Download PDF
<p class="MsoNormal"><b><span style="font-size:14.0pt;line-height:115%">REPRESENTATION:<o:p></o:p></span></b></p> <p class="MsoNormal"><b><span style="font-size:14.0pt;line-height:115%">O. ADARAMAJA, ESQ; APPEAR FOR THE CLAIMANT<o:p></o:p></span></b></p> <p class="MsoNormal"><b><span style="font-size:14.0pt;line-height:115%">J. E. OKOBIEMEN, ESQ: FOR THE DEFENDANT<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:22.0pt;line-height:115%">JUDGMENT<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The Claimant initiated this action against the Defendant vide a General Form of Complaint dated 25<sup>th</sup> March, 2013. By the accompanying statement of Facts, the Claimant is seeking the following reliefs against the Defendant:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size:14.0pt; line-height:115%;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">A DECLARATION that the summary dismissal of the Claimant by the Defendant as contained in the Defendant’s letter of Dismissal with Reference Number WWB/146/04516 dated 22<sup>nd</sup> day of August, 2008 is wrongful, unjustified, null and void and of no effect whatsoever.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size:14.0pt; line-height:115%;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">2.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">AN ORDER setting aside the purported dismissal of the Claimant from the services of the Defendant as conveyed by the Defendant’s letter with Reference Number WWB/146/04516 dated 22<sup>nd</sup> day of August, 2008.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size:14.0pt; line-height:115%;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">3.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">AN ORDER commanding the Defendant to pay the salaries, allowances, bonuses and entitlement of the Claimant from 22<sup>nd</sup> August, 2008 up to the date of judgment.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size:14.0pt; line-height:115%;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">4.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">A SUM OF N20,000,000.00 (Twenty Million Naira) being general damages for financial hardships, embarrassment, loss of employment and incomes derivable therefrom caused by the Defendant’s wrongful dismissal of the Claimant from its employment and its failure, refusal and neglect to acknowledge the Claimant’s reference confirmation with FINBANK PLC (now First City Monument Bank Plc).<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Aside from the accompanying statement of facts, the Complaint is further accompanied with the Claimant’s List of Witnesses to be called at the trial, List of Documents to be relied upon and sundry other documents. Also filed along with the originating process was the Claimant’s witness statement on oath.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On its part, the Defendant with leave of the Court responded by filing its Memorandum of Appearance dated 20<sup>th</sup> May, 2013 along with its statement of defence/counter-claim, List of Witnesses, Defendant/Counterclaimant’s Witness statement on oath, List of Documents to be relied upon at the trial and other documents. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The Claimant also filed a Reply to the Defendant’s Statement of Defence dated 5<sup>th</sup> July, 2013 as well as a Claimant’s further witness statement on oath in reply to the Defendant’s statement of defence and counterclaim. The Claimant also filed additional list of documents to be relied upon at the trial. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">By way of further reaction, the Defendant filed a Rejoinder to the Claimant’s Reply and Reply to Defence to Counterclaim and a further Defendant’s Witness Statement on Oath. Both processes dated 17<sup>th</sup> July, 2013 were filed on the same day.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Hearing in this case begun on 13<sup>th</sup> day of November, 2013. The Claimant testified for himself as CLW and was sworn on the Holy Bible. CLW was led in evidence-in-chief by his counsel, Olumide Adaramaja, Esq. He described himself as an Administrative Officer with Sprentres Ventures, Apapa, Lagos State. CLW confirmed to the Court that he deposed to a witness statement on oath on 27<sup>th</sup> March, 2013 and further witness statement on oath on 5<sup>th</sup> July, 2013. Upon identifying the two sets of witness statements on oath, they were tendered and admitted in evidence. The Claimant’s witness statement on oath dated 27<sup>th</sup> March, 2013 was marked as Exhibit CLWA1 – A6 while the one deposed to on 5<sup>th</sup> July, 2015 was marked Exhibit CLWB1 – B3. Learned counsel for the Claimant thereafter sought leave of the Court to tender the bundle of documents pleaded by the claimant in his statement of claim. There was no objection to the admissibility of the pleaded documents, and they were accordingly admitted in evidence as exhibits. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">At the end of the examination-in-chief, CLW urged the Court to grant all his prayers before the Court. However, on the 20<sup>th</sup> day of April, 2014, an oral application by learned counsel for the Claimant for the recall of CLW for the purpose of tendering a document was granted by the Court. Consequently, CLW was recalled and he tendered a document captioned “CENTRAL BANK OF NIGERIA / SECURITIES AND EXCHANGE COMMISSION GUIDELINES AND RULES ON MARGING LENDING FOR BANKS, BROKERAGE FIRMS, ASSET MANAGERS AND OTHER FINANCIAL INSTITUTIONS”. It was admitted in evidence and marked Exhibit CLWU – U27. The witness was then cross-examined by learned counsel for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Under cross-examination, CLW confirmed that he was at the office of the Defendant on 28<sup>th</sup> July, 2008 and was given a deployment letter to Bayelsa State. He stated that he applied for sick leave two days after he was served the deployment letter to Yenagoa, Bayelsa State. Still under cross-examination, CLW informed the Court that he filled out a Leave Application Form on the Defendant’s letter headed paper on 30/07/08. In response to a question by learned counsel for the Defendant, CLW stated that there was no way he could have known the exact time he would fall ill and when he would be discharged from sick leave. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">CLW stated that he applied for sick leave from 1<sup>st</sup> - 14<sup>th</sup> August, 2008. He said he never reported at Bayelsa State. CLW also informed the Court that he did not say that he fell ill because he has not gone on leave for 3 years. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">CLW admitted that for the 3 years he did not go on leave, he requested that his annual leave be converted into cash payments in lieu of leave. CLW said that the Defendant did not issue him any query. He testified that he received the letter of dismissal and the letter to appear before the Disciplinary Committee of the Defendant in the same envelope on 22<sup>nd</sup> August, 2008. He confirmed receiving the suspension letter sent to him on the 14<sup>th</sup> of August, 2008. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">According to CLW, the letter of dismissal was dated 22/08/08. Under cross-examination, CLW admitted that he was granted staff loans while he was in the employment of the Defendant but that he had paid back a whole lot of the loans. CLW admitted that he was yet to repay all the loans granted to him by the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">At the resumed hearing on 3<sup>rd</sup> July, 2014, the defence called its sole witness, Esohe Emela. She was sworn on the Holy Bible and testified as DW1. She was led in evidence by learned counsel for the Defendant, Mr. J. E. Okobiemen. She described herself as the Employee Relations Officer of the Defendant Bank. DW1 confirmed that she deposed to witness statements on oath and identified the two witness statements on oath. They were thereafter tendered in evidence. Thus, the witness statements on oath of DW1 deposed to on 24<sup>th</sup> May, 2013 and 17<sup>th</sup> July, 2013 were admitted in evidence and marked Exhibit DW1A – DW1E and Exhibit DW1G – DW1I respectively without any objection to their admissibility. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">By the same token, the bundle of documents pleaded by the Defendant were tendered and admitted in evidence as exhibits without any objection by the Claimant.. DW1 stated that internal memo was supposed to be acknowledged by the recipient except for instances where the recipient refused to acknowledge receipt. DW1 further informed the Court that an internal memo cannot be pasted on house address. The case was thereafter adjourned for cross-examination of DW1 by the Claimant’s counsel. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">At the resumed hearing on 7<sup>th</sup> October, 2015, DW1 was cross-examined after she had been reminded that she was still under oath. DW1 stated that she had given evidence in the case. She affirmed that she is a legal practitioner and has no degree in medicine. Under cross-examination, DW1 stated that as at the time she joined the Defendant as its Employee Relations Officer in 2010, she did not meet the Claimant who had left the Defendant Bank at the material time. She stated that all the depositions in her witness statements on oath were information she gathered from the records. DW1 said that the Defendant did not deny the Claimant of his annual leaves.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Under cross-examination, DW1 stated that Exhibit CWP and CWE are valid. She affirmed that despite Exhibit CLWE, the Claimant was not sick when he was in the employment of the Defendant. DW1 said that the internal memo of the Defendant is for correspondence between it and its staff.. At the end of cross-examination, there was no re-examination, and DW1 was discharged from the witness box.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The parties having filed their final written addresses, the matter came up for adoption of final written addresses on 2<sup>nd</sup> March, 2016. Learned counsel for the Defendant was not in the Court and no reason was given for his absence. Thus, the Court suo motu adopted the Defendant’s final written address filed on 03/12/15 by invoking the provisions of Section 12(2)(a) of the National Industrial Court Act 2006. The right of the Defendant to adumbration was therefore foreclosed. Learned counsel for the Claimant adopted the Claimant’s final written address. The matter was thereafter adjourned for judgment. I will now proceed to consider and summarize the submissions made by counsel in their respective final written addresses.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In its final written address, the Defendant distilled four issues for determination as follows:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.5in;mso-list:l3 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">i.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">Whether the Claimant by preponderance of credible evidence has been able to demonstrate that he is entitled to reliefs i-iii in the Form of Complaint and Statement of Facts?<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:.75in;mso-add-space: auto;text-align:justify;text-indent:-.5in;mso-list:l3 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">ii.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">Whether the Defendant in the circumstances of this case is not justified to dismiss the Claimant from its employment for proven acts of gross-misconduct.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:.75in;mso-add-space: auto;text-align:justify;text-indent:-.5in;mso-list:l3 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">iii.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">Whether the claim for N20m general damages by the Claimant for loss of employment, income, financial hardship, embarrassment is capable of being granted in this undisputed case of master-servant relationship?<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.5in;mso-list:l3 level1 lfo2"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">iv.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">Whether the Defendant/Counterclaimant is not entitled to judgment in the sum claimed in the counterclaim against the Claimant as sum of money for un-repaid staff loan?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">LEGAL ARGUMENT<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">ISSUE NO. 1<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was submitted that the Claimant has failed and or neglected to lead any credible evidence in proof of his assertion that his dismissal was wrongful, unjustified, null and void and of no effect. It was contended for the Defendant that the plaintiff in a declaratory action must succeed on the strength of his case and cannot rely on the weakness of the defence, except where the defendant’s case supports that of the plaintiff. It was further posited that declaratory relief is granted on the discretion of the Court only when the Court is satisfied that the party seeking the relief is entitled thereto after taking into account all the facts of the case. The cases cited are <b>Whyte v. Jack (1996) 2 NWLR (431) 407 at 441 and Ekwunu v. Ifejika (1960) SCNLR 320.</b><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant submitted that the Defendant has denied the Claimant’s assertion that he was not given fair hearing before his dismissal. It was further pointed out that the Claimant’s testimony that he received the memo inviting him to appear before the Defendant’s Disciplinary Committee was received by him enclosed in the same envelope with the dismissal letter on 22/08/08 was intended to give the impression that he was not given a fair hearing. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was argued that the Claimant gave two materially contradictory evidence on whether or not he received the invitation to appear before the Disciplinary Committee on or before 22<sup>nd</sup> August, 2008. Firstly, learned counsel for the Defendant pointed to paragraph 17 of the Claimant’s witness statement on oath sworn on 27<sup>th</sup> March, 2013 where the Claimant stated that the said invitation to appear before the Disciplinary Committee dated 14/08/08 was found enclosed in his dismissal letter dated 22/08/08 slipped through his doormat on 22/08/08. In other words, he received the invitation after the date scheduled for his appearance had passed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Secondly, learned counsel for the Defendant pointed to paragraph 9 of the Claimant’s further witness statement on oath deposed to on 5<sup>th</sup> July, 2013 where he stated that he found the same invitational internal memo dated 14/08/08 enclosed in the dismissal letter slipped through the door to his living apartment on 14/08/08. Learned counsel argued that the two materially contradictory evidence on oath are not reconcilable. The Court was therefore urged to disbelieve and reject both versions of his evidence on oath. Learned counsel for the Defendant invited the Court to note that the dismissal letter the Claimant claimed to have received on 14/08/08 was yet to be written on that date but that it was written on 22/08/08.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was submitted for the Defendant that where the witness of a party gave inconsistent evidence on a material fact, the evidence on the point must be regarded and treated as unreliable and rejected. On this point, learned counsel cited the case of Osadim v. Tawo (2010) 6 NWLR (Pt. 1189) 155 at 180 CA. It was posited that the effect of the contradictory evidence by the Claimant on the material point that he received the invitation after the date fixed for the Disciplinary Committee’s hearing is to destroy the case of the Claimant. See the case of Whyte v. Jack (supra) at 438 and Adebayo v. Ighodalo (1996) 5 NWLR (Pt. 450) 507 S.C.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant submitted that the contradictory evidence by the Claimant on whether or not he received the invitation to appear before the Disciplinary Committee before or after the date fixed for hearing is material. The Court was urged to reject both pieces of evidence given on oath and hold that he received the invitation to attend but deliberately failed to appear before the Disciplinary Committee of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On behalf of the Defendant, it was submitted that where there is a material contradiction in the evidence on a point, the Court is not at liberty to choose which evidence to believe and which one to reject. Cited in support of this principle are the cases of<b> Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297 S.C.,</b> and <b>INEC v. Oshiomole (2009) 4 NWLR (Pt. 1132) 607.</b><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant submitted that the Claimant must be held to have been accorded fair hearing because he was given the opportunity to be heard but that he refused or failed to utilize the opportunity. It was further submitted by learned counsel that the law is that a party who has been given an opportunity to be heard but who refuses to avail himself of such opportunity cannot be heard to claim that he was denied a fair hearing. In this respect, the cases referred to include <b>Odunlami v. Nigerian Navy (2013) 12 NWLR (Pt. 1367) 20 S.C; Umaru v. Tunga (2012) All FWLR (Pt. 607) 726 at 740; Military Governor of Lagos State v. Adeyiga (2012) All FWLR (Pt. 616) 396 at 414.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned Counsel invited the Court to note that the probative value of the evidence given by the Claimant to show that he received the invitation to appear before the Disciplinary Committee after the date fixed for his appearance has been shown to be contradictory, worthless, unsafe and unreliable. Thus, it was submitted for the Defendant that the preponderance of evidence is in his favour because he has shown that the Claimant had notice of the invitation of 14/08/08 while he was still in the employment of the Defendant. Based on the foregoing, learned counsel submitted that the imaginary scale of justice weighs heavily in favour of the Defendant citing the case of <b>Mogaji v. Odofin (1978) 4 S.C. 91 and Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393 </b>as well as the case of<b> Memoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217 S.C.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant similarly argued that the Court has no ground to believe the Claimant’s claim that he could not proceed to report in Yenagoa, Bayelsa State because he was on sick leave as the allegation of being sick and the sick leave and medical reports are not capable of being believed. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was pointed out that the Defendant was deployed to Yenagoa from Lagos by an internal memo dated 28<sup>th</sup> day of July, 2008. That on the 30<sup>th</sup> day of July, 2008 (2 days after his deployment) he applied for sick leave on the letter headed paper of the Defendant. Learned counsel also pointed out that the Claimant again on the 31<sup>st</sup> day of July, 2008 by Exhibit CW “E” applied for sick leave which was received by the Defendant on the same day. In the opinion of learned counsel for the Defendant, the Claimant curiously attached to Exhibit CW “E” the following documents: “Discharged from sick list – 1-15 August 2008” that is, Exhibit CW “G-G1” which was allegedly issued by a certain Dr. Afuwape; Placed on sick list 1-15 August 2008”, that is, Exhibit CW “G-H” also alleged to have been issued by the said Dr. Afuwape. Of importance according to learned counsel is the fact that the documents have no date of issuance. That the sick leave application (Exhibit CW “E”) also had attached to it Exhibit CW “T” (“Drug Prescription Form”) dated 31<sup>st</sup> July, 2008 and purportedly signed by Dr. Oloyede. The Court was invited to note that Dr. Oloyede who allegedly signed the Drug Prescription Form is different from the Doctor that purportedly issued and signed the sick report and discharged report.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">With respect to the Claimant’s application for sick leave and the attached documents, the Defendant pointed out the following concerns:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.5in;mso-list:l0 level1 lfo3"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">i.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">That the documents attached to the application for sick leave Exhibit CW “E” of 31<sup>st</sup> July, 2008 and which was received by the Defendant on the same date were documents, [except for the Drugs prescription form dated 31/07/07] dated 1/08 – 15/8/08. This according to the Defendant means that the “put on sick list” and the “discharged from sick list” were issued a day after they were received in the office of the Defendant which was on 31<sup>st</sup> July, 2008. Thus, the Court was urged to reject these documents or Exhibits.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:.75in;mso-add-space: auto;text-align:justify;text-indent:-.5in;mso-list:l0 level1 lfo3"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">ii.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">That the drugs prescription form [Exhibit CW “T”] was allegedly issued and signed by one Dr. Oloyede who must be presumed to have examined the Claimant before making his prescriptions on first contact. Learned counsel argued that it was curious that the said Dr. Oloyede neither put the Claimant on the “sick list” neither did he discharge the Claimant from sick list upon his examination. But that it was another person, Dr. Afuwape who neither examined nor prescribed drugs for the Claimant that turned out to have issued and signed Exhibits CW “G-G1 and CW “G-H” on the following day and simultaneously discharging the Claimant on the same duration. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:.75in;mso-add-space: auto;text-align:justify;text-indent:-.5in;mso-list:l0 level1 lfo3"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">iii.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">That the applications for sick leave must be taken to be premeditated, orchestrated and incapable of being believed. It was posited that by the nature of events, an employee cannot foretell with precision the time he will fall ill and proceed to make an application to his employer stating in advance a precise period for his sick leave and discharge as has been done in the instant case. The attention of the Court was drawn to Exhibit CW “E” and the application for leave dated 30<sup>th</sup> July, 2008 wherein the Claimant applied in advance for a sick leave to take place from 01/08 – 15/08/08 and attached sick report and discharge ahead of the day the sick report was actually issued.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.5in;mso-list:l0 level1 lfo3"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">iv.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">Reference was made to Exhibit CLW “J1” titled “Re: Tomide Ayodele – M/33years, Hosp No 9483, Medical Report” of 14<sup>th</sup> August 2008 purportedly signed by yet another doctor, Dr. A. A. Elusade. That in this Exhibit, the Claimant was diagnosed and treated for acute malaria which by common knowledge is caused by exposure to mosquitoes and that malaria is not stress related. Learned counsel cannot understand why the same medical report recommended that the Claimant be allowed to proceed on leave not on the basis of the diagnosed and treated ailment (acute malaria) but for an alleged denial of the enjoyment of his annual leave.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:14.0pt;line-height:115%">On the basis of the concerns raised above, it was submitted that the evidence led by the Claimant to show that his ill health was responsible for his inability to comply with his employer’s deployment instructions of 28<sup>th</sup> July, 2008 to Yenagoa, Bayelsa State is not credible, cogent and convincing. It was submitted that the Court only acts on credible, cogent and convincing evidence. See the case of <b>kopek Construction Ltd v. Ekisola (2010) 3 NWLR (Pt. 118) 618. C</b>redible evidence, according to the Defendant, is one that is worthy of belief and for evidence to be worthy of belief or credible, it must not only proceed from a credible source but it must also be natural, reasonable and probable in view of the entire circumstances. On this point, learned counsel referred to the following authorities, <b>Agbi v. Audu Ogbe (2006) 11 NWLR (Pt. 990) 65 at 116;</b> Civil Litigation – A Quick Reference Guide To Substantive Law And Procedure by Hon. Justice Oludotun Adefope – Okojie JCA (2013) P. 241, Paras. 2.3.22. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:14.0pt;line-height:115%">Learned counsel for the Defendant insisted that in the instant case, neither the evidence of the Claimant nor its source is credible. It was further submitted that the attempt by the Claimant to rely on medical excuse to justify his refusal to report at Yenagoa as instructed by his employer is one that must not be allowed as the medical documents lack credibility. See the case of <b>Fatunbi v. Olaloye (2004) 2 NWLR (Pt. 887) 229 at 247.<o:p></o:p></b></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:14.0pt;line-height:115%">It was submitted that Exhibits “P” and “Q” were the two queries issued to the Claimant by the Defendant questioning the authenticity of the medical reports and his failure to report at Yenagoa his new duty post<b> as </b>instructed. Learned counsel also pointed out that the Claimant failed to answer the queries other than through Exhibit CLW “F-F1” dated August 04, 2008. It was further pointed out that the response of the Claimant in Exhibit “F-F1” shows that he received the queries issued to him by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant argued that the Defendant was justified to have dismissed the Claimant because he committed an act of gross misconduct by refusing to report to his new place of posting at Yenagoa coupled with his refusal to appear before the Disciplinary Committee to which he was invited. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On the basis of the above submissions, learned counsel urged the Court to hold that the Claimant has failed to prove by credible evidence that he is entitled to the declaratory reliefs sought. The Court was urged to resolve issue number one in favour of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was further submitted that the Claimant’s claim for an order setting aside the dismissal of the Claimant is not capable of being granted in view of the evidence led by the Claimant which is neither credible nor convincing. It was further submitted that setting aside the dismissal as sought by the claimant would amount to reinstating him. According to learned counsel, in a master and servant employment relationship, the Court cannot set aside the dismissal of an employee. He relied on the proposition that a willing employee cannot be forced on an unwilling employer. That in a master and servant contract of employment such as this case, the remedy for wrongful dismissal is not specific performance but the award of damages in proper cases. On this point, learned counsel referred to the cases of <b>Eze v. Spring Bank Plc (2011) 18 NWLR (Pt. 1278) 113 at 140; Anaja v. UBA (2011) 15 NWLR (Pt. 1270) 377 and Union Bank Ltd v. Ogboh (1991) 1 NWLR (Pt. 167) 369.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel submitted that the Claimant is not entitled to the claim for the setting aside of his dismissal neither is he entitled to damages/compensation for wrongful dismissal, which he has not claimed. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant posited that the Claimant is not entitled to relief (iii) in the statement of facts. This, according to learned counsel is because the Claimant must demonstrate that his dismissal is unlawful for the Court to hold that he is entitled to his salaries, allowances and other entitlements. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">ISSUE NO. 2<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Whether the Defendant in this case is not entitled to summarily dismiss the Claimant from its employment for proven acts of gross misconduct?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant submitted that the letter of employment (Exhibit CLW “C1-3) is the basis of the employment relationship, and that paragraph 6 thereof gives the Defendant the right to summarily dismiss the Claimant for failure to heed transfer instruction. Learned counsel argued that the facts and evidence in this case show that the Claimant committed an act of gross misconduct by refusing to report at Yenagoa, Bayelsa State as directed by the Defendant by its letter of 28<sup>th</sup> July, 2008. Learned counsel submitted that the pieces of evidence led by the Claimant to justify his refusal to heed the Defendant’s deployment instructions have been shown not to be credible or cogent. It was also noted that the Claimant was given an opportunity to be heard but that he failed to utilize same. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the estimation of learned counsel for the Defendant, it is the Claimant who has breached the terms of Exhibit CLW “C1-3” by not reporting in Yenagoa, Bayelsa State as instructed. Learned counsel referred to the Supreme Court case of <b>Eze v. Spring Bank Plc</b> (supra), where gross misconduct is defined as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and his employer. Relying on the cases of <b>Anaja v. UBA</b> (supra) and <b>Union Bank Ltd v. Ogboh</b> (supra), learned counsel submitted that gross misconduct arises where the employee is working against the deep interest of the employer. In this respect, learned counsel submitted that the act of the Claimant in refusing posting is an act of gross misconduct that is of grave and weighty character that has not only<b> </b>undermined the<b> confidence that existed between the parties herein but also works against the deep interest of the Defendant.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the opinion of learned counsel, the Defendant has established that the Claimant was summarily dismissed because he committed an act of gross misconduct. It was also noted that he refused and did not appear before the Defendant’s Disciplinary Committee even though he was invited to do so. Stretching the argument further, it was submitted that an employee who commits an act of willful misconduct that is prejudicial to the interest of the employer deserves to be summarily dismissed and the employer will not be liable to pay salaries, allowances and other entitlements. See the cases of <b>Eze v. Spring Bank Plc (supra); Shuaibu v. N.A.B. Ltd (1998) 5 NWLR (Pt. 551) 582; African Newspapers Ltd v. Akano (2012) All FWLR (Pt. 605) 345 at 358. <o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Defendant opined that since the Defendant has not breached the terms of the contract of employment, it is not liable to pay the salaries, allowances and other entitlements of the Claimant as being claimed in relief (iii) in the statement of facts. The Court was urged to refuse this relief sought by the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">ISSUE NO. 3<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Whether the claim for N20 Million general damages by the Claimant for loss of employment income, financial hardship, embarrassment is capable of being granted in this undisputed case of master/servant relationship?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel submitted that the Court cannot grant a claim for general damages because a claim for general damages can only succeed in torts and not contract cases. It was argued that in contract of employment cases, the successful party is put back in the position he would have been if there had been no breach of contract. In support of his position, learned counsel cited the cases of <b>Union Bank Ltd v. Ogboh </b>(supra) and <b>PZ & Co. Ltd v. Ogedengbe (1972) All NLR 202.</b> The Court was therefore urged to refuse the claim for N20 Million general damages.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">ISSUE NO. 4<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Whether the defendant/counterclaimant is not entitled to judgment in the sum claimed in the counterclaim against the claimant/defendant by counterclaim being the sum of un-repaid staff loans granted to him in the course of his employment with the defendant?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On this issue, it was submitted that Exhibit DW1 ZZ3 show the different loans granted by the Counterclaimant to the Defendant by counterclaim. That the Defendant by counterclaim has not been able to repay all the loans granted to him by the counterclaimant which prompted the Counterclaimant to demand for full repayment of the loans through Exhibits DW1 “V” and DW1 “ZZZ”.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Relying on the decision in <b>Joe Golday Co. Ltd. v. Co-operative Dev Bank Plc (2003) FWLR (Pt. 153) 376, </b>learned counsel submitted that a bank is entitled to consolidate the accounts of its customers and set off a credit balance against any sum outstanding. The case of the Counterclaimant is that after consolidating the accounts of the Defendant by counterclaim into a unified account (as shown in Exhibit DW1 “ZZZ1 to “ZZZ4), the Defendant by counterclaim was owing the sum of N14,805,806.94 as at 1<sup>st</sup> June, 2011. That the Claimant’s account was then transferred to a non-performing loan and accorded a moratorium on interest calculation without prejudice to further calculation in due course. It was therefore pointed out that the Counterclaimant is claiming the sum of N14,805,806.94 as at the 1<sup>st</sup> day of June, 2011 and at the rate of 10% per annum from the date of judgment.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was pointed out that the Defendant by counterclaim has not denied his indebtedness to the Counterclaimant. Learned counsel submitted that contrary to the assertion of the Defendant by counterclaim, Exhibit DW1 “ZZZ1 to “ZZZ4” show that the said Defendant by counterclaim obtained the said sum of N2 Million loan for his benefit. On behalf of the<b> </b>Counterclaimant, it was posited that oral evidence cannot be admitted to alter or contradict documentary evidence on the issue. See Section 128 of the Evidence Act 2011 relied upon by counsel. The Court was urged to hold that he obtained the loan for his benefit irrespective of the purpose of the loan.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Counterclaimant pointed out that the Defendant by counterclaim under cross-examination admitted that he took loans from his former employer and that he knew that he was yet to repay all the loans granted to him. Learned counsel submitted that Counterclaimant has adduced documentary evidence to prove its entitlement to the repayment of the loans even though the Claimant has admitted owing the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was submitted that the Defendant by counterclaim has failed woefully to discharge the burden placed on him under Sections 131 and 133 of the Evidence Act 2011 to show the amount of the loans he has repaid and what amount is outstanding. Thus, the Court was urged to rely on the documentary evidence of the Counterclaimant and hold that the Defendant by counterclaim is indebted to it in the sum of N14,805,806.94 as at 1<sup>st</sup> June, 2011.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">At this juncture, I will proceed to summarize the submissions of the Claimant in his final written address dated 15<sup>th</sup> January, 2016. The Claimant distilled a lone issue for determination as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Whether or not from the evidence before this court, the claimant has proved his wrongful dismissal by the defendant?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">ARGUMENT OF THE LONE ISSUE<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was submitted that the contradiction in the evidence given by the Claimant on whether or not he received the invitation to appear before the Disciplinary Committee before his summary dismissal was the mistake of his counsel which should not be held against the Claimant. Learned counsel submitted that the case of the Claimant as supported by his evidence under cross-examination is that he did not receive any such invitation before he was summarily dismissed. It was argued that available evidence show that the Claimant received the memo of 14<sup>th</sup> August, 2008 suspending him from work on 14<sup>th</sup> August, 2008 on his return from the Hospital on that same day. It was noted that under cross-examination, the Claimant confirmed that he received his letter of suspension on 14<sup>th</sup> August, 2008 while the memo inviting him to appear before the Defendant’s Disciplinary Committee was received along with the dismissal letter on 22<sup>nd</sup> August, 2008. Arguing that the evidence of the Claimant under cross-examination is consistent with his earlier statement on oath and his pleadings, learned counsel urged the Court to treat the deposition in paragraph 9 of the further witness statement on oath of the Claimant as the mistake of his counsel which should not be visited on the Claimant. On this point, learned counsel relied on the case of <b>Edoigiawerie v. Aideyan (2006) 10 NWLR (Pt. 988) 438 at 449-450</b> and <b>Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401 S.C.. <o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On how the Court should treat contradictory evidence of a party which is not material, learned counsel for the Claimant referred the Court to the case of <b>Abogede v. State (1996) 5 NWLR (Pt. 448) 270 at 279, paras. D-F,</b> Per Adio J.S.C., held as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">“It is not every discrepancy between what one witness say at one time and what he say at another that is sufficient to destroy the credibility of the witness altogether. However, where the discrepancy is at least of enough importance to call for mention by the Judge, it should appear in the record that he adverted his mind to it and the reason for believing the witness in spite of the discrepancy should also be stated. That will enable the appellate court to determine whether the trail judge overlooked the discrepancy or where he adverted to it and considered it but found the witness credible nevertheless”.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Claimant pointed out that the Claimant had been on sick leave since the 31<sup>st</sup> day of July, 2008, and was therefore not in the office when the Memo of 14<sup>th</sup> August, 2008 was issued by the Defendant. He further drew the attention of the Court to the testimony of the witness for the Defendant who stated that internal memoranda are not meant to go outside the precinct of the Defendant’s office. According to learned counsel, the reasonable conclusion to be drawn from this is that the Claimant never received the Defendant’s memo of 14<sup>th</sup> August, 2008 inviting him to appear before the Disciplinary Committee.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Claimant argued that the doctors’ reports were not fabricated as alleged. It was submitted that the medical reports speak for themselves. It was further submitted that the failure of the Defendant to visit Orile Agege General Hospital to ascertain the authenticity of the reports is fatal to its case. The Defendant stated that he applied for two weeks sick leave vide the Defendant’s Leave Application [Exhibit CLW “E”] without indicating that the leave would be from 1<sup>st</sup> – 14<sup>th</sup> August, 2008 as insinuated by the defence. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On behalf of the Claimant, it was submitted that he did not commit any act of gross misconduct but that he only found it necessary to apply for sick leave in order to attend to his failing health caused by the pressure of work.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On the counterclaim, the Claimant submitted that the statement of account tendered by the Defendant has been manipulated. He reiterated that the Defendant did not credit his account with the sum of N2 Million as claimed but that the same was disbursed into the account of its appointed stockbroker, Global Asset Management Limited to purchase the Defendant’s shares on behalf of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel for the Claimant submitted that by Rules 9(A) – (D) of the Central Bank of Nigeria/Security Exchange Commission Guidelines and Rules for Margin Lending for Banks, Brokerage Firms, Asset Managers and other Financial Institutions [Exhibit CLW “U1”, the Defendant and Global Assets Management Limited are obliged to furnish him with written statements on the status of shares purchased on his behalf. Learned Counsel also referred to Clause 9(e) of Exhibit DW1 “ZZ3” [Letter of Offer dated 13<sup>th</sup> November, 2009], which states that the shares purchased will be disposed off to liquidate the facility (loan) in the event that the share price fluctuates drastically below the purchase price. Learned counsel further submitted that the Defendant did not place any evidence before the Court to show the number of the purchased shares that have been sold, if any and the amount realized from such sales. It was contended that Exhibit DW1 “ZZZ3” does not reflect the proceeds from any such sales of the shares. Learned counsel urged the Court to discountenance Exhibit DW1 “ZZZ3” as same is distorted and manipulated.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel urged the Court to hold that the testimony of the Claimant at paragraphs 11, 12, 13, 14 and 15 of his further witness statement on oath remains unchallenged. It was posited for the Claimant that the Court is entitled to accept and act on evidence that is not contradicted by the opposing party who has the opportunity to do so. In this respect, the cases of Ebinwe v. State (2011) 7 NWLR (Pt. 1246) 402 at 416; Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419 at 442 and Insurance Brokers of Nigeria v. ATMN (1996) 8 NWLR (Pt. 466) 316 at 327.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The Claimant argued that his dismissal was wrongful because he was not given opportunity to defend himself on the allegation that he committed an act of gross misconduct as required by Section 36 of the Constitution of the Federal Republic of Nigeria 1999, ( as amended).<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On the allegation that his summary dismissal was wrongful, the Claimant’s case is that the Defendant deprived him of his annual leave for three consecutive years as a result of which his health started to deteriorate. He then applied for sick leave in order to attend to his health vide Exhibit CLW “E”. it is his case that he submitted his sick leave application along with doctor’s sick leave reports {that is, Exhibits CLW F –F1”] in compliance with the directive of the Human Resources unit of the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">To disprove the Defendant’s assertion that he was never sick, the Claimant referred to Exhibit CLW “S” which is a General Out-patient Card dated 31<sup>st</sup> July, 2008. The Card according to the Claimant shows that he visited Orile Agege General Hospital and was attended to by doctors. He also referred the Court to Exhibit CLW “T” of the same date showing that drugs were prescribed for him and Exhibits CLW “G-G1” and “G-GH” which are doctors’ reports addressed to the Defendant’s Human Resource Unit.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">According to the Claimant, Exhibit CLW “J1” [a medical report dated 14<sup>th</sup> August, 2008] was issued to him during a visit to the Hospital for routine medical check up preparatory to his resumption of work. It was his case that he dispatched Exhibit CLW “JI” along with a letter dated 14<sup>th</sup> August, to the Claimant on the same day. The Claimant stated that he testified under oath that he did not receive the queries issued to him by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel submitted that a dismissal shall be wrongful or unfair if the procedures laid down are breached or where the rule of natural justice has been violated. On this point, learned counsel cited the cases of Olaniyan & Ors v. University of Lagos (1985) 2 NWLR (Pt. 9); Shitta-Bay v. Federal Public Service Commission and Patrick K. Ziiden v. Rivers State Civil Service Commission (2007) 4 MJSC.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On the importance of according an employee the right to fair hearing, learned counsel cited the case of Ziiden v. Rivers State Civil Service Commission (supra) where the Supreme Court re-affirmed its earlier decision in the case of Ntukiden v. Oko (1986) 5 NWLR (Pt. 45) 909. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Relying on the case of Ewaranmi v. African Continental Bank (1978) 3 S.C., learned counsel submitted that where a dismissal is done in breach of the rules of natural justice, it will be declared null and void. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Learned counsel urged the Court to hold that the Defendant wrongfully dismissed the Claimant from its employment. It was the prayer of the Claimant that his reliefs be granted by the Court.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I now turn to the Defendant’s reply on points of law dated 2<sup>nd</sup> March, 2016. It was submitted that the discrepancy in the evidence on oath of the Claimant could not have been the mistake of his counsel bearing in mind that it was not his counsel that deposed to the witness statements on oath. It was further submitted that the principle that a party should not be punished for the mistake of his counsel is restricted to procedural matters. See the case of A. G. Federation v. Bi-Courtney Ltd (2012) 14 NWLR (Pt. 1321) 467 at 483 cited by learned counsel for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I will not bother myself with the submissions made by learned counsel in paragraph 3 of the reply on points of law. This is because he merely re-argued the issue whether or not the medical documents tendered by the Claimant are authentic. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It was also submitted that the allegation by the Claimant that the statement of accounts tendered by the Defendant was manipulated is one that alleges fraud or the commission of crime. The Defendant opined that the Claimant is required under Section 135(1) of the Evidence Act 2011 to prove his allegation beyond reasonable doubt. According to the Defendant, the Claimant has failed to adduce any evidence in proof of his allegation. The Court is therefore urged to come to a conclusion that the Claimant must fail in his allegation that the Defendant manipulated Exhibit DW1 “ZZZ3” by virtue of Section 133(2) of the Evidence Act 2011.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I need to observe that the Claimant in paragraph 5 of the reply on points of law merely re-argued an issue he has sufficiently addressed in his final written address. By established principle of law, a reply is intended to be an opportunity to address new issues arising from the adverse party’s address. It is certainly not an opportunity to re-argue or patch up identified lapses in the main address. Thus, I hereby discountenance the said paragraph in its entirety. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Having given serious consideration to the totality of the processes filed in this case, the evidence placed before the Court and authorities referred to, by the parties in support of their respective positions, I am inclined to determine this case on the basis of the issues formulated for determination by the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The law is trite that for a plaintiff in an action founded on unlawful or wrongful dismissal or termination of employment to succeed, he must prove the followings:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.5in;mso-list:l2 level1 lfo4"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">i.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">That he is an employee of the defendant; and<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:.75in;mso-add-space:auto; text-align:justify;text-indent:-.5in;mso-list:l2 level1 lfo4"><!--[if !supportLists]--><span style="font-size:14.0pt;line-height:115%;mso-bidi-font-family:Calibri; mso-bidi-theme-font:minor-latin">ii.<span style="font-stretch: normal; font-size: 7pt; line-height: normal;"> </span></span><!--[endif]--><span style="font-size:14.0pt;line-height:115%">The terms and conditions of the employment, and also demonstrate how the terms and conditions have been breached by the defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">See the case of <b>Texaco Nig. Ltd. v. Kehinde (2001) 6 NWLR (Pt. 708) 224.</b> See also the case of <b>Francis Adesegun Katto v. Central Bank of Nigeria (1999) LPELR-1677 (SC) or (1999) 6 NWLR (Pt. 607) 390</b>, where the Supreme Court held that where an employee complains that his employment has been wrongfully terminated, the onus is on him, first, to place before the Court the terms of the contract of employment and, second, to establish how the terms of the contract of employment have been breached by the employer.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the instant case, Exhibit CLW “C1 – C3”, titled, “RE: OFFER OF PROBATIONARY EMPLOYMENT” establishes that the Claimant was in the employment of the Defendant Bank. It is hardly necessary to observe that neither of the parties has denied the existence of a contract of employment between them. I am therefore satisfied that the Claimant was an employee of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">At this stage, I would like to deal with the second issue distilled by the Defendant. I have chosen to deal with this issue over and above any other issue because it is central to the case of the Claimant. Indeed, the question whether or not the Defendant was justified in its summary dismissal of the Claimant for an act of gross misconduct is pivotal to the case of the Claimant. Every other issue revolves around the question whether or not the Claimant was wrongfully dismissed from the employment of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">DETERMINATION OF ISSUE NO. 2<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Whether the Defendant in the circumstances of this case is not justified to dismiss the Claimant from its employment for proven acts of gross-misconduct <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">From the facts and evidence before the Court, the Claimant admitted that he received the Defendant’s deployment instruction to its office in Yenagoa, Bayelsa State with effect from 28<sup>th</sup> July, 2008 vide Exhibit CLW “DD”. His case is that he did not comply with the posting instructions conveyed through Exhibit CLW “DD” because he was planning to proceed on sick leave about the time so as to be able to attend to his failing health caused by the fact that he had not been allowed to observe his annual leave in the 3 years preceding his new posting.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Exhibits CLW “E”; CLW “F – F1”; CLW “G – G1”; CLW “H” AND CLW “J – J2” were documents tendered by the Claimant in prove of his case that he did not resume as directed in Yenagoa because he applied for sick leave in order to attend to his failing health. The Claimant admitted that on 14<sup>th</sup> August, he received Exhibit CLW “K” which was an internal memo by which the Defendant placed him on indefinite suspension from work. He stated that the said Exhibit was slid into his living apartment through his doormat. The internal memo conveying the notification of suspension is dated 14<sup>th</sup> August, 2008. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">By his pleading and evidence under cross-examination, the Claimant’s case is that he subsequently received the letter of dismissal dated 22<sup>nd</sup> August, 2008 along with another internal memo by which the Defendant invited him to appear before its Disciplinary Committee on 22<sup>nd</sup> August, 2008. For the avoidance of doubt, the internal memo by which the Defendant invited the Claimant to appear before its Disciplinary Committee is Exhibit DW1 “R” dated 14<sup>th</sup> August, 2008. The crux of the case of the Claimant is that he was not given a fair hearing before the Defendant summarily dismissed him.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On its part, the Defendant’s defence to the allegation made by the Claimant is that the Claimant refused to resume in its Yenagoa branch office as directed by its memo of 28<sup>th</sup> July, 2008. The Defendant tendered Exhibit DW1 “P” dated 1<sup>st</sup> August, 2008 by which it queried the authenticity of the sick leave application and supporting documents submitted by the Claimant on that same day, that is, 1<sup>st</sup> August, 2008. Also tendered by the Defendant is another query [Exhibit DW1 “Q” dated 4<sup>th</sup> August, 2008] by which it requested the Claimant to explain the reasons why disciplinary action should not be taken against him for refusing to report in Yenagoa as directed. It is important to mention that the Claimant insisted that he did not receive any of these queries.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Furthermore, the Defendant stated that the internal memo by which the Claimant was invited to appear before its Disciplinary Committee dated 14<sup>th</sup> August, 2008 was received by the Claimant who chose not to appear as requested. It therefore argued that the Claimant cannot allege lack of fair hearing because he was given an opportunity to be heard but he refused to utilize the opportunity. It alleged that the refusal by the Claimant to heed the Defendant’s deployment instruction was an act of gross misconduct for which the Claimant was liable to be summarily dismissed in line with the terms of the contract of employment.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I am satisfied that both parties agreed that the Claimant was instructed to resume in the Yenagoa Office of the Defendant with effect from 28<sup>th</sup> July, 2008. The fact that the Claimant did not resume as directed has not been disputed at all. What is in dispute is the reason why he did not heed the Defendant’s instruction in this respect. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">At this juncture, let me confess that I have carefully perused the documents tendered by the Defendant. Exhibit CLW “E” which is the Claimant’s Leave Application Form was filled out and submitted by the Claimant on 30/07/08, that was two (2) days after he received the internal memo notifying him of his deployment to Yenagoa, Bayelsa State. He indicated on the Leave Application Form that he was applying for his annual leave from 4<sup>th</sup> - 15<sup>th</sup> August, 2008. However, on the following day, 31<sup>st</sup> July, 2008, the Claimant submitted a sick leave application by which he sought to commence a 2-week-sick leave commencing from 1<sup>st</sup> August 2008. Attached to it was Exhibit CLW “F1” issued by Lagos State Hospitals Management Board and signed by one, Dr. Afuwupe. The document indicated that the Claimant “is discharged from sick leave on 1/8/08 – 15/8/08”.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It appears to me that it was the Claimant’s leave application of 31<sup>st</sup> July, 2008 that prompted the Defendant to issue the query dated August 01, 2008 wherein it raised concerns about the leave application submitted by the Claimant. For instance, it was stated that the specific hospital that issued Exhibit CLW “F1” was not indicated and that the said Dr. Afuwape did not stamp the document. The second query dated 4<sup>th</sup> August, 2008 requested the Claimant to explain in writing why disciplinary action should not be taken against him for refusing to resume at the Yenagoa branch of the Defendant as instructed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Although the Claimant claimed that he did not receive the queries but he nonetheless dispatched a letter on the same date [Exhibit CLW “G”] to the Defendant. In Exhibit CLW “G” the Claimant responded to the issues raised in the Defendant’s query he claimed not to have received. He stated that he had attached a stamped version of Exhibit CLW “G” (now Exhibit CLW “G1”]. Remarkably, Exhibit CLW “G1” indicated that the Claimant “is put on sick list on 1/8/08 – 15/8/08. In the circumstance of this case, I am convinced that the Claimant received the queries issued to him by the Defendant. In coming to this conclusion, I have considered the response given by the Claimant in Exhibit CLW “G”, as well as my personal observation of the Claimant while giving evidence under cross-examination. It does not matter to me that the Claimant stated that his response was necessitated by the telephone conversation he had with an officer of the Defendant on that same day. It is a cock and bull story that I do not buy into.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I have additional comments to make on both Exhibits CLW “G” and CLW “G1”. First, the date on which both documents were issued is not indicated. Second, the signatures on the two documents are not the same even though they were both signed by the same Dr. Afuwape. Based on these two observations, I have my doubt if Exhibits CLW “G” and CLW “G1” are of any probative value. In any case, it is curious that the doctor was the one that put an employee on sick leave. The normal practice is for a doctor to recommend to the employer that an employee be given sick leave. Usually, any medical or health reasons for such recommendation would be stated. The only exception is where for emergency medical reason, the affected employee is immediately placed on admission or under medical observation, and in that event, the employer will be notified. That was not the case in the instant case as there is no evidence that the Claimant was placed on admission in the Hospital.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">One germane question that I need to ask is whether the Claimant was on sick leave as claimed by him? The evident truth is that the Claimant applied for sick leave but there is no evidence that the Defendant approved his application for sick leave. He who asserts must prove. Thus, the claimant who asserted that he was on sick leave ought to have adduced evidence that approval was given to him by the Defendant to proceed on sick leave. In the absence of any evidence to the contrary, the finding of the Court that the Claimant was not on sick leave stands. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The next critical question is whether or not the Claimant was denied fair hearing before he was dismissed from the employment of the Defendant? The Defendant claimed that the Claimant was invited to appear before its Disciplinary Committee on August 18, 2008 in respect of the queries issued to him on his application for sick leave and non-resumption of duty. Before this Court is Exhibit DW1 “P” it is an internal memo inviting the Claimant to appear before the Defendant’s Disciplinary Committee. It is an indisputable fact that he did not appear before the Committee. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On the question whether the Claimant actually received the Defendant’s invitation to appear before its Disciplinary Committee before the date scheduled for hearing, the Claimant has given two contradictory evidence. One account is that he did not receive the notice of invitation until the 22<sup>nd</sup> day of August, 2008 when he found it enclosed in his dismissal letter. That is the position he maintained in his pleadings, paragraph 17 of his witness statement on oath deposed to on 27<sup>th</sup> March, 2013, and his testimony under cross-examination. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the second account as could be gleaned from paragraph 9 of his subsequent witness statement on oath deposed to on 5<sup>th</sup> July, 2013, he stated that he received the Defendant’s internal memo inviting him to appear before the Disciplinary Committee on 14<sup>th</sup> August 2008. I am in sync with learned counsel for the Defendant that there is obvious contradiction in the accounts or evidence given on oath by the Defendant. I am unable to agree with the Claimant that the contradiction should be glossed over as an error of his counsel. I have no reservation in agreeing with learned counsel’s position that it was not the Claimant’s counsel that deposed to the Claimant’s further witness on oath deposed to on 5<sup>th</sup> July, 2013. The Claimant himself deposed to the witness statement on oath under reference. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">However, I have no difficulty agreeing with the Claimant that it is not every inconsistency in testimony or evidence that should be regarded as material enough so as to destroy the fabric on which the case of a party is built. That is quite understandable. At the same time, there are inconsistencies that the Court cannot gloss over. This is particularly so where the inconsistency or discrepancy in evidence touches on a question that is fundamental to the case of the party.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I have already pointed out that the fabric of the Claimant’s case is that he was not given a fair hearing before his summary dismissal. I need not cite authorities in support of the proposition that the issue of fair hearing is fundamental to our constitutional jurisprudence. Hence, our courts frown at denial of fair hearing by judicial or quasi-judicial bodies. Thus, where a party alleges denial of fair hearing, whatever issues, facts and evidence that are put forward by the parties in connection with the allegation must be given deserved attention. In other words, the courts do not treat allegation that a party has been denied fair hearing by a body charged with judicial or quasi-judicial duties with levity.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">From the above standpoint, I do not agree with the claimant that paragraph 9 of the Claimant’s witness statement on oath of 5<sup>th</sup> July, 2013 wherein he admitted on oath that he received the internal memo inviting him to appear before the Disciplinary Committee of the Defendant on 14<sup>th</sup> August, 2008 is just one flimsy inconsistency. That cannot be! It is an inconsistency that has profound implications. For instance, If I go along with the Claimant and treat his admission as inconsequential it means that the Defendant summarily dismissed the Claimant on an allegation of gross misconduct without an opportunity to be heard as required by law. This is because in the case of <b>University of</b> <b>Calabar v. Essien (1996) 10 NWLR (Pt. 477) 225, </b>the Supreme Court on the importance of according fair hearing to an employee affected by disciplinary action held as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">“Where an employer dismisses or terminates the appointment of an employee on the ground of misconduct, all that the employer needs to establish to justify his action is to show:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:14.0pt;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">(a)<span style="font-stretch: normal; font-size: 7pt;"> </span></span><!--[endif]--><span style="font-size:14.0pt">that the allegation was disclosed to the employee;<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:14.0pt;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">(b)<span style="font-stretch: normal; font-size: 7pt;"> </span></span><!--[endif]--><span style="font-size:14.0pt">that he was given fair hearing, that is to say, that the rules of natural justice were not breached; and<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:14.0pt;mso-bidi-font-family:Calibri;mso-bidi-theme-font:minor-latin">(c)<span style="font-stretch: normal; font-size: 7pt;"> </span></span><!--[endif]--><span style="font-size:14.0pt">that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation.”<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On the other hand, if I come to the conclusion that the Claimant actually received the invitation extended to him to appear before the Defendant’s Disciplinary Committee pursuant to paragraph 9 of his further witness statement on oath, it dispenses with the need for the defendant to prove that the Claimant received the Defendant’s invitation to appear before its Disciplinary Committee. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The true effect of the evidence of the Claimant in paragraph 9 of his further witness on oath of 5<sup>th</sup> July, 2013 is that he reversed himself, or changed his story from what he stood for earlier. In other word, it is a complete retraction of his earlier narration that he did not receive the Defendant’s invitation to appear before a Disciplinary Committee. See the case of <b>Godwin Alao v. The state (2011) LPELR-3700 CA), Pp. 40-41, paras. F-A</b>. See also <b>James Okpala v. Francis Okoli (2009) LPELR-8792 (CA).</b><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In line with the principles of law established in the case cited above, and having taken into account the circumstances of this case, I am inclined to conclude that the inconsistency in the evidence of the Claimant’s oath is material enough to impugn on his credibility as a witness. The law is that where there is a material contradiction in the evidence given by a party, the Court cannot choose which one to accept and which account to reject. The Court cannot cherry-pick. See the case of <b>Osadim v. Tawo</b> (supra). See also the case of <b>Godwin Nwafor Maduka & Ors v. Victor Echezona Anyadiegwu (2014) LPELR-23751 (CA).<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Thus, the evidence of the Claimant on the point of whether or not he received the said invitation to appear before the Defendant’s Disciplinary Committee is hereby declared as unreliable and without credibility. I therefore come to a finding that he received the invitation but deliberately refused to appear as requested of him by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">My finding and conclusion above is fortified by the step taken by the Claimant on that 14<sup>th</sup> day of August, 2008. He sent Exhibits CLW “H” and CLW “j-J2” to the Defendant. Both Exhibits were dated 14<sup>th</sup> August, 2008. I am reluctant to accept that it is a mere coincidence that the two Exhibits were sent to the Defendant on the same date the memo inviting him to appear before the Disciplinary Committee was written by the Defendant. In Exhibit “H”, the Claimant unilaterally declared that: “In view of my state of health, doctor’s report and medical advice (as attached) it has become imperative that I will resume on the 8<sup>th</sup> of September 2008”.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Exhibit CLW “H” in my considered opinion, presents a strong evidence pointing to the unwillingness of the Claimant to appear before the Defendant’s Disciplinary Committee. It is important to bear in mind that the Claimant applied for a sick leave to last between 1<sup>st</sup> to 14<sup>th</sup> August, 2008 which was not even approved as borne out by the facts and evidence before the Court. Upon receiving an invitation to appear before a Disciplinary Committee on the 18<sup>th</sup> of August, 2008 to explain the medical reports he submitted in support of his application for sick leave and non-resumption at his new duty post as instructed, the Claimant simply dispatched Exhibit CLW “H” to the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Interestingly, the Claimant also sent in Exhibit CLW “J-J3” purportedly issued by Dr. A. A. Elusade, a Medical Officer at Orile Agege General Hospital. The document was not addressed to the Defendant. However, it chastised the Defendant for depriving the Claimant of his annual leave for three (3) consecutive years. The author went on to recommend that the Claimant be allowed to proceed on a 31-day annual leave. It states further that other staff of the Defendant in a similar situation as the Claimant should be allowed to proceed on their annual leave before they break down.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">It is trite principle of law that an employer is required to give an employee an opportunity to be heard before his employment can be terminated as was held in the case of <b>Yusuf v. U.B.N. Ltd (1996) 6 NWLR (pt. 457) p. 632. In that case </b> the Supreme Court held that:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">“Before an employer can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime.”<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Furthermore, n the case of <b>Yusuf v. U.B.N</b>. (supra) <b>p. 646, paras. F-G.,</b> the apex Court held that:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">“The rule of fair hearing is not a technical doctrine but one of substance. The question is not whether injustice has been done because of lack of fair hearing, it is whether a party entitled to be heard before a decision was taken had in fact been given an opportunity of hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment reached is bound to be set aside.”<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the instant case, I have found that the claimant was invited to appear before the Defendant’s Disciplinary Committee to defend himself but he failed to do so. The implication of the above is that the Claimant was given an opportunity to be heard but he did not utilize the opportunity. It follows that the Claimant cannot in the face of the evidence before this Court complain that he was denied fair hearing before his summary dismissal by the Defendant. I am satisfied that he was not denied fair hearing as alleged. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In view of the foregoing, there is merit in the case of the Defendant that the terms of the contract of employment provided a legal basis for it to summarily dismiss the Claimant for refusing to comply with its directive to resume in its Yenagoa office as instructed. I have no doubt in my mind that the Claimant’s refusal to heed his deployment instruction was an act of misconduct which rendered him liable to be summarily dismissed within the terms of the contract of employment as stated in Exhibit CLW “C1 – C3”. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Consequently, I hereby find and hold that in the circumstances of this case, the Defendant was justified to have summarily dismissed the Claimant from its employment for proven acts of gross misconduct. I therefore resolve Issue No. 2 formulated by the Defendant in its favour<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">DETERMINATION OF ISSUE NO. 1 <o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Whether the Claimant by preponderance of credible evidence has been able to demonstrate that he is entitled to reliefs i-iii in the Form of Complaint and Statement of Facts?<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I have held above that the Claimant was justifiably dismissed summarily by the Defendant from its employment for acts of gross misconduct. It follows that the Claimant has not adduced credible evidence to show that he is entitled to reliefs (i) – (iii) or any other relief he is claiming in the statement of facts. Without much ado, I hold that the Claimant has failed to lead credible evidence to establish that he is entitled to reliefs (i) – (iii) he is claiming as per the statement of facts. I therefore resolve Issue No. 1 distilled by the Defendant in its favour but against the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">DETERMINATION OF ISSUE NO. 3<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Is the Claimant entitled to the sum of Twenty Million Naira [N20 Million] being claimed as general damages.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Arising from my decision that the Defendant was justified in summarily dismissing the Claimant from its employment for acts of gross misconduct, it follows that the Claimant is not entitled to the sum of N20 million general damages being claimed. I also resolve Issue No. 3 distilled by the Defendant against the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I will now turn to the fourth issue distilled for determination by the Defendant. It seeks to know whether the Defendant has established its entitlement to the reliefs claimed by way of counterclaim.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%"> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%"> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:20.0pt;line-height:115%">COUNTERCLAIM<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">WEMA BANK PLC………………………………………………………COUNTERCLAIMANT<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span style="font-size:14.0pt;line-height:115%">MR. AYODELE TOMIDE IRANOLA……………..DEFENDANT BY COUNTERCLAIM<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">By its counterclaim, the Defendant/Counterclaimant claims that it is entitled to the sum N14, 805,806.94 from the Defendant by counterclaim. The amount, according to the Counterclaimant represents the indebtedness to the Counterclaimant as at 1<sup>st</sup> June, 2011 in respect of the loans it granted to the Defendant by counterclaim.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">To prove its case, DWI gave evidence on oath and tendered Exhibits DW1 ZZ3” which show some of the loans granted to the Defendant by counterclaim while in the service of the Counterclaimant. Furthermore, the Counterclaimant demanded for the payment of the loans by Exhibits DW1 “V and DW1 “ZZZ”. Also tendered by Counterclaimant are Exhibits DW1 “ZZ1 – ZZZ4” showing a unified account of the Defendant by counterclaim which domiciled with the Counterclaimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I agree with learned counsel for the Counterclaimant that the Bank is entitled under our law to consolidate the accounts of its customer and to also set off any credit balance against any outstanding amount. See the case of Joe <b>Golday Co. Ltd v. Co-operative Dev. Bank Plc</b> (supra) relied upon by the Counterclaimant in this respect.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">On his part, the Defendant by counterclaim in his pleading and further witness statement on oath denied owing the Counterclaimant any amount. In particular, he stated that the Counterclaimant did not grant the sum of N2 Million loan for his benefit. It was the case of the Claimant that the said N2 Million was disbursed directly by the Counterclaimant to its self appointed Stock Broker, Global Asset Management Limited to purchase the Defendant’s shares for the Claimant. The Defendant by counterclaim alleged that the Counterclaimant and Global Asset Management Ltd did not furnish him with written statements on the status of shares purchase on his behalf as required by Exhibit CLW “U1”.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">According to the Defendant by Counterclaim, the Counterclaimant has failed to adduce any evidence to show the number of the purchased shares that have been disposed of in line with Clause 9(e) of Exhibit DW1 “ZZ3”. Also of significance is the allegation by the Defendant by counterclaim that the statement of accounts [Exhibit DW1 “ZZZ3” was manipulated and distorted. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">However, under cross-examination, the Claimant/Defendant by counterclaim admitted that he took some loans from the Counterclaimant. He also admitted under cross-examination that he was yet to repay all the loans even though he stated that he had repaid a whole lot of the loans. The Defendant by counterclaim did not state the exact amount he had repaid and what amount was outstanding. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">The law is settled that oral evidence cannot be allowed to contradict or alter documentary evidence except where fraud is alleged and proved to the satisfaction of the Court. It is also a well-established principle of law that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral evidence. See the case of <b>Eghareva v. Osagie (2009) 19 NWLR (Pt. 1173) 299 S.C. or (2009) LPELR-1044 (SC).<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Similarly, a long line of cases has affirmed that documentary evidence is the best form of evidence to prove its contents and no oral evidence will be allowed to contradict it. See also the case of <b>Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the instant case, the Defendant by counterclaim alleged that the Counterclaimant committed fraud by manipulating Exhibit DW1 “ZZZ3”. Where an allegation of fraud is alleged as in the instant case, the law requires proof beyond reasonable doubt. The Defendant by counterclaim did not even attempt to prove the allegation that the Counterclaimant manipulated the Exhibit under consideration. In view of this fact, he has failed to discharge the onus placed on him by law. See Section 135(1) of the Evidence Act 2011. For this reason, I hereby find that the allegation that the Counterclaimant manipulated Exhibit DW1 “ZZZ3” has not been proved. I therefore disregard the allegation as same has not been established. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Since oral evidence cannot be admitted to alter or contradict documentary evidence, I am satisfied on the basis of the evidence before me that the sum of N2 million was granted by the Counterclaimant for the benefit of the Defendant by counterclaim. To assert otherwise in the absence of credible evidence would not be in tune with established legal principles. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Furthermore, the law is that he who asserts must prove. Thus, since it is the Claimant who is asserting that some of the shares purchased for his benefit were sold, he has the burden of establishing that indeed, part of those shares were sold, and the number of the shares already disposed off. He also has the burden of showing that the price of the shares flunctuated below their purchase price. Sadly enough, he has failed to do so. This failure, in my candid opinion, is fatal to his case.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">From the preponderance of evidence before me, I find and hold that the Defendant by counterclaim is indebted to the Counterclaimant in respect of the various loans granted to him while he was in the service of the Bank. In the absence of credible and reliable evidence to the contrary, I am inclined to accept the evidence [that is, Exhibit DW1 “ZZZ1-ZZZ4”] adduced by the Counterclaimant in prove of its counterclaim. Going by this Exhibit, the amount owed the Counterclaimant by the Defendant by counterclaim as at 1<sup>st</sup> June, 2011 was N14,805,806.95. Thus, the counterclaim succeeds on its merit and is hereby granted. In consequence therefore, I hold that the Counterclaimant is entitled to the sum of Fourteen million, eight hundred and five thousand, eight hundred and six naira, ninety four kobo [N14,805,806.94.].<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">I now turn to the claim for 10% interest rate from the date of judgment being claimed by the Counterclaimant. The Court has a discretion whether or not to grant it. The caveat is that the discretion must be exercised judicially and judiciously taking into account the circumstances of the case. It is for this reason that I hereby decline to grant the claim for 10% interest rate sought by the Counterclaimant. In coming to this conclusion, I have given consideration thoughts to the situation of the Defendant by counterclaim who has ill-advisedly embarked on a very hurtful voyage of litigation.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">In the final analysis, and in view of my finding that the Claimant has failed to prove his case by preponderance of evidence, the case of the Claimant is hereby dismissed for lack of merit. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">For the avoidance of doubt, I hereby order the Defendant by counterclaim to pay the sum of N14,805,806.94 to the Counterclaimant within 60 days from the date of this judgment. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;line-height:115%"> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:14.0pt;line-height:115%">…………..………………………………………………………<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:14.0pt;line-height:115%">Hon. Justice B. A. Adejumo, OFR<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:14.0pt;line-height:115%">President,<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:14.0pt;line-height:115%">National Industrial Court of Nigeria<o:p></o:p></span></p>