed by the defendant but he received same on the 9th of December, 2010 and acknowledged the letter on the 30th of December, 2010. He averred that his monthly salary is N1,750,000.00 and his leave allowance /bonuses all sums up to be N4,000,000.00 per annum. That the act of the defendant withholding his salaries and bonus, freezing his account and dismissing him wrongfully without no report from the police indicting him posed enormous suffering on his person as a Senior banker and Pastor. During trial, the claimant testified for himself under oath. He tendered documents which were admitted and marked as Exhibits A, A2, B-B16. He testified that Exhibit B13 is the letter that recommended him for promotion. That the defendant can creditably rely on his representation as the Branch Manager of Muri Okunola branch of the defendant’s bank. He testified that it is the customer’s request for a loan facility that will trigger the action to be taken. That the account officer of the customer does the requisite assessment and having been satisfied with the documents presented by the customer, creates a credit file in the bank where all document brought by the customer are kept in a credit approval form. That the credit approval form is then taken to him for vetting and upon being satisfied with the information therein, it’s proceeds for evaluation and recommendation on the basis of the information at his disposal. That after that the credit approval form proceeds to the Regional manager who upon being satisfied with the documents therein, sends it to the zonal head who endorses the document and sends it to the Enterprise work management department. The department is saddled with the responsibility to professionally evaluate the entire transaction based on the document available and the credit analyst then re-evaluate same and make fresh observations and recommendations to executive management, it is taken to the senior management and then the CEO approves same and the credit approval form returns back to branch that is to the credit officer. He admitted that he co-signed the credit approval form before it escalated to the regional manager. He agreed that Rubicon was a customer of the branch. He admitted that by signing the credit approval form he had represented that the information contained in the document were all true. He admitted that the facility which he recommended was in the sum of N700, 000,000.00 and the security is a lien on the petroleum product to be financed by the bank and administered under the tripartite warehousing agreement. He stated that he recommended to the bank Rubicon Company as a creditable company. He denied that the 2 PFIs in which the allocation was granted was diverted to a third party first deep water. He stated that Rubicon benefitted from the transaction as the loan was made available in the account of Rubicon. He denied recommending to the bank that Rubicon has 2 PFIs. He also denied that upon approval of the loan the documents must be in the file. He admitted that he granted the authority to issue cheques for the transaction. He agreed that the diversion of the proceed was fraudulent. He stated that the letter dated 13/07/09 never mentioned his name. He stated that if the originals of the PFIs were with the bank it would be deposited in the legal department. He stated that the defendant on July 20th 2009 queried him on the issue surrounding the 10,000MTS of AGO before reporting same to the Police. He stated that he was dismissed on the 8/12/2010 but the letter was back dated to 4th of March, 2010. That he was suspended without pay contrary to the provision of the handbook. He admitted that he enjoyed a loan benefit as a staff for 20 years from the bank in the sum of N42 million Naira. He stated that there was no reduction in the loan approval for him it was the same transaction and he has not fully repaid the loan. The defendant on the 16th May 2012 filed its statement of defence wherein it denies each and every allegation of fact contained in the Claimants amended statement of facts. Defendant admits the claimant was an employee of the defendant between 14th August 2006 and 4th March 2010 when he was dismissed from the defendants employment for gross misconduct for packaging non performing oil and gas facilities and his alleged involvement in fraudulent sale of 10,000MTS of Automotive Gas oil (AGO) belonging to Rubicon Energy services Limited and conversion of proceeds there from. It continues that the claimant was at the material time and up till 21st August 2009 when he was suspended pending investigation into the alleged involvement in the fraudulent case, the branch manager of the Defendant’s Muri Okunola branch. Defence continued that prior to the elevation of the claimant to the status and position of Manager, he was a deputy manager and had been commended for the good performance of his branch and promoted among other staff of the Defendant. That as a Manager of the Defendant’s Muri Okunola Branch, the claimant along with another staff of the same branch(Charles Iheanacho) packaged, structured and recommended to the Defendant for approval a product finance facility in favour of Rubicon, a customer of the Muri Okunola branch to the Defendant for approval a N700,000,000 product finance facility in favour of Rubicon. That in a Credit Approval Form presented and co-signed by the claimant and Charles Iheanacho , claimant claimed that Rubicon had ‘at least’ 2 PFI’s for allocation of 5,000MTs each of DPK which Rubicon had approached Oceanic Bank to fund, contrary to the Claimant’s representations, the customer, Rubicon, did not have or own the alleged PFI's on the basis of which the claimant recommended the approval of the N700,000,000.00 Product Finance Facility to Rubicon. The PFIs were indeed issued by the ‘PPMC’ to another company, Dee Jones Petroleum & Gas Limited. The defendant states further that it was based on the said recommendations by the claimant that the management of the defendant gave approval for the grant of the N7000,000.00 product Finance Facility to Rubicon. The facility was offered to Rubicon by a letter dated 26th September, 2007 signed by both the claimant and Charles Iheanacho on behalf of the defendant and accepted by Rubicon the same day. The defendant avers that the facts and circumstances of the disbursement, the management of the 7,000,000.00 product Finance facility, the sale of the products thereby financed and diversion of the proceeds thereof, show an inordinate and tricky contrivance by Firstdeep water to use the funds availed to Rubicon by the defendant to obtain payment for the value of 10,000,000.00 metric tons of petroleum products and divert the proceeds from there. The Defendant in the light of all the prevailing circumstances wrote a petition dated 20 July 2009 to the Nigerian Police Force, State Criminal Investigation Department, Panti, to investigate the matter to determine if any crime had been committed and the defendant did not in any way had an input in the way and manner in which the Nigerian Police Force carried out its investigations. Defendant stated that the Claimant’s paragraph 11 of his statement of facts is untrue as to the nature of the investigation being carried out by police officers at SCID because contrary to that, he had already been investigated and had given written answers to the Defendant’s control group in respect of the subject matter and the defendant’s decision to carry out a further investigation was borne out of the unsatisfactory answers given by the claimant to the questionnaire administered by the Defendant’s control group and that eventually necessitated the suspension of the claimant contrary to the allegation in paragraph 14 of the statement of facts. Defendant in specific response to paragraphs 15 and 16 of statement of facts, states that the only way it could have effectively investigated the various facilities packaged by the claimant and the propriety of his conduct in that respect was to suspend the claimant pending the conclusion of the investigation, that the defendant is entitled to suspend the claimant without pay as the suspension occasioned a temporary stoppage or cessation of the claimants employee status and the rights and privileges attaching thereto including the term of his engagement and that the claimant did not work for the defendant during this period and therefore not entitled to pay for the period he did not work. Defence also pleaded that the claimant has and operates only one account with the defendant which is the salary account. The defendant/ counterclaimant is claiming that the claimant/defendant to the counterclaim was as at 21st August 2009, indebted to the defendant on account of a N42,455,065.00 mortgage loan granted to the claimant by the defendant on 26th May 2008, repayment of which was scheduled to be from the counterclaim defendants salary account. That the claimant repayment obligations in respect of the Mortgage loan continued to run in the course of the claimant's suspension and that the counterclaimant had no contractual or legal obligation to suspend the counterclaim defendant’s repayment obligation while the counterclaim defendant’s suspension lasted and that the counterclaim defendant’s enjoyment of the benefit of the mortgage loan did not abate during his suspension. The counterclaimant further avers that the claimant has failed/ neglected and refused to fulfil all his debt obligations to the counterclaimant since his dismissal. The counterclaimant states expressly that as at 30th April 2012, the indebtedness of the claimant/defendant to the counterclaim stood at N63,553,056.88 only. The counterclaimant hereby claims against the claimant/defendant to the counterclaim as follows: a. The sum of N63,553,056.88 only being the outstanding sum due, owing and payable by the Counterclaim Defendant to the Counterclaimant on account of a mortgage Loan granted to the counterclaim Defendant to the counterclaimant on 26 May 2008 b. Interest on the said sum of N63,553,056.88 only at the rate of 21% per annum from 21August 2009,till judgment is given in this case and thereafter at the rate of 10% per annum on the total outstanding sum till the entire judgement sum is fully liquidated by the counterclaim defendant. The defendant during trial testified through DW1 and DW2 Mr. Frank Akinbomi Adetokunbo and Thomas Ighalo. They tendered documents which were admitted and marked Exhibits FAA1-FAA18 and TO –TO1. DW1 admitted that the claimant was commended by virtue of his sterling performance. He admitted that a customer who requires a loan transaction makes request to his branch who collates the documents for approval of the management. He stated that the Branch Manager is the first contact with respect to the loan facility so he would be expected to scrutinize the documents carefully and the Branch manager has no authority to approve the loan as it has to pass through the loan chain procedure of the bank before same is approved. That each chain has a right to decline loan approval as the essence is to ensure that the representation and recommendations are within the loan policy. He stated that it is the legal department that keeps the custody of the security document. He stated that Exhibit CW5 was signed and dated by the claimant. He also stated that on the 20th of July, 2009 a petition was written by the defendant bank to the Nigerian Police Force. That as at the date of the disciplinary committee the claimant was not convicted and he was not in possession of the report. He stated that he was not aware of the grounds upon which the claimant was dismissed. He admitted that from his investigation, it was first deep water that diverted the proceeds of Rubicon. He stated that the 2 PFIs were mentioned in the credit approval form but it did not say that Rubicon would source it from another company as it will generate a risk factor and the bank would have considered in granting the loan. He stated that it is the duty of the Account Officer to package a loan facility and the Branch Manager is to also thoroughly investigate the documents brought by the client to his branch. DW2 on the other hand testified that the claimant reported back to work when he sent a text message to him. He admitted that it is the duty of the employer to ensure that the employee receives his dismissal letter. He stated that he cannot remember the exact date the claimant was suspended. He agreed that the claimant was suspended on 21/08/2009 for about 16 months without being paid his salary. That the handbook did not state that the claimant would not be paid his salary while on suspension. He stated that post no debit means that no debit shall be posted into the account. He admitted that in their dismissal letter they gave reasons. In its reply to the defence to the Counterclaim, the defendant stated that the repayment obligation in respect of the Mortgage loan facility granted to the claimant has not been fulfilled. It stressed that the amount due to be repaid by the claimant from the said mortgage loan stood at N63,553,056.88 as at 30 April 2012.Counterclaimant further responded to the averment contained in paragraph 4 of the claimant's defence and pointed out that the Statement of account attached by the counterclaimant indeed belongs to the claimant for the period stated therein and that the claimant having been a staff of the Bank for 3years and 7 months should be aware of the standard practice in the Banking industry particularly the counterclaimant bank, that upon the disengagement of a staff from employment, all existing staff account referred to as the ‘separation Account’ for purposes of streamlining the management of his account upon disengagement from the services of the bank. Defendant further stated that the counterclaimant by operation of law is entitled to exercise right of lien on the claimant accounts in his possession, in view of his indebtedness to it which is what the PND status seeks to assert. The counterclaimant in specific response to paragraph 6 of the defence to counterclaim avers that the court is vested with the jurisdiction to hear and determine the counterclaim. The crux of which relates to a N42,455,065.00 mortgage loan facility granted to the claimant in the course of his service to the bank as staff loan. It went further to reply specifically to paragraph 3 of the defence to counterclaim and states that the claimant's repayment obligation in respect of the Mortgage loan facility granted to him has not been fulfilled and that the mortgage facility availed the claimant was contingent upon his employment and continued service to the counterclaimant and the repayment of same was premised on deductions from his monthly salary with a proviso that the facility shall fall due upon separation or in the alternative, interest rate at the prevailing market rates shall apply to the outstanding. At the close of trial, parties filed their respective final written addresses, whereby the defendant filed on the 5th March, 2015 first, as the practice is framing 3 issues for the Court's consideration; while the claimant filed his final written address on the 6th August, 2015 and posed 6 questions for the consideration of the Court. The defendant again filed a reply on points of law. Reference would be made to relevant portions of the three addresses as requires in the course of this judgment. Having read all the processes before me, as well as the testimonies of the three witnesses and documents they tendered and admitted on record. I have heard counsel adumbrations on their written arguments and examined the cases cited in support of their respective arguments, it is in my considered view that the main issues to consider for the just determination of this suit are whether or not the claimant has proven his case as to entitle him to reliefs sought and whether the defendant has equally substantiated and proven its counter claim to entitle it to same. It is the claimant's main grouse that his dismissal and suspension by the defendant was wrongful and unlawful without investigation into the alleged fraudulent sale of 10,000 MTS AGO. Claimant's contends that the defendant ought to have waited for the report of Police investigation before taking any action against him. To the defendant on the other hand, the claimant has failed to substantiate his claims, it hinges its assertion on the fact that the onus of proving the existence of facts, cited in support of the long settled position of law that he who asserts must prove, cited Sections 131(1) and 133(1) of the Evidence Act and commended the case of SCC NIG LTD V. ELEMADU [2005] 7 NWLR (PT. 923) 28 @ 63. Learned defence counsel argued that the claimant failed to tender his contract of employment and that the only option left for this Court is to apply the common law position in making its decision. Cited in support is the case of NIGERIAN GAS CO. LTD V. MR. G.O DUDUSOLA [2005] 18 NWLR (PT. 957) 292; MORONHUNFOLA V. KWARA TECH [1990] 4 NWLR(PT. 145) 506 @ 525-526. Counsel continued by giving a brief about this case and the achievement of the claimant leading to his earned promotion and reliance by the defendant on his judgment/representation. Counsel submits that the claimant's dismissal was based on his gross misconduct and negligent in the handling of the Rubicon transaction, by the failure of the claimant and Iheanacho to collect the PFIs and forwarding same to the defendant's legal department of the defendant. It is the learned claimant's counsel consistent divergent stand that it is the duty of the Police to investigate crime and not that of the defendant. He commended the case of FAWEHINMI V. IGP [2002] 8 MJSC, 1 @5. It is counsel's submission that an employer must prove allegation of crime against employee before his dismissal. cited in support of this assertion is the case of ANAKISIM V. UBN NIG LTD [1994] WLR (PT.322) 577 and concluded that there is no evidence before the Court that the Police submitted any outcome of their investigation before dismissing the claimant. Now, it is necessary to resolve the issue of suspension of claimant, the question is whether or not the suspension of the claimant and his eventual dismissal was wrongful. The law is long settled as evinced in plethora of case law authorities that where an employee is complaining of wrongful suspension/dismissal from service, it is the terms and conditions governing his employment that has to be construed to determine the rights and obligations of the employee and the employer, See the case of EZENWA V. K.S.H.S.M.B [2011] 9 NWLR (PT. 1251) 89; The apex Court reinforced this position of law in its recent decision in BUKAR MODU AJI V. CHAD BASIN DEV. AUTHORITY & ANOR [2015] LPELR, 24562,SC. It is obvious on record that the claimant tendered his employees Handbook, i.e B11 in prove of his claims which is not in contention as the defendant also tendered same in its defence. It is trite and a well settled principle of law that the onerous duty of the court is to simply interpret and enforce the contract of agreement lawfully entered into by the parties and nothing more. See CADBURY NIG. PLC V. ONI [2014] 3 ACELR, P.118 @ 126. Once there is compliance with the terms of the contract of employment, the termination/dismissal can never be said to be wrongful. The Court will therefore use this agreement as the bedrock upon which this case shall be determined, except where there is no provision/adequate provision on any of the issues raised by either party, then the Court will consider the common law/statutory position. It is apposite at this point to state that suspension conveys a temporary or transient disciplinary procedure which keeps away the suspended staff from his regular job or duties either for a fixed period or indefinitely as it is in this case. This period gives the employer a time to make up his mind as to what should be done to the affected staff. In most cases this leads to an eventual determination of the contract of employment. Also in IMONIKHE V UNITY BANK PLC ; supra@ p. 649, LONGE V. FIRST BANK OF NIG PLC [2006] 3 NWLR (PT.967) 228, it was held that an employer has the right to discipline any erring employee in the interest of the organization or institution. The law is also settled that where there is a contract regulating the affairs of the parties as it is in this case, recourse is to be had to the agreement and the Court is not permitted to look elsewhere in making a decision as it relates to the parties. By exhibit B11, clause 7.2 titled Disciplinary Measures, it provides that an employee of the defendant may be disciplined by dismissal, Termination, Suspension or Warning. That is all that the clause states, it did not state whether or not an employee placed on suspension would be entitled to pay, half pay or no pay at all. It is the law of common place that an employer has the right to suspend an employee when necessary as stated supra, with or without pay or at half pay, where such power to suspend has been expressly provided for in the contract of employment. See BINOS DAUDA YAROE V. THE NIGERIA STOCK EXCHANGE [2014] 46 NLLR (PT. 147) 45. Howbeit, where there is no provision as to whether the suspension is to be without pay or with half pay, the Court has strictly construed it. In the English case of HANLEY V. PEASE & PARTNESR LTD [1915] 1 KB, 698 and MARSHALL V. MIDLAND ELECTRIC [1945] 1 ALL ER,653, the Court held that employers cannot suspend without pay where there is no express provision to do so. The rationale is that in suspending an employee without pay , the employer has taken it upon itself( outside of the Court) to assess its own damages for the employees misconduct at the sum which would be represented by the wages of the days the employee remains suspended. See again BINOS DAUDA YAROE V. NIG STOCK EXCHANGE, supra, which followed the above decisions. Thus it is obvious from these decisions that the defendant's suspension of the claimant without pay is wrongful. DW2 admitted on oath that throughout the 16 months claimant was placed on indefinite suspension he was not paid any salary. Facts admitted the law is, need no further prove. It is on record that the claimant was placed on suspension on the 21st August, 2009 and sometimes in January, 2010 he was recalled for few days and was asked again to go and await further directive from the defendant, he was not recalled back nor was he paid any salary until he was dismissed by a letter dated 4th March, 2010 but according to claimant he received it on 9th December, 2010. A letter of dismissal or resignation becomes effective on the date same is received. See the case of WAEC V. OSHIONEBO [2006] 12 NWLR (pt. 994) P.258. It is in consequence that I find that the claimant's suspension by the defendant without pay is wrongful, accordingly, I hold that claimant is entitled to his monthly emolument while on suspension from August 21, 2009 to 9th December, 2010 effective date of his dismissal, ( i.e. 16 months). I so find and hold. Next question is, was the claimant's dismissal wrongful. The arguments of both learned counsel is as summarised above as regards the dismissal of the claimant. My understanding of the claimant's grouse against the defendant is the fact that he was not prosecuted by any Court for any fraudulent act as alleged by the defendant as the Police on whose shoulder rests the power to investigate a criminal act did not conclude its investigation. His problem again with the defendant is that the defendant has failed to prove any allegation of crime against him before his dismissal. It is the defence submission that exhibit B11, evinces that the defendant may discipline its staff by dismissal based on a misconduct and that the defendant need not report to the Police before it can so do. Cited in support is the case of EZE V, SPRINGBANK PLC [2011] 18 NWLR (PT. 1278) 113 @ 134-135, Counsel submits that the defendant need not wait for the Police report before it can dismiss its staff. Now, the Court in B.A. IMONIKHE V. UNITY BANK PLC [2014]4 ACER, P.39 @ P.58, Rhodes -Vivour, JSC held thus- '' Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed. The reasons for dismissing the appellant are easily categorised into two..'' It is further held by his Lordship Onoghen JSC @ P.50 in IMONIKHE's case supra, thus- ''... I think a conclusion on the matter can be easily reached by examining the queries and replies thereto to see whether the queries whether the replies satisfactorily explain the conduct of the appellant alleged to amount to misconduct. Where the committee comes to the conclusion that it does, then the alleged misconduct has not been proved but where the answer is in the negative, then it has been proved.'' It is on record that the claimant was issued a query and he answered to same vide exhibit CW5 dated 20/7/09. Claimant was equally invited to a disciplinary committee of the defendant by exhibit B7, a letter dated 10/2/10, which he admitted in his pleadings that he attended. This implies that the claimant was afforded ample opportunity by the defendant to explain his involvement or otherwise of the allegations leveled against him. This by the decision of the apex Court highlighted above satisfies the rule of natural justice as entrenched in Section 36 of the 1999 Constitution as amended. It is also important to note that the apex Court in IMONIKHE'S case has laid to rest the issue of prosecution of a crime/similitude of criminal act by the Police before an employer can discipline its staff. As the extant position of the law is that an employer can discipline its staff after issuance of a query and answer to it, if unsatisfactory, may dismiss its employee without first proving the allegation of fraud in the criminal Court. See also AFRICAN NEWSPAPERS LTD & ANOR V. MR. JACOB AKANO [2014] 4 ACELR, 60 @ 71. It is in consequence that I find and hold that the claimant was given fair hearing. Accordingly, I resolve claimant's reliefs (a) to (e) in favour of the defendant. I so hold. Now, having held that the claimant was given fair hearing before his employment was determined by the defendant and that there it is nolonger fashionable or the law for the Police investigation or prosecution before an employer can dismiss its employee from its employment; the next question to answer is, is the claimant's dismissal wrongful? It is the law as alluded to by both parties in their diverse written submissions, that he who assets must prove, See Sections 131(1) and 133(1) of the Evidence Act 2011 which states that ''whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist''. Thus, onus of proving that the claimant's employment is wrongful is on the claimant. In prove of this the claimant tendered the Handbook exhibit B11, in it clause 7.2 it provides viz- ''Depending on the offence and magnitude, an employee may be disciplined in the following ways which are not exhaustive: a. Dismissal b. Termination, c. Suspension. d. Warning''. It is clear from the above clause of exhibit B11, that the contract of employment of the claimant failed to state what offence/misconduct could earn an employee of the defendant dismissal. It is in adequate as it is vague to the extent that the defendant may chose to dismiss, terminate or suspend or warn its employee at will depending on the yardstick it chooses to use. This in my humble view is ambiguous and is solely left at the discretion of the defendant to pick and choose which magnitude of offences an employee need to commit for him to be dismissed or warned or suspended. Howbeit, the law is trite that where there is an absence of any specific definition of misconduct anywhere in the law of master/servant, a misconduct becomes what an employer considers to be a misconduct. See ANAKISIM V. UBN LTD, supra. I will reproduce the content of the claimant's dismissal letter to reveal the reason for which the defendant dismissed the claimant, i.e. Exhibit B8, is hereunder captured thus for ease of reference. OCEANIC BANK INTERNATIONAL PLC Experience peace Head office Herbert Macauley Way, Wuse Zone 6, P.M.B 5048 Abuja FCT Telephone : 095237997,5236209, 5236388,5237311 Fax: 5236085 Corporate Office Waterfront Plaza 270, Ozumba Mbadiwe Avenu PO BOX 75073, Victoria Island, Lagos Telephone: 01-2705010-19, 77330419, Fax 2705066. www.oceanicbank.com March 4, 2010 Mr. Temitope Olowu 10/12, Adebayo Crescent, Okota Lagos. Dismissal This is to inform you of your dismissal from the bank with immediate effect for your involvement in the fraudulent sales of 10,000 MTS of AGO and packaging of non performing oil and gas facilities. You are required to submit all bank's property in your possession, including your staff identity card and unused cheque leaves through your line manager to the Head Human resources immediately. Your final account is being processed and will be communicated to you soon. We thank you for your services rendered to the bank and wish you success in your future endeavours. Yours faithfully, For: OCEANIC BANK INTERNATIONAL PLC WOLE OGUNREMI AG. HEAD, HUMAN RESOURCES Cc: Head, IT Head, Retail Banking Group Zonal Head, Lekki – VI Zone Head, Control Group Head, Corp Branch It is now obvious from the content and tenor of the above letter that the claimant was dismissed by the defendant for his involvement in the sale of 10,000 MTS AGO and for packaging non performing oil and gas facility. It is the claimant's case as per his evidence on record that he is not the approving officer that approves loan and that he only released the draft and credited the account of Firstdeep water based on the approval of the defendant's management. Also that as a Branch Manager, he does not have any authority to approve any credit facility but to merely present loan request made by customers for further consideration by other higher officers. He admitted that he escalated all the loan request documents having confirmed same before escalating same to his superiors who will approve the facility before he releases funds to the customer. The defendant on the other hand tendered exhibit C, which is the Report of the investigation on allegation of Fraudulent sale of 10,000MTS of AGO. It is evident in the report that the claimant who was the branch manager of the defendant was alleged to have packaged a product finance facility of N700,000,000.00 for Rubicon energy services Ltd which turned out to be delinquent due to his negligence in the handling of the transaction dynamics, therefore exposing the bank unduly to loss. That the claimant and his account officer one Charles Iheanacho parted with the title document (PFIs) of the product financed by the bank instead of submitting same to the legal department of the Bank. It is also the finding of the committee that the duo were negligent in the handling of the facility which the bank financed and enabled First deep water Discovery Ltd to fraudulently sell and divert the proceeds. The committee recommended that the duo should be made to face Disciplinary (DC) committee of the defendant and they did. The DC amongst other things recommended the dismissal of both the claimant and Charles Iheanacho. It is of course as rightly argued by the claimant's counsel, for the defendant to prove the reasons canvassed in the letter of dismissal before this Court, which in my calm view it has succeeded to do. The defendant has shown that the claimant as the Branch Manager who had first contact with the customer has the onerous duty to ensure that packaging of a loan facility is properly done and documents used as collateral are properly documented and kept safely at the bank. Counsel to the defendant further submits that the claimant's negligence made it possible for the third parties to come in contact with the original copies of the PFIs which made the diversion of the Petroleum products possible, without the knowledge of the defendant, thus exposing the defendant to incur huge losses. Counsel submits further that it was the claimant that released the draft for the payment of the Petroleum products. It is the law as evinced in several case law authorities that misconduct is viewed seriously and punished harshly, any act outside the scope of any employee's duty in his employer's establishment which is prejudicial to the later's interest is termed as a misconduct, considering the nature of the business and service in which his master is involved. See ANAJA V. UBA PLC [2011] 15 NWLR (PT. 1270) 377 CA. The apex Court in NWOBOSI V. ACB LTD [1995] 6 NWLR (PT 404) 658. Held that ''disobedience of a lawful and reasonable order of an employer by an employee is of definite act of misconduct which, at common law, attracts the penalty of summary dismissal since such wilful disobedience of a lawful order is a reflection of a total disregard of an essential condition of a contract of service, namely, that the servant must obey a proper, reasonable and lawful order of the master in default of which their contractual relationship cannot be expected to continue." Per IGUH, J.S.C. (P.49, paras. D-F). Misconduct is equally held in CADBURY NIG. PLC V. ONI, supra to be a dereliction of duty. It is evident on record by the evidence of parties and documents tendered by both parties that the defendant has been able to substantiate its reason for claimant's dismissal in that, it is in my humble view that on the preponderance of evidence the defendant has been able to convince the Court that the claimant and Charles Iheanachor had some skeletons in their cupboard with regards to the whole Rubicon transaction. That they made Rubicon and Firstdeep water to prepare an unsigned Joint venture agreement before the facility was approved. Defence has also proven that the claimant did not exercise reasonable care and diligence in the handling of the Rubicon transaction leading to its loss of huge fund. Claimant in his testimony stated that he prepares all the documents for same to be escalated to his superiors before approval. He is the first point of call who had an interface with the customer and the defendant has evinced on record that it relied heavily on his diligence in the handling of such a huge transaction. The claimant could not convince the Court on the preponderance of evidence that he and his account officer exercise due diligence expected of them on the whole transaction and deposited the 2 PFI's which constitutes the guarantee to the legal department of the defendant. It is in the light of all that have been stated supra that I find that the claimant has failed to discharge the onus of proving that his dismissal is wrongful. I so find and hold. As regards the claimant relief (f),(g)(h)(i)(j), it is noteworthy that the Court has held supra that the claimant is entitled to his emoluments for the period of suspension. I restate that the claimant is to be paid all his emolument from the date of his suspension until his dismissal. Haven held in this judgment that the claimant's dismissal is not wrongful, it is therefore obvious that this claim is thus otiose and thus Relief (f) fails. Reliefs (i) and (j) are seeking for payment of damages and cost of action. The law is now settled that damages are the consequence or a loss flowing naturally from a party's act, and it needs no proof or pleading. Once the action succeeds, it is based on the court's discretion which the court exercises judicially and judiciously. The law is also long settled that Cost follows event. It is obvious from all the above that the claimant's case fails except as regards payment of emolument during the period of suspension, it is in consequent to that, that I find and hold that claimant's claims (i) and (j) fail. I so hold. Issue two, i.e. has the defendant proven its counter claim to entitle it to its reliefs. The counter claimant is seeking to recover the sum of N63,553,056.88 being outstanding mortgage loan obtained by the claimant/defendant to the counterclaim on 26th May, 2008 and interest on same whilst in the defendant's employ. The defendant in substantiating this claim tendered the letter of offer of the loan document and the claimant's statement of account, i.e. exhibits CW6 and TO1 respectively. Claimant's defence to this is that the defendant freezed his account thus he was denied access to conduct any transaction on the account. Learned claimant's counsel posits that the claim of the defendant is outside of the jurisdiction of this Court being a mortgage/commercial loan granted the claimant in the course of his employment with the defendant. To counsel, it is not within the contemplation of Section 254C (1) of the 1999 Constitution as amended for this court to adjudicate on a loan facility granted an employee. He cited Section 251 (d) of the Constitution and submits that it is the State High Court that has jurisdiction to entertain this issue. It is further argued that from the date of claimant's dismissal the loan became a commercial loan and no longer a staff mortgage loan. In response to this the defendant in its reply address submitted that the loan granted the claimant was as a result of his employment relationship with the defendant and that is within the contemplation of Section 254C(1) of the Constitution. Counsel went on to posit that this Court by Section 254C has exclusive jurisdiction to adjudicate on matters connected with labour, employment and industrial relations. Cited in support of this is the case of GYANG YAKUBU PAM & ORS V. AHMADU BELLO UNIV & ORS [2013] LPELR-21406 CA and urged the Court to hold that the loan granted the claimant is a staff loan and not a customer loan. It is the law that he who assert must prove as stated earlier in this judgment. It is the defendant contention that it granted the claimant staff mortgage loan and he has an outstanding balance of N63,553,056.88. It is correct as submitted by the learned defence counsel that by the provision of Section 254C(1) this Court has exclusive adjudicatory powers over cases of labour, employment and industrial relations and all matters connected to them. The import of which is that the loan granted the claimant was so granted as a result of his engagement in the employment of the defendant, as it is plain on exhibit CW6, that the loan was granted by the management of the defendant to ''Temitope Olowu ''The Staff'' facility is mortgage loan and deduction is from his monthly Housing Allowance and interest is 5% per annum. The claimant failed to convince the Court that the interest payable on that loan and the deductions from his Housing Allowance for the repayment of the loan is what the bank ordinarily does to its customers? He equally failed to show that this loan is not a staff mortgage loan. It is clear that the mortgage loan granted the claimant was as a result of his engagement at the defendant's bank and thereby confers jurisdiction to this Court, same being connected to his employment. It is also obvious on record that the claimant never pleaded this issue of jurisdiction in his defence to the counterclaim, the position of the law is clear on this, which is that non pleaded facts go to no issue, the import of which is that counsel submission on this issue as regards jurisdiction is an afterthought and that cannot take the place of pleading, it is consequently, discountenanced. I so hold. Now, is the defendant entitled to its counterclaim? The defendant by its evidence on record, the documents tendered and witness deposition of DW2 all go to substantiate the fact that the claimant obtained a mortgage loan of N42,455,065.00 on 26th May, 2008. The claimant is not contesting this however, his grouse is that his account was distorted and closed hence he could not pay any money into same to offset the loan. Admitted facts the law is basic, need no further proof. It is not in contention that the loan has not been fully repaid by the claimant. It is on this premise that I find that the claimant has an outstanding staff mortgage loan to pay back to the defendant. It is in consequence that I hold that the claimant is to pay the outstanding balance of the loan, interest calculated at 5% as stated in exhibit CW6 uptill today being the date of this judgment. This is to be calculated by both parties hereafter. Is the defendant entitled to pre judgment interest on its claim? the answer is in the negative, I say so in view of Order 21 Rule 4 of the National Industrial Court Rules 2007, by this rule, the National Industrial Court of Nigeria at the time of delivering a judgment or making an order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment. This means that, a party cannot ask for pre-judgment interest. The Court can only award interest on judgment as from the date of judgment. It is in this vein that I find that the defendant claim for interest on the sum of N63,553,056.88 fail. It is in sum and for the avoidance of that I make the following declarations and Orders- 1. That the dismissal of the claimant by the defendant is not wrongful. 2. That the claimant is entitled to be paid his emolument for the period of his suspension which is put at 16 months, within 30 days of this judgment. 3. That the claimant's claims fail except relief 7(suspension). 4. That the defendant's counterclaim succeeds in part and that is in relation to the outstanding staff mortgage loan balance with the interest of 5% up till today, this is to be calculated by both parties. 5. That the interest on the loan will only revert back to the current rate after today being the 3rd day of March, 2016. 6. Parties are to bear their respective cost. Judgment is accordingly entered. HON. JUSTICE O.O OYEWUMI JUDGE