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<p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Paul Omoijiade, with Mrs Helen Eiguedo-Okoeguale, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">F. O. Ogungbemi and Opeyemi Usiola-Kuti, with Miss O. Daramola, for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On 18<sup>th</sup> March 2014, the claimant commenced this suit via the General Form of Complaint and statement of facts (accompanied by list of witnesses, witness statement on oath, list of documents and copies of the documents) and claimed the following reliefs against the defendant –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the purported dismissal of the claimant by the defendant bank was unlawful and wrongful as it was done without due process.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court reversing the purported dismissal.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court reinstating the claimant’s employment with effect from March 2014.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Alternative to relief c) above, an order of this Honourable Court that the defendant bank pay to the claimant the sum of N17,236,800.00 (Seventeen Million, Two Hundred and Thirty-Six Thousand, Eight Hundred Naira) as gratuity in line with the trust deed guiding payment of gratuity and pension in the defendant bank.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court that the defendant bank pay to the claimant the sum of N5,205,000.00 (Five Million, Two Hundred and Five Thousand Naira) being his half basic salary from October 2012 when he was placed on suspension as provided in Article 4 paragraph (iii) a, b, c of the Collective Agreement that an employee called back after dismissal is entitled to all benefits due to him.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court that the defendant bank pay to the claimant the sum of N504,000 (Five Hundred Thousand Naira) being the unpaid monthly income from October 2012 when he was dismissed to the time judgment is given in this suit.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court that the defendant bank pay to the claimant interest on the said sum at the rate of 25% or at the Central Bank lending rate.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->h)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court that the defendant bank pay to the claimant the sum of N20,000,000.00 (Twenty Million Naira) as general damages for the mental/physical torture the claimant was subjected to on account of the unfair dismissal.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo11"><!--[if !supportLists]-->i)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court that the defendant bank pay to the claimant the sum of N5,000,000.00 (Five Million Naira) being the cost of litigation.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In reaction, the defendant entered formal appearance vide the memorandum of appearance and then filed its statement of defence, list of witnesses, defendant’s witness oath, list of documents and copies of the documents. To these, the claimant filed a reply to the defendant’s statement of defence. The defendant later with leave changed its witness.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">At the trial, the claimant testified on his own behalf as CW, while Lucky Umukoro, who works with the defendant in the Internal Control Department, testified for the defendant as DW. At the close of trial on 9/3/2016, the Court ordered parties to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s final written address is dated 11<sup>th</sup> May 2016 but filed on 13<sup>th</sup> May 2016, while the claimant’s is dated and filed on 2<sup>nd</sup> June 2016. The defendant’s reply on points of law is dated 14<sup>th</sup> June 2016 but filed on 15<sup>th</sup> June 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CASE OF THE CLAIMANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimant’s case is that he was employed by the defendant vide a letter of offer of employment dated 1<sup>st</sup> April 1981 and served in different positions for 32 years. This appointment was confirmed in 1982. That on 16<sup>th</sup> June 2012 during call over, fraudulent transactions by means of cheques were discovered to have occurred in a number of accounts in his Mission Road, Benin City Branch. That internal investigations revealed that the fraudulent transactions started in 2009 before his transfer to the branch. That he and other branch staff were interviewed on the alleged fraud. He and other staff were invited by the EFCC for interrogation/investigation. That he was subsequently placed on suspension vide a letter dated 26<sup>th</sup> September 2012. That while on suspension, the sum of N101,000.00 was paid to him as half salary as against N252,000.00 which ought to be the half of his salary being N504,000.00. To the claimant, he has never been found wanting, he did not sign any document relating to the fraud, and no proceeds of the fraud were traced to him. That despite all of this, he received a letter from the defendant dismissing him for gross misconduct even when he was not queried as enjoined by the applicable collective agreement or heard as enjoined by international best practice of industrial relations and personnel management. The appeal by the claimant to the defendant to reverse the dismissal was refused on the ground that it lacks merit. To the claimant, his dismissal was unfairly done without due process as he was not given any query, and the dismissal was done in bad faith in order to subject him to mental and physical torture, hence this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CASE OF THE DEFENDANT</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">In its defence, the defendant denied every averment of the claimant and stated that the claimant was involved in the series of fraud transactions that took place under his nose as the Branch Head of Operations. The defendant stated that upon discovery of the fraud transactions, the claimant alongside others were issued with queries and were placed on suspension pending investigation of the matter. That the claimant was subsequently invited by the Inspectorate Department for interrogation i.e. questions and answers session, and the claimant responded to the questions posed to him in writing. Thereafter, the Disciplinary Committee met and dismissed the claimant for his involvement in the fraud transactions. The defendant then urged the Court to dismiss the claimant’s reliefs in their entirety.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE SUBMISSIONS OF THE DEFENDANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendant submitted 6 issues for the determination of this Court. They are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo13"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the dismissal of the claimant by the defendant having afforded the claimant right to fair hearing in accordance with section 36 of 1999 Constitution (as amended) before dismissing of the claimant was proper and lawful.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo13"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant’s employment was not subsisting as a result of his dismissal by the defendant and is not entitled to earn salaries and other entitlements beyond the date of termination contained in the letter.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo13"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the defendant cannot be compelled to re-absorb the claimant in the circumstances.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo13"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is precluded from claiming the sum of N17,236,800.00 as gratuity under the trust deed in view of Pension Reform Act having ceased to be in the employment of defendant by reason of his dismissal in 2014.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo13"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is not entitled to be paid the sum of N5,205,000.00 as due and payable to him while on suspension.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo13"><!--[if !supportLists]-->6.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is not entitled to an award of general damages in the sum of N20,000,000.00 for mental and physical torture and sum of N5,000,000.00 cost of the action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1, the defendant submitted that it afforded the claimant his right to fair hearing as enshrined in the 1999 Constitution (as amended) before he was dismissed from the defendant’s employment. That the defendant put the claimant on notice as to the bank’s claim against him. That the claimant put his letter of suspension in evidence, which letter is dated 26/9/2012. In the said letter of suspension, that it is expressly and clearly stated that the claimant has been placed on suspension from duty with effect from 26<sup>th</sup> September 2012 for “your alleged involvement in fraudulent activities currently under investigation at Mission Road Branch”. To the defendant, the aforesaid letter of suspension suffices as query to the claimant in the suit. That the said letter of suspension actually stated the allegation of misconduct against the claimant and enabled a space of time to appear before the Disciplinary Committee for question and answer session, referring to <i>Inonikhe v. Unity Bank Plc</i> [2011] LPELR-1503(SC). That <i>Emir of Kano State v. Agundi</i> [2006] 2 NWLR (Pt. 965) 572 held that a letter of suspension, which states the allegation against a person, is sufficient as query. The defendant then submitted that the letter of suspension served on the claimant stated the allegation against him.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that in furtherance to the letter of suspension, which of course, is a query on the claimant, the claimant was subsequently invited to the defendant’s 12<sup>th</sup> Floor at the Head Office for a question and answer session, where questions relating to the fraud as it involved the claimant were asked and he gave a written answer, referring to the averments contained in paragraphs 11, 12 and 14 of the statement of facts where the claimant averred that he was summoned to appear before the Administrative Panel. Also that during cross-examination, the claimant admitted to the fact that he appeared before the Internal Auditors at the branch level and that he responded to all questions posed to him by the Internal Auditors from the Head office. That the Internal Auditors are part of members of the disciplinary committee of the defendant bank. That the claimant made written answers to the questions given to him.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><u><o:p> </o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that its evidence which was unshaken during cross-examination is that the defendant issued query on the claimant via the letter of suspension and that the claimant was made to undergo questions and answers session with the Administrative Panel of the defendant. It was thereafter that the defendant’s management took decision to dismiss the claimant having regard to his level of involvement in the fraud. To the defendant, it satisfied the requirement of fair hearing or natural justice before it dismissed the claimant for his misconduct. The defendant then referred to <i>Inonikhe v. Unity Bank Plc</i> [2011] LPELR-1503(SC) at page 31 where Rhodes-Vivour, JSC held thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Accusing an employee of misconduct, etc. by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also referred to is <i>Arinze v. First Bank (Nig.) Ltd</i> [2000] 1 NWLR (Pt. 1) 103 CA.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that from the evidence before the Court, the defendant afforded the claimant his right to fair hearing before he was eventually dismissed because his response was unsatisfactory and the decision of the defendant was communicated to the claimant in writing via the dismissal letter.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then went on speculation. That the claimant might contend that the defendant ought to have prosecuted him in law court in order to prove his innocence, hence the defendant has infracted on his right to fair hearing. To the defendant, it is not an obligation on the defendant to prosecute the claimant in a court before it can dismiss him notwithstanding that there was an accusation of crime, citing <i>Arinze v. FBN Ltd</i> [2004] 12 NWLR (Pt. 888) 663 SC, where the Supreme Court held that in statutory employment as well as in private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bothering on criminality, and in such a case, it is not necessary nor is it required under section 36(1) of the 1999 Constitution that an employee must first be tried in a court of law. Also referred to are <i>Yusuf v. Union Bank Ltd</i> [1996] 6 NWLR (Pt. 457) 632 and <i>Raymond S. Dangote v. C. S.C. Plateau State & ors</i> [2001] 9 NWLR (Pt. 717) 132. That this is more so when the contract of service agreement between the claimant and the defendant specified clearly that it shall be lawful for the defendant to terminate or dismiss the contract of employment of any employee who has been found .guilty of “misconduct of any kind”, referring to the contract of service agreement of the claimant. The defendant further referred to <i>Olarewaju v. Afribank (Nig.) Plc</i> [2001] 13 NWLR (Pt. 731) 691 SC.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"> <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">It is, therefore, the submission of the defendant that it has not in any way whatsoever breached the right of the claimant to fair hearing as guaranteed under section 36 of the 1999 Constitution. Accordingly, that the dismissal of the claimant by the defendant was proper and lawful.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the claimant has made reference to collective agreements such as Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) and alleged that the defendant did not observe its provisions before dismissing him. It is the submission of the defendant that the claimant cannot rely on the collective agreements as they do not form part of his contract with the defendant. Hence the collective agreements are not binding on the defendant. That it is important to state at this stage that collective agreements are generally unenforceable. Therefore, the collective agreements cannot be a ground for a cause of action, referring to <i>Gbedu v. Itie</i> [2010] 10 NWLR (Pt. 1202) at 282 – 283. That the law is that collective agreements are generally not binding. This is because although the collective agreement was made for the benefit of an employee, there is no privity of contract between the employer and employee, citing <i>Chukwumah v. Shell Petroleum Development Company of Nig. Ltd</i> [1993] 4 NWLR (Pt. 288) 512. That for a party to enforce the provision of a collective agreement, the party must establish that the collective agreement was expressly incorporated unto the contract of service of the employee and the employee who seeks to rely on it is a member of the union which signed the collective agreement on behalf of its members.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that the only instance where a collective agreement is enforceable is when it has been incorporated into the contract of employment. That this position is supported by the Court in <i>UBN v. Chinyere</i> [2010] 10 NWLR (Pt. 1203) at 471 – 472, <i>Texaco Nig. Plc v. Kehinde</i> [2001] 6 NWLR (Pt. 708) 224, <i>Rector Kwara Poly v. Adefila</i> [2007] 15 NWLR (Pt. 1056) 42, <i>NNB Plc v. Egun</i> [2001] 7 NWLR (Pt. 711) 1 at 18 and <i>Unity Bank Plc v. Ademiluyi</i> [2013] LPELR-21984(CA). That a collective agreement standing alone is not binding on an individual employee and the employer unless it is incorporated into the contract of service, referring to the claimant’s letter of employment dated 1/4/81. That although mention was made of collective agreement in claimant’s letter of employment dated 1/4/1981, in the last paragraph thereof, it was stated as follows: “Other conditions of service will be laid down in the contract of service Agreement and also in the Collective Agreement currently in force”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the issue of whether or not this clause/term of the claimant’s letter of employment incorporated the collective agreement in the contract of service came up before the Court of Appeal in <i>Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares</i> [2012] 11 NWLR (Pt. 1312) 550, and the Court of Appeal per Okoro, JCA (as he then was) in interpreting the same and exact clause as in the claimants’ letter of employment stated at pages 568 – 569 as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">In the appointment letter i.e. exhibit ‘A’ given to the respondent since 1979 by the appellant, it is stated in paragraph three thereof ‘Other conditions of service will be laid down in the contract of service Agreement and also in the Collective Agreement currently in force’.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">According to the learned counsel for the respondent the above paragraph means that the collective agreement has been incorporated into the Contract of Service Agreement which would make the collective agreement binding on both parties. The learned trial judge upheld this argument. But I think otherwise. That paragraph, to my understanding merely informs the respondent of the two documents guiding his employment. The first is the Contract of Service Agreement which the respondent later signed with the appellant which is exhibit ‘K’ in this case. The other document is the collective agreement signed between the Nigeria Employers Association of Bank, Insurance and Allied Institutions on the one part and the Association of Senior Staff of Banks, Insurance and Financial Institutions, on the other part. As I stated earlier, exhibit ‘F’ is an addendum to exhibit ‘E’. Clearly, these are two sets of agreements. If exhibit ‘E’ has been incorporated into exhibit ‘K’ it should be stated in exhibit ‘K’ that exhibit ‘E’ has been so incorporated. There is no such clause or paragraph in exhibit ‘K’ giving such a suggestion.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, this case is on all fours with the case at hand and so this Court is bound by it, urging the Court to accordingly hold that the alleged collective agreement was not incorporated into the claimant’s contract of service and as such not binding on the defendant, relying on <i>Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares</i> and <i>Dr. Ben v. Chuckwumah v. Shell Petroleum Development Company of Nig. Ltd</i> [1993] 4 NWLR (Pt. 288) 512 SC.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that the alleged collective agreement was between the Nigeria Employers Association of Banks, Insurance and Allied Institutions on the one part, and the Association of Senior Staff of Banks, Insurance and Financial Institutions, on the other part. That neither the claimant nor the defendant was a party to the collective agreement and not being parties to it cannot be bound by same. That the claimant has not pleaded facts or led evidence at trial to establish that he is a member of the union that allegedly signed the collective agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the further submission of the defendant that it complied substantially with the International Best Practice of Industrial Relations and Personnel Management before it dismissed the claimant for gross misconduct. Also, that the defendant complied with Article 119(5) of the International Labour Organization (ILO). That the defendant afforded the claimant the opportunity to know the allegation against him and was given the opportunity to state his response to the allegation, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant addressed issues 2 and 3 together. Issue 2 is whether the claimant’s employment was not subsisting as a result of his dismissal by the defendant and is not entitled to earn salaries and other entitlements beyond the date of termination contained in the letter of dismissal; while issue 3 is whether the defendant cannot be compelled to re-absorb the claimant in the circumstance. To the defendant, if the Court finds that the claimant’s employment was validly determined by the defendant under issue 1 above, then the claimant’s employment had ceased to exist and there is no more master/servant relationship, citing <i>Afribank (Nig.) Plc v. Osisanya</i> [2000] 1 NWLR (Pt. 642) 599 and <i>Katto v. CBN </i>[1999] 6 NWLR (Pt. 607) 380 at 414. That where an employer terminates the employment of its employee in compliance with the terms and conditions of their contract of employment, there is nothing the Court can do as such termination is valid in the eyes of the law, citing <i>Isheno v. Julius Berger (Nig.) Plc</i> [2008] 6 NWLR (Pt. 1084) 582.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the further submission of the defendant that the Court will not impose an employee on an unwilling employer even where the employer’s behaviour or motive for terminating the employment of the employee is wrongful and unjustifiable, unless the employment has statutory flavour or there are special circumstances which warrant the making of an order reinstating the employee, referring to <i>Omenka v, Morison Ind. Plc</i> [2000] 13 NWLR (Pt. 683) 147, <i>Union Beverages Ltd v. Owolabi</i> [1988] 1 NWLR (Pt. 68) 128 and <i>Ajayi v. Texaco (Nig.) Ltd</i> (1987) 3 NWLR (Pt. 62) 577. That the law is that a court will not impose a willing employee on an unwilling employer, referring to <i>UBN Ltd v. Ogboh</i> [1995] 2 NWLR (Pt. 380) 647 SC.<b> </b>That where an employer has terminated the employee’s employment, either rightly or wrongly, the Court will not make any such declaration that such contract is subsisting, referring to <i>Osisanya v. Afribank</i> (<i>supra</i>), <i>Ilodibia v. NCC Ltd</i> [1977] 7 NWLR (Pt. 512) – the page is not supplied – as well as <i>Rivers Vegetable Oil Company Ltd v. Egukola</i> [2009] LPELR-8379(CA).<b> </b>That at common law, a master cannot be compelled to retain the service of his servant. No court can impose an employee on the employer. The only remedy available to the servant is an action in damages, citing <i>Osunsanya v. Afribank Nig. Plc</i> (<i>supra</i>), <i>Iwuchukwu v. Nwizu</i> [1994] 7 NWLR (Pt. 357) 397 and <i>Vine v. National-Dock Labour Board</i> [1956] 3 All ER 939.<b> </b>That the position of the law is that where there has been a purported termination of a contract of service, a declaration to the effect that a contract of service still subsists will rarely be made, citing <i>Bankole v. NBC</i> [1968] 2 All NLR 371 and <i>Shitta-Bey v. Federal Public Service Commission</i> [1981] 1 SC 40.<b> </b>That the claimant has not proved to this court that his employment is protected by statute or enjoy a statutory flavour to be entitled to an order of specific performance, citing <i>Chukwuma v. Shell Petroleum</i> [1993] 4 NWLR (Pt. 289) 512; <i>Olaniyan v. University of Lagos</i> [1985] 2 NWLR (Pt. 9) 559.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the Court cannot order that the claimant’s salaries be paid by the defendant from the year of the purported termination as if there was no termination of contract. Also, that the Court cannot make an order reinstating or directing the defendant to reabsorb the claimant into its service having validly terminated his contract of employment, urging the Court to so hold. That this Court cannot make an order reversing the dismissal of the claimant and that the Court will not reinstate the claimant’s employment with effect from March 2014 as the claimant does not enjoy statutory flavor. Also, that the Court will not order the defendant to pay to the claimant the sum of N504,000.00 being unpaid monthly income from October 2012 till judgment is given as the claimant did not work for such period and is not entitled to interest on the said sum. The defendant, therefore, submitted that reliefs b), c), f) and g) must fail as the claimant has failed to prove his entitlement to them, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 4 i.e. whether the claimant is precluded from claiming the sum of N17,236,800.00 as gratuity under the trust deed in view of Pension Reform Act having ceased to be in the employment of defendant by reason of his dismissal in 2014, the defendant submitted that the claimant is not entitled to claim the sum of N17,236,800.00 (Seventeen Million, Two Hundred and Thirty-Six Thousand, Eight Hundred Naira) as gratuity under the trust deed because the trust deed is no longer valid in law. That in making his claim, the claimant relied on the provision of the Deed of variation of trust Deed between Union Bank of Nigeria Plc and Union Trustees Ltd and Williams Street Trustees Ltd, which was admitted in evidence. Clause 7 and 9(b) of the said Deed provide for those who are qualified to take benefit of the Deed. Clause 7 provides thus: “The qualifying period of receipt of benefit vide the scheme shall be ten continuous years service from the date of engagement, but payable only upon retirement or cessation of employment”. Clause 9(b) provides that: “If a member withdraws his/her services before the normal retirement age he/she will be entitled to receive pension as shown in the attached schedule when the member has attained the age of 45”. To the defendant, the provision of clause 9(b) of the Deed quoted above is very clear and is to the effect that where a member of the Pension Scheme (as the claimant alleged he was) withdraws his service, he will be entitled to receive pension when he attained the age of 45 years.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the first note, the defendant submitted that the claimant does not come within the compass of those who qualified to take benefit of the provision of the trust Deed. That the claimant neither withdrew his service nor was his employment terminated by the defendant. Rather he was dismissed for gross misconduct. To the defendant, a staff who was dismissed for gross misconduct like the claimant herein is not entitled to claim pension under the trust deed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">More so, that before the claimant can be entitled to grant of his relief for pension, if at all he is entitled, he must plead the facts and lead evidence to establish that he has served continuously for 10 years and that he has attained the age of 45 years. That the claimant did not plead fact that he has attained the age of 45 years and that he was terminated or retired from the defendant’s employment; as such his claim for pension under the Trust Deed must fail.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">But more importantly is whether against the backdrop of the provisions of sections 3, 4, 8 and 12 of the Pension Reform Act 2004 the claimant can claim pension under the Deed of variation of Trust Deed. Section 8(i) of the Pension Reform Act provides that “Notwithstanding the provision of subsection (2) of section 1 of the Act, any employee when at the commencement of this Act is entitled to retirement benefits under any pension scheme existing before the commencement of this Act but has three or less years to retire, shall be exempted from the scheme”. That the Pension Reform Act 2004 came into effect on 25<sup>th</sup> June 2004. The provisions of sections 8 and 12 of the Pension Reform Act as to those who have three years to retire means that such coverage period would have expired at the end of June 2007.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That assuming without conceding that the Court finds that the claimant was wrongly dismissed, and thereby convert it to retirement, the claimant can only be entitled to payment of gratuity under the Pension Reform Act. This means that the claimant as far as the instant case is concerned, cannot claim under the Deed of variation of Trust Deed as he is presently seeking to do as per his statement of facts before the Court. That it is trite that the law for determining the substantial claim of the claimant is the law as at the time the cause of action arose. The claimant was dismissed from the defendant’s service effectively from 25<sup>th</sup> October 2013. Therefore his cause of action arose on that day (25<sup>th</sup> October 2013). Therefore, the claimant’s claim comes under the ambit of the Pension Reform Act 2004 which came into force on 25<sup>th</sup> June 2004.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that since the claimant’s claim is not based on the Pension Reform Act 2004, his relief d) praying for payment of gratuity under the Trust Deed must fail, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In respect of issue 5 i.e. whether the claimant is not entitled to be paid the sum of N5,205,000.00 as due and payable to him while on suspension, the defendant submitted that the claimant has failed to prove his entitlement to this sum which he alleged to be his half basic salary from October 2012 when he was placed on suspension to the time he is called back. To the defendant, any employee placed on suspension pending the investigation of the allegation against him is only entitled to receive half salary for the period of suspension. That such employee placed on suspension, if eventually dismissed for the gross misconduct against him, is not entitled to refund of the half salaries not paid to him during his suspension. That it is the defendant’s claim that the claimant was involved in gross misconduct and thereby earned a dismissal. That the claimant has not proved that he was recalled from suspension by the defendant to justify his claim for payment of half salary unpaid during suspension.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the further submission of the defendant that the claimant’s claim under the relief is nebulous as the claimant’s claim is infinite and indefinite. That the claimant only stated when the half basic salary began (i.e. October 2012) but failed to state when it came to an end for the Court to determine the range of the award. Also, that a claim for payment of outstanding half salary from suspension period is by nature of a claim for special damages; and the law is that a claim for special damages must be pleaded and particularized and proved by the claimant in order to be entitled to it, all of which the claimant failed to do. That the Court is, therefore, not in the position to imagine or surmise how much was outstanding per month and for how many months or years outstanding to be able to award or grant the relief. That the relevant fact of the claimant’s statement of fact is contained in paragraph 29 and paragraph 31 of the written oath. No other averment shed light on this nebulous claim. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Finally, the defendant submitted, on the issue that the claimant based his claim on Article 4 paragraphs (iii) a, b, c, of the collective agreement, that it earlier argued under issue 1 that the collective agreement referred to therein is not binding on the defendant and is, therefore, unenforceable as the defendant is not a party to the agreement, urging the Court to refuse the claim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In relation to issue 6 i.e. whether the claimant is not entitled to an award of general damages in the sum of N20,000,000.00 for mental and physical torture and sum of N5,000,000 as cost of the action, the defendant submitted that if the Court finds that the claimant was lawfully dismissed, he is not entitled to an award of general damages in the sum of N20 million or any sum at all and he is not entitled to N5 million or any other sum as cost of the action. Here, the defendant adopted the submissions under issue 1 above to the effect that the claimant was properly and lawfully dismissed as a result of his gross misconduct. That by virtue of the claimant’s contract of service agreement between him and the defendant, the defendant had the power to dismiss the claimant for an act of gross misconduct, referring to clause ii of the contract of service agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in the Exhibit D3, which is the written interrogation of the claimant, the claimant admitted that it was his duties to coordinate the branch and to ensure reconciliation of account but that he failed in his duties. In his answer to a question, he stated thus: “The duties were diligently assigned to them with hope that the work will be okay. I did not foresee that they were fraudulent”. In another response, he stated thus; “As the RBO I have diligently done my work but because of lack of proper call over and reconciliation of GL, proof gave rise to the fraud. But control function was not abdicated to officers III and contract staff”. Also, in his response to a question on what lapses would he say contributed to the fraud in his branch, the claimant admitted that “lack of not following the internal laid down process, lack of improper call overs, GL not properly proofed, password compass, allowing outsourced staff to process work not assigned to them”. That by all of this, the claimant admitted that he did not carry out his duties as the Head of Branch Operation diligently which led to massive fraud under his nose and watch.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the report of the Inspection Department admitted as Exhibit D2 indicted the claimant. The defendant, therefore, submitted that the claimant was lawfully dismissed for gross misconduct and is not entitled to an award of damages nor cost of the action and the two claims must fail, urging the Court to so hold. In conclusion, the defendant urged the Court to dismiss the claimant’s action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE SUBMISSIONS OF THE CLAIMANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimant on his part submitted four issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo14"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the dismissal of the claimant without following due process as laid down in the Collective Agreement and section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is unlawful and wrongful and therefore null and void.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo14"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the dismissal of the claimant from the defendant’s employment without fair hearing accord with international best practice and ILO Recommendation 119.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo14"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant’s employment which was unlawfully and wrongfully dismissed on the 24<sup>th</sup> day of October, 2013 is still subsisting and unbroken and therefore entitles the claimant to all salaries and allowances due to him from the date of wrongful dismissal to the date of judgment.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo14"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is entitled to all reliefs claimed in this suit including the relief of payment of gratuity under the defendant pension Trust Deed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue a), the claimant submitted that the purported dismissal of the claimant via the defendant’s letter dated the 24<sup>th</sup> October 2013 without fair hearing is in breach of his fundamental right as enshrined in section 36 of the 1999 Constitution (as amended) and the collective agreement (Exhibit C7) which was incorporated into the claimant’s contract of employment and, therefore, null and void, referring to <i>BOI v. NUBIFIE</i> [2012] 26 NLLR (Pt. 73) 79 and <i>Aiyetan v. The Nigerian Institute of Oil Palm Research</i> [1987] LPELR-275(SC). That from these authorities a person (the claimant in this case) cannot be said to have been given fair hearing unless there is a query issued stating the offence so committed and the claimant given opportunity to defend himself of such allegation before a disciplinary action can be taken against him.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then referred the Court to DW’s statement at paragraph 10(iii), which is –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">In the interview conducted, all the staff indicted the claimant as being the principal actor to the fraud. The Claimant was said to have cordial relationship with the two suspects and always shielded them from being exposed on all the fraudulent transactions.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, this allegation was never brought to his notice by the accuser or even the internal audit department of the claimant who conducted the interview neither is there any evidence before this Court that the claimant was so queried before he was dismissed. That recently the Court of Appeal in <i>Aloysins v. Diamond Bank Plc</i> [2015] 58 NLLR PTT page 139, on fair hearing had this to say –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">...By s.36 (3) of the Constitution, fair hearing also includes the announcement of the decisions of the Court or tribunal on the person’s right and obligations. In the instant case, the claimant was investigated by a Disciplinary Panel set up by the defendant on the transaction and both parties agreed that the claimant was so investigated by the Panel. However, it is in evidence before the Court that the findings or report of this Panel was never made known to the claimant before his employment was terminated. This is contrary to the Rules of fair hearing. The defendant was under a duty to make known to the claimant, the report of its Disciplinary Panel on the transaction in question, failure of which is contrary to s.36(3) of the Constitution of the FRN, 1999 as amended.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That in the instant case, the claimant was never made to appear before any disciplinary panel neither was he even confronted with any allegation of fraud or misconduct.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant had argued that its letter of suspension sufficed as query and relied on <i>Emir of Kano State v. Agundi</i> [2006] 2 NWLR (Pt. 965) 572. To the claimant, this assertion is incorrect and untrue and the case cited was cited out of context and does not apply to the case at hand. For the avoidance of doubt, the claimant replicated the said letter of suspension for the purpose of determining whether it meets the requirements of fair hearing specified in the above cited authorities. The suspension letter (Exhibit C4) reads thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">We advise that you have been placed on suspension from duty with effect from 26<sup>th</sup> September, 2012 for your alleged involvement in fraudulent activities currently under investigation at Mission Road Branch.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">While on suspension, you should call in the office every morning (8.00am) to sign the attendance register until the determination of the case.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Please acknowledge receipt.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Yours sincerely,<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Mike Iyela Head, Human Resources<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that the wordings of the above letter are explicit as to its intention which is to place the claimant on suspension pending the conclusion of investigation into the fraudulent activities in the defendant’s branch at Mission Road, Benin City, and cannot in any way/imagination be termed a query. That there is no place the claimant was referred to a disciplinary panel in the above letter for the purpose of exculpating himself, relying <i>Imonikhe v. Unity Bank Plc</i> [2011] LPELR-1503(SC) at 31 cited by the defendant, where the Supreme Court stated thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Accusing an employee of misconduct by way of query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That even a mere look at the suspension letter (Exhibit C4) will reveal from its very heading that it is just a suspension and not a query neither did the said letter of suspension call for any answer by the claimant for it to satisfy the apex Court’s requirement on fair hearing, praying the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that <i>Emir of Kano State v. Agundi</i> [2006] 2 NWLR (Pt. 965) 572 relied upon by the defendant does not apply to this case at hand and that same was quoted out of context as there was nowhere in the said ruling of the Court of Appeal where it was held that a suspension letter amounts to query. In <i>the Emir of Kano State case</i>, the 1<sup>st</sup> respondent, a member of the Jammo Babba House, was installed Sarkin Dawaki Mai Tuta and turbaned in 1999. Following the dismissal of the 1<sup>st</sup> respondent from office in 2003, the 1<sup>st</sup> – 9<sup>th</sup> respondents, who are members of the same Jammo Babba House, instituted an action against the applicants therein and the 10<sup>th</sup> respondent before the High Court of Kano State. Upon hearing the parties on an application for interlocutory injunction filed by the respondents, the trial court delivered a ruling in favour of the 1<sup>st</sup> – 9<sup>th</sup> respondents. The applicants were dissatisfied with the ruling and appealed to the Court of Appeal. The applicants also applied for stay of further proceedings before the trial court, which was refused. The applicants then applied to the Court of Appeal for a similar relief. The Appeal Court granted the prayer for stay of proceedings regarding the substantive suit pending the determination of the appeal filed against the ruling of Hon. Justice Saka Yusuf of the Kano State High Court delivered on 18/10/04. To the claimant, the substantive suit where the status of the “suspension letter and Directive summons” were to be determined in the above stated case was before the High Court and there was no place in the Court of Appeal ruling where it was stated that a letter of suspension is sufficient as query.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Also, that the defendant had stated that the claimant was invited to its 12<sup>th</sup> Floor at the Head office for question and answer sessions and that the claimant stated in paragraphs 11, 12 and 14 of his statement on facts that he was summoned to appear before an administrative panel. To this, the claimant submitted that the above assertion is incorrect and untrue. That there is no evidence before this Court to substantiate this fact and parties cannot in their written address raise the issue of fact, citing <i>Buraimoh v. Bamgbose</i> [1989] 13 NWLR (Pt. 109) 352 SC at 365.<b> </b>That there is nothing in paragraphs 11, 12 and 14 of the claimant’s statement of facts suggesting that the claimant averred he was summoned to appear before an administrative panel as stated by the defendant in its final written address.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that it is pertinent to determine whether the question and answer session (Exhibit D3) before defendant’s audit at the branch level is before this Court same not having been pleaded and whether it even amounts to a query assuming but not conceding that it was pleaded. That Exhibit D3, which is a question and answer section with the Auditor that came to the branch, was never pleaded in evidence and that was why the claimant’s counsel registered his objection to the admissibility of Exhibit D3 but the defendant insisted that Exhibit D3 was what the defendant referred to as query in its pleading the basis of which Exhibit D3 was admitted in evidence, relying on the pleading before this Court and the defendant’s list of documents.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that a document not pleaded goes to no issue and that reference to a pleaded document as another document not pleaded is not tantamount to pleading, referring to <i>Oyediran v. Alebiosu II</i> [1992] NWLR (Pt. 249) 550; [1992] LPELR-2868(SC) at page 2, where the Supreme Court held that a document must be pleaded to be admissible. In the words of the Supreme Court –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Mr. J. I. Makoji's letter referred to in Exhibit D2 was clearly not pleaded. It could not therefore have been tendered at the trial since it was not pleaded. Moreover, it is settled law that reference in a pleaded document to another document which is itself not pleaded, is not tantamount to pleading that other document and it is not open to any Court to act on such unpleaded document.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also referred is <i>Raphael Ogunika v. Corporate Affairs Commission</i> [2010] LPELR-489(CA), which applied the principle enunciated in <i>Oyediran v. Alebiosu II</i>. Given these authorities, the claimant then submitted that this Court cannot act on Exhibit D3 being an unpleaded document and it cannot be admitted in evidence as query when there is nothing written on it that is a query, praying the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that assuming but not conceding that the said Exhibit D3, which was smuggled in as query by the defence counsel in a futile attempt to correct the defendant’s failure to issue the claimant a query before his dismissal after 32 years of service, is to be acted upon by this Court then the said Exhibit D3 is not a query and does not satisfy the requirement of the law as to fair hearing. That during cross-examination of DW, Mr. Lucky Umukoro, the following questions and answered ensued –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Question: was the claimant issued any query by the boss <o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Answer: I am not aware of any query issued to the claimant by the regional head branch operation. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Question: Can you point to the Court where query is written on Exhibit D3 <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Answer: Exhibit D3 consist of queries that is questions. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the witness stated under cross-examination that he is not aware of any query but went ahead to state that Exhibit D3 consists of queries. However, that the witness could not point to the Court where the word query was written but admitted that the said exhibit comprise of questions and answers. That the law has been stated by the Court of Appeal that a question and answer session with audit as it is in this case cannot constitute query but could only form the basis upon which query could be issued, praying the Court to so hold, and referring to <i>Salami v. Union Bank of Nigeria Plc</i> [2010] LPELR-8975(CA), where it was held thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">It is a question and answer session between an auditor and the appellant. At the best Exhibit P23 qualifies as nothing more than the report of an investigation conducted by an auditor. I am of the considered view that as stated by the lower Court in its judgment, Exhibit ‘P23’ should have formed the basis of a formal notification to the appellant of the case of gross misconduct.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant also submitted that Exhibit D3 does not have an author, same was not signed, neither was it dated; and as such, it is inadmissible, relying on <i>Agbone v. Nulec Industrial Ltd</i> [2015] 58 NLLR (201) 467 NIC and <i>Onuorah v. Access Bank Plc</i> [2015] 55 NLLR (Pt. 186) 17.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the cases of <i>Arinze v. First Bank (Nig.) Ltd</i> [2001] 1 NWLR (Pt. 1) 103 at 104, <i>Yusuf v. Union Bank Ltd</i> [1996] 6 NWLR (Pt. 45) and <i>Olarewaju v. Afribank (Nig.) Plc</i> [2001] 13 NWLR (Pt. 731) 691 cited by the defendant are different from the instant case because the claimant was never queried as was done in the above cited cases, relying on <i>Ngboye v. Obat Oil and Petroleum Limited</i> [2011] 25 NLLR (Pt. 21) at 265 – 266 and <i>John Anakism v. UBA Ltd</i> [1994] 1 NWLR (Pt. 322) 557.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That from the totality of the evidence before this Court, the defendant is unable to prove that the claimant was involved in the fraud, nor was he the one who initiated the fraud. That under cross-examination, DW admitted after examination of Exhibit C3 (list of cheque) that only the total summation of each cheque is credited to the salary GL. That he also admitted that the claimant called over the GL accounts and not the individual account. That he further admitted that the various individual credits into other customers’ accounts are called over by other officials and that it was during call over that the officers responsible for the individual accounts discover the fraud. He also admitted under cross-examination that the claimant did not authorize any of the fraudulent transactions. He admitted also that only cheques or transactions above the limits of other lower ranked officials are referred to the claimant being the Head of the Department in charge of the processing of salaries and other credit transfers. That the defendant could not lead evidence linking the claimant to any of the fraudulent transfers. Moreover, the defendant reported the claimant to EFCC as per paragraph 10 of the statement of defence. There was no evidence before the Court indicting the claimant with regard to the alleged fraudulent transfers by the EFCC or any other authority hence the claimant was not prosecuted. The claimant referred to <i>Mariam v. University of Ilorin Teaching Hospital Management Board</i> [2013] 35 NLLR (Pt. 103) at 130 – 131, where this Court held that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">When an employer issues a query against an employee for an act which was not the schedule officer and the fact that those who were actually responsible for the error are not being quarried amounts to Vindictiveness/victimization on the part of the employer.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That in the instant case, no query was even issued to the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the claimant’s submission that his dismissal by the defendant is against the provision of the Collective Agreement which has been incorporated into his employment. That the defendant had submitted that the claimant cannot rely on the said collective agreement on the grounds that the said collective agreement does not form part of the claimant’s contract of employment and that collective agreements are generally unenforceable. To the claimant, this is incorrect. That the law is that where a collective agreement has been incorporated into a contract of service whether directly or by implication, the parties will be bound by the provision thereof, referring to <i>Abalogun v. SPDC Ltd</i> [2003] LPELR-18(SC); [2003] 13 NWLR (Pt. 837) 309, <i>NNB Plc v. Solomon Owie</i> [2010] LPELR-4591(CA) and <i>Rector Kwara State Polytechnic & ors v. Adefila</i> [2015] 58 NLLR (Pt. 201) – the page is not supplied. That Exhibit C1 (the claimant’s offer of employment by defendant) in its last paragraph provides thus: “Other Conditions of service will be laid down in the Contract of Service and Collective Agreement Currently in force”. Moreover, that the defendant consistently acted on the collective agreement between the Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks Insurance and Financial Institution (ASSBIFI) in dealing with the claimant, referring to paragraph 11 of the statement of defence, a paragraph the claimant holds complies with Article 4(iii)(b) Disciplinary procedure of the Collective Agreement (Exhibit C7), which provides –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">during the period of suspension, the Employee shall, provided he complies fully with Conditions stipulated in (c) below, be paid half of his basic salary and full transport, housing and utility allowances and shall be entitled to usual medical treatment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That it was further held by the Court of Appeal in<i> Rector Kwara State Polytechnic & ors v. Adefila</i> (<i>supra</i>) that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">If parties follow a certain course of action plainly because of the existence of a Collective agreement, such as commencing to pay wages at new rates, that provision of the Collective Agreement will be considered as incorporated with the Contract of employment. This rule is in line with estoppels, the rule of evidence, which preclude a person from denying what he has either expressly or by implication admitted.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the defendant’s reliance on <i>Union Bank of Nigeria Plc </i><i>v. Emmanuel Aderewaju Soares</i> [2012] 11 NWLR (Pt. 1312) 550, the claimant submitted this cited authority is not applicable to the case at hand because the facts therein are different. That in the <i>UBN v. Emmanuel Aderewaju Soares</i>, there was no reference to any other document wherein the defendant acted in direct reference to the Collective Agreement as did in this case at hand as can be seen in the letter of suspension which complied with the provisions of the collective agreement and if there was any such document, it would have enabled the Court to reach a different conclusion as to the intention of the parties, referring to <i>Union Bank of Nigeria Plc </i><i>v. Chinyere</i> [2010] 10 NWLR (Pt. 1203) – the page is not supplied.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"> <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">More so, that the facts of <i>UBN Plc v. Emmanuel Aderewaju Soares</i> are different in that in that case, the claimant removed himself from the membership of the recognized Association covered by the Collective Agreement, citing and relying on the dissenting judgment of Mohammed Ambi-Usi Danjuma in the same <i>UBN Plc v. Emmanuel Aderewaju Soares</i>. The claimant referred to the International labour Convention (ILO) Recommendation 1951 paragraph 3 sub-paragraphs (1) and (2), which provides that – <o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo15"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Collective agreements should bind the signatories thereto and those whose behalf the agreement is concluded. Employers and workers bound by a collective agreement should not be able to conclude in contracts of employment stipulations contrary to those contained in the collective agreement.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo15"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Stipulations in such contracts of employment which are contrary to a collective agreement should be regarded as null and void and automatically replaced by the corresponding stipulations of the collective agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That it must be emphasis that the provisions of the collective agreement relied upon by the claimant contain provisions which accord with natural justice as far as fair hearing is concerned. The claimant then referred to <i>Alhaji M. K v. First Bank of Nigeria Plc & anor</i> [2011] LPELR-8971(CA) page 66.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is also the claimant’s submission that the argument of the defendant that the defendant was not a party to the collective agreement and that the claimant did not show evidence of membership of the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) is misleading. That in paragraph 17 [of what?] the claimant pleaded his pay-slip (Exhibit C5), which shows payment of Nl,040.00 as union dues to (ASSIBIFIE). That evidence of deductions of union dues is an incidence of membership, praying the Court to so hold and relying on <i>Aghata N. Onuorah v. Access Bank Plc</i> [2015] 55 NLLR (Pt. 186) 17 at 32, where this Court said –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Membership of a trade union carries with it benefits and burden. One such burden is the payment of cheque-off dues. The deduction from salaries and wages as cheque off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker ....<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"> <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimant submitted that the purported dismissal of the claimant by the defendant is in breach of the provisions of section 36 of the 1999 Constitution 1999 (as amended) and the collective agreement as the claimant’s right to fair hearing was obviously breached, praying the Court to resolve this issue in favour of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue b) i.e. whether the dismissal of the claimant from the defendant’s employment without fair hearing accords with international best practice, the claimant referred to 7(6) of the NIC Act 2006, which enjoins this Court to have regard to international best practice in labour and industrial relations matters. To the claimant, this section was indubitably inserted to promote justice, equity and fair play in labour and industrial relations matters and put the country and the National Industrial Court on the same pedestal with other courts in the civilized world in the field of industrial relations and labour matters. In this respect, the claimant referred to the ILO Termination of Employment Recommendation 1963 paragraph 10(5), which provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Before a decision to dismiss a worker for serious misconduct becomes finally effective, the worker should be given an opportunity to state his case promptly with the assistance where appropriate of a person representing him.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That ILO Termination of Employment Recommendation 1963 section 1 provides: “The provision of this Recommendation may be applied by national laws or regulations, Collective Agreements, work rules, arbitration awards or court decisions or in such other manner consistent appropriate under national conditions”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that this Court has held on the status of the ILO Convention and recommendations in <i>Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc</i> [2015] 59 NLLR (Pt. 119) 92 at 105, when it said –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">By virtue of section 254C(1)(f) and (h) of this Constitution as amended, the National Industrial court has the power to apply international best practice and international labour standard. In other words, by the provisions of section 254C(1)(f) and (h) of 1999 Constitution, as amended, this Court can now move away from the harsh and rigid common law posture of allowing an employer to terminate its employee for bad or no reason at all.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Also referred to this Court is <i>Duru v. Skye Bank Plc</i> [2015] 59 NLLR (Pt. 59) at 724 – 726, where this upheld the Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166, which requires that the employment of an employee shall not be terminated unless there is a valid reason for such termination connected with his capacity or conduct or based on the operational requirement of the undertaking, establishment or service; as such it represents international best practice as far as termination of employment is concerned, which this Court can apply in virtue of section 254C(1)(f) and (h) of 1999 Constitution, as amended – the justification being that this Court can on that basis now move away from the harsh and rigid common law posture of allowing employer to dismiss its employee for bad or no reason at all.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant then, the argument of the defendant that it substantially complied with ILO Recommendation article 119(5) is unsubstantiated in that there is no evidence of such compliance before this Court. That the claimant was never confronted with the allegation against him neither was he given an opportunity to defend himself as required under the ILO Recommendation, praying the Court to so hold. In conclusion on this point, the claimant submitted that his dismissal by the defendant without giving him query and an opportunity to defend himself does not accord with international best practice, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant took up issues c) and d) together. Issue c) is whether the claimant, who was unlawfully and wrongfully dismissed on 24<sup>th</sup> October 2013, still has a subsisting and unbroken employment and, therefore, is entitled to all the reliefs claimed in this suit including all salaries and allowances due to him from the date of the wrongful dismissal to the date of judgment. Issue d) is whether the claimant is entitled to all reliefs claimed in this suit including the relief of payment of gratuity under the defendant’s Pension Trust Deed. It is the claimant’s submission that his employment is still subsisting and unbroken, the purported dismissal having been done contrary to the rule of fair hearing as enshrined in the Constitution, international best practice and the collective agreement and, therefore, null and void and of no effect. That he is entitled to be paid all his entitlements from the date of the purported dismissal to the date of judgment and all reliefs claimed in this suit, praying the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then referred to two case law authorities: <i>Osinsaya v. Afribank Plc</i> [2011] 24 NLLR PT page 46 (improper citation), which held that: “in a claim for unlawful dismissal, measure of damages is <i>prima facie</i> the amount that the plaintiff would have earned had the employment continued according to contract”; and <i>Ngboye v. Obat Oil and Petroleum Limited</i> (<i>supra</i>) at page 266, which held that: “Where a court makes a finding that a dismissal or termination of a is null and void, there is no dismissal or termination. In such a case, the appointment of the employee should be regarded as unbroken, confirming from the period prior to the purported termination till the date of judgment”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, he stated in paragraphs 27 and 28 of his witness statement on oath that he was on monthly salary of N504,000.00 (Five Hundred and Four Thousand Naira only) before his wrongful dismissal and that since the unlawful and wrongful dismissal on 24<sup>th</sup> October 2013, he had not been paid his monthly salary. That on the strength of the above stated authorities, upon a finding that the purported dismissal was wrongful, null and void, he is entitled to all his reliefs in this suit including all salaries and emoluments due to him from the date of the purported dismissal to the date of judgment, praying the Court to so hold. The claimant then referred to <i>Peter Omokaro v. Union Bank of Nigeria Plc</i> [2013] 30 NLLR (Pt. 86) 215, where the Court ordered the recall of the claimant and the payment to him of his outstanding salaries, allowances and other entitlements.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that the defendant submitted that under common law, this Court upon a finding that the purported dismissal of the claimant is wrongful and unlawful and, therefore, null and void cannot make an order reinstating the claimant and paying all salaries and allowances due to him from the date of purported dismissal to the date of judgment. That the defendant in making this assertion relied on the cases of <i>Afribank (Nig.) Plc v. Osisanya</i> [2000] l NWLR (Pt. 642) 599, <i>Isheno v. Julius Berger (Nig) Plc</i> [2008] 6 NWLR (Pt. l084) 582 and <i>Rivers Vegetable Oil Company Ltd v. Egukola</i> [2009] LPELR-8379. To the claimant, these authorities do not represent the current stand of the courts especially the National Industrial Court which is enjoin to adopt international best practice on labour matters. That the current and correct position is that where there is a finding by the Court that the dismissal or termination of an employee’s employment was wrongful and, therefore, null and void as in this case, the Court do and have ordered reinstatement and payment of all salaries and emoluments to the employee, referring to<i> Peter Omokaro v. Union Bank of Nigeria Plc</i> (<i>supra</i>), <i>Osinsaya v. Afribank Plc</i> (<i>supra</i>), <i>Ngboye v. Obat Oil and Petroleum Limited</i> (<i>supra</i>) and <i>Ogunjobi v. Emzor Pharmaceutical Industries Limited</i> [2015] 58 NLLR (Pt. 202) 583 at 623. It is the claimant’s submission that the Court has power to order reinstatement and payment of the claimant’s salaries and other allowances due to claimant from the date of dismissal to the date of judgment once there is a finding that the purported dismissal is unlawful, wrongful and, therefore, null and void, praying the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is also submission of the claimant that he is entitled to be paid the sum of N5,205,000.00 (Five Million, Two Hundred and Five Thousand Naira only) upon a finding by this Court that the dismissal of the claimant was wrongful. To the claimant, the fact of his entitlement to the above sum was well pleaded in paragraph 29 and 31 of his statement of facts and witness statement on oath respectively and the above facts and evidence were never controverted. Moreover, that upon a finding that the dismissal was null and void, the claimant is entitled to the said sum, referring <i>Shadrack Iheanacho Duru v. Skye Bank Plc</i> (<i>supra</i>) at page 733 where the court after a finding that the dismissal of the claimant was wrongful awarded salaries due to the employee for the period of suspension.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the dismissal of a bank employee carries with it serious disability and repercussion. That section 44 (4) of the Banks and other Financial Institutions Act 1999 (as amended) provides thus: “Any person whose appointment with a bank has been terminated or who has been dismissed for reasons of fraud, dishonesty or convicted for an offence involving dishonesty or fraud shall not be employed by any bank in Nigeria”. And section 4(7) provides that: “It shall not be a defence for any director, manager or officer of a bank to claim that he is not aware of the provisions of sub-section (4) of this section, except he can prove that he had obtained prior clearance of such a person form the Secretary of the Bankers’ Committee who maintains a register of terminated, dismissed or convicted staff of banks on the ground of fraud or dishonesty”. That in <i>Duru v. Skye Bank Plc</i> [2015] 59 NLLR (Pt. 59) at 722 – 723, it was held that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">To dismiss the employment of an employee connotes that the employee did something(s) terribly wrong or that he committed serious offence(s) or serious misconduct. Therefore his chance of securing alternative employment is extremely difficult because no responsible employer will be interested in employing anybody with such bad or shady record from his/her previous employment. In addition, the dismissed employee forfeits his terminal benefits and gratuity regardless of his position or the number of years he had worked with his employer. Consequently, if employers are allowed to dismiss without reason, it becomes an indefensible basis for the employer to easily discard their employees, especially those with many years in service without paying their terminal benefits and gratuity.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">In addition, the career of many people will be ruined unnecessary to me, these loses are too harsh to be inflicted for no reason at all because Banking sectors of the economy in particular is a very sensitive sector in which such dismissed employee cannot secure another employment again.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that he served the defendant in various capacity meritoriously for 32 years and he is here by the unfair dismissal of the defendant, which if allowed will deny him the hope of retirement benefits and the hope of securing another employment. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that assuming that this Court, upon a finding that the purported dismissal of the claimant is wrongful, null and void, refuses to order a reinstatement on the premise that the Court cannot compel “a willing horse and an unwilling horse”, this Court can proceed to determine the employment relationship between the claimant and the defendant from the date of judgment thereby entitling the claimant to gratuity payment by the defendant, relying on <i>James Okpeta v. Nigerdock Nigeria Plc</i> [2013] 30 NLLR (Pt. 86) 304 at 333 – 334. That the claimant in paragraphs 30 and 32 of his statement of facts and witness statement on oath respectively stated and particularized his entitlements as to his gratuity and further tendered the defendant Bank’s Trust Deed Guiding Payment of Gratuity and Pension (Exhibit C11) which was admitted in evidence and these facts were not denied by the defendant, urging the Court to so hold that the claimant is entitled to payment of gratuity upon a finding that the claimant’s dismissal is wrongful.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant proceeded to submit that the argument of the defence counsel is ill-conceived and show lack of appreciation and understanding of the Pension Reform Act 2004 and the Pension Reform Act 2014. That the Pension Reform Act 2004 and Pension Reform Act 2014 did not abolish payment of gratuity. That gratuity falls under other benefits which is preserved and protected under “section 117(3) (a Pension Reform Act 2014)” which provides:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Without prejudice to the provisions of section 6 of the interpretation Act, the repeal of the enactments specified in subsections (1) and (2) of this section shall not affect –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(a) Any additional fringe benefits enjoyable upon retirement by any person before the commencement of this Act except as provided by this Act...<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That a similar provision existed under the repealed section 99(3) of the “Pension Reform Act 2004”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On whether the provisions of the Pension Reform Act 2004 forbid an employer from providing additional benefits to workers, the claimant contended that this Court in <i>Durugbor v. Zenith Bank Plc</i> [2014] 40 NLLR (Pt. 122) 287 declared –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Now on the argument of the Defence that the Pension Reform Act nullifies the scheme provided by Articles 17:7 – 17:10 of the Defendant’s Handbook as its continuance will amount to giving the employees double benefits while obliging the defendant to suffer double jeopardy, I have combed through the provisions of the Pension Reform Act, 2004, and neither has the defendant shown that it has cancelled the entitlements in issue by issuing a memo or circular to its staff showing that it has been cancelled or presenting any evidence to show that it notified its employees that they shall earn only the entitlement allowable under the Pension Reform Act, 2004. Equally counsel has not shown to me the particular provision of the Pension Reform Act that would be breached if this benefit is paid.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in <i>Ekenzor v. Union Bank of Nigeria Plc</i> [2014] 42 NLLR (Pt. 133) 792, the Court declared that the Deed of Variation Trust Deed 1996 is an existing Pension Scheme and held thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">There was no proof before the Court that the defendant is not a closed Pension Fund Administrator neither is there any proof that the defendant has transited from it existing scheme to the contributory scheme established under section 1 of the Pension Reform Act, 2004. By the above provision, the Court found that the defendant’s Deed of Variation of Trust Deed 1996 is an existing Pension Scheme having been in existence before the enactment of the Pension Reform Act, 2004. It is therefore held that the Deed of Variation of Trust Deed 1996 continued to exist and applicable to the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that the argument of the defendant to the effect that claimant did not plead any evidence to show that he was 45 years of age is a weak one. That the Union Bank of Nigeria Plc Pension and Gratuity Scheme (Exhibit C11) Rule 7(a) provides the qualifying period of receipt of benefits under the scheme shall be ten years payable only upon retirement or cessation of employment. That this position was affirmed in <i>Ezeh v. Union Bank of Nigeria Plc</i> [2015] 61 NLLR. That by Rule 3 of the Schedule to the Trust Deed, the claimant is eligible to pension. Rule 7(a) provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The qualifying period of receipt of benefits under the scheme shall be ten continuous years: service from the date of engagement, but payable only upon retirement or cessation of employment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is then the claimant’s submission on this point that this Court has power upon a finding that the dismissal of the claimant by the defendant from its employment was wrongful to determine the relationship between the claimant and defendant and order payments of all salaries, allowances and emoluments due to the claimant from the date of dismissal to the date of judgment including payment of gratuity due to the claimant upon a completion of his services with the defendant, praying the Court to so hold. In conclusion, the claimant urged the Court to grant the reliefs he claims. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE DEFENDANT’S REPLY ON POINTS OF LAW<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">In reacting on points of law, the defendant started off with the claimant’s issue a). Here, the defendant first reiterated that Exhibit C4, (the suspension letter), suffices as query, referring to <i>Emir of Kano State v. Agundi</i> [2006] 2 NWLR (Pt. 965) 572. It the submitted that the essence of a query is to put the claimant on notice of the alleged offence against him and to prepare for his defence in that respect. That it is not the heading of a document that matters but the content. That the contents of Exhibit C4 are clear and unambiguous and that the Court is to interpret the letter in the literary meaning as they were written, referring to <i>NDIC v. Okem Enterprises Ltd</i> [2004] 10 NWLR (Pt. 880) 107; <i>NDIC v. Bello Nig. Ltd</i> [2001] All FWLR (Pt. 336) 40. That where the intention of the writer is clear and unambiguous, no extraneous meaning will be allowed to be read into it, citing <i>Global Excellence Communication Ltd v. Duke</i> [2007] 7 SC (Pt. II) 162. To the defendant then, Exhibit C4 stated in clear terms the offence alleged against the claimant, that same is under investigation and that in the meantime, he was placed under suspension. That a query does not have to necessarily invite the claimant to answer to the alleged commission of offence before it suffices for a query.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that the law is that the claimant must be given opportunity to defend himself before the defendant can take any decision that affected him and that is the purport of the right to fair hearing as enshrined in section 36 of the 1999 Constitution 1999 (as amended), citing <i>Imonike v. Unity Bank Plc</i> [2011] LPELR-1503(SC). That in this case, apart from the Exhibit C4 served on the claimant and which he acknowledged, the defendant further invited the claimant to defend himself in the matter, referring to paragraph 12 of the statement of facts and paragraph 14 of the witness statement on oath of the claimant. That even during cross-examination of the claimant, the claimant admitted that he answered to the questions directed to him by internal auditors from the defendant’s Head office at the branch level, referring to Exhibit D3 headed as query issued to the claimant and the claimant’s response in the defendant’s list of documents to be relied upon. To the defendant, the claimant did not deny the exhibit. It is submitted that wherever the exhibit was made by the claimant as long as the claimant has not denied it, it is his response to the allegation against him, refer to the said Exhibit D3. It is, therefore the defendant’s submission that the claimant’s counsel’s contrary submissions are not only wrong but misleading and should be discountenanced. That Exhibit D3 was not only pleaded by the defendant, the said Exhibit D3 was frontloaded as part of the documents to be relied upon by the defendant during trial, referring to averment contained in paragraph 14(ii) of the statement of defence and the list of documents filed in the suit. More so, that the said document is relevant to the determination of the suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that it does not matter what a counsel tagged a document; it is the duty of the Court to interpret the contents of such document. That the claimant has made heavy weather of what counsel called Exhibit D3 as a query or question and answer; nonetheless, it does not detract from the content and purpose of such document. That Exhibit D3 is the written answer to the question posed to him by the defendant’s internal auditor, which the claimant admitted. That Exhibit D3 has a date endorsed on it and was signed by the claimant as the maker of the said document. That the claimant appended his signature on each answer he made in response to the question directed to him on each page of Exhibit D3; as such Exhibit D3 is not only admissible but must be evaluated positively by the Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that there was no criminal matter pending in any court as at the time the defendant dismissed the claimant. Hence, <i>Ngboye v. Obat Oil and Petroleum Limited</i> cited by the claimant’s counsel is not relevant to the suit and should be rejected alongside the submission premised on it. That contrary to the claimant’s submissions that the defendant has not proved that the claimant was involved in the fraud that led to his termination alongside others, counsel is not to fabricate fact but rather to rely on fact before the Court. That it is not mandatory that the defendant must prosecute the claimant in a court of law before dismissing him for gross misconduct of as it had done.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Further submitted by the defendant is that <i>Mariam v. University of Ilorin Teaching Hospital Management Board</i> cited by the claimant’s counsel is not relevant to the claimant’s suit as the claimant was queried alongside others. Hence, there is no case of vindictiveness/victimization on the part of the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then reiterated that the claimant cannot rely on the collective agreement as same is not incorporated into his contract of service agreement. That the Court should accordingly discountenance all the submissions of the claimant in that regard.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In concluding this issue, the defendant submitted that the claimant has failed to show that he was not afforded the opportunity to defend himself before he was dismissed by the defendant. Rather the defendant has shown by its pleading and evidence that the claimant was accorded his fundamental right as enshrined in section 36 of the 1999 Constitution (as amended), particularly, the right to fair hearing, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In reacting to the claimant’s issue b), the defendant adopted its submissions under issue 1 as formulated by the defendant in its final written address and the submissions made above in its reply on points of law. It is the defendant’s submission that the defendant issued a query on the claimant (referring to Exhibit C3). That the claimant was given the opportunity to defend himself in respect of the allegation against him and he actually did; and that the claimant was dismissed based on valid reason. That where an employee was involved in fraud, it amounts to a gross misconduct and the employer was entitled to dismiss such errant employee, as in this case. That the dismissal of the claimant was in accordance with international best practice as the defendant complied with its requirement, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for the claimant’s issues c) and d), the defendant submitted that cases are decided based on their peculiar facts. Hence, the cases cited and relied upon by the claimant’s counsel are either misquoted or quoted out of contest and they are not relevant to the present suit. The defendant reiterated its earlier submission that the claimant had ceased to be in the employment of the defendant from the date of his dismissal and is not entitled to salaries and entitlement as being claimed. That <i>Ngboye v. Obat Oil Petroleum Ltd</i> and <i>Peter Omokaro v. Union Bank of Nigeria Plc</i> are not applicable in the circumstances of the instant suit, urging the Court to discountenance the claimant’s submissions. That the claimant is not entitled to an order of reinstatement as it will negate the long established rule that the Court cannot impose an employee on an unwilling employer. That the claimant cannot receive salaries for the period he did not work for.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that the Deed of Variation of Trust Deed 1996 created a trust. The defendant is a mere settler; there are trustees who are empowered to execute the trust and they are responsible for payment of gratuity to the claimant if the claimant is qualified for same under the deed. That there is no evidence before the Court that the claimant has approached the Trustee and demanded for payment of his gratuity and the trustee has refused to pay. Furthermore, that the claimant did not join the Trustee in this suit. That by the reason of the trust created in the Deed of Variation of Trust Deed 1996, the defendant has nothing to do with payment of gratuity. The only recognised person under the Deed of variation of Trust Deed as responsible for the payment of gratuity for the retired staff of the defendant is the Trustee created therein. That the defendant is not responsible for payment of gratuity under deed and will not be ordered by this Court to usurp the functions of the trustee as created in the Deed. That failure of the claimant to join the Trustees of the Deed of Variation of Trust Deed 1996 is fatal to his case and robs the Court of jurisdiction to entertain the relief for payment of gratuity under the Deed of Variation of Trust Deed 1996, referring to <i>Abia State Independent Electoral Commission v. Kanu & ors</i> [2008] LPELR-3564(CA), <i>Awuse v. Odili</i> [2004] 8 NWLR (Pt. 876) 481 and <i>Tafida v. Bafarawa</i> [1999] 4 NWLR (Pt. 597) 70. In conclusion, the defendant submitted that the claimant is not entitled to all the reliefs being sought in his statement of facts, urging the Court to dismiss the suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. In considering the merit of this case, I must make a preliminary remark or two. The first relates to how the defendant couched its issues 2, 3, 4, 5 and 6 for the determination of this Court. I will take just an example of the issues, issue 3. It states: whether the defendant cannot be compelled to re-absorb the claimant in the circumstances? For a party who is opposing all the averments and the case of the claimant, the manner this issue and the others listed are couched suggests that the defendant expects and is arguing for a positive answer. More appropriately, the defendant ought to have couched the issue as follows: “whether the defendant can be compelled to re-absorb the claimant in the circumstances. It is the claimant who can couch the issue as: “whether the defendant cannot be compelled to re-absorb the claimant in the circumstances”. There is accordingly an element of inelegance on the part of the defendant in couching the said issues.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The second remark relates to the defendant’s reply on points of law settled by Opeyemi Usiola, Esq. For one, if counsel does not have anything to state, it is better to simply keep quite. This thing about submitting that “the cases cited and relied upon by the Claimant’s counsel are either misquoted or quoted out of contest and they are not relevant to the present suit”, without stating how, as did the defendant’s counsel in paragraph 3.01 of its reply on points of law, is a very poor form of advocacy. Additionally, this thing about using the reply on points of law as an expedient for bringing in new issues not earlier canvassed or simply reiterating arguments already made is uncalled for. In reacting to the claimant’s issues c) and d), the defendant made submissions as to the claimant not suing the trustees of the trust deed in question, which thus robs this Court of jurisdiction to hear the issue and the claimant not approaching the trustees of the trust deed for payment. All of these issues are raised for the first time in a reply on points of law, when the defendant knows that the claimant has no right of reaction. This is bad advocacy and must be denounced by this Court. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The third remark is the penchant of counsel trying to win cases at all cost, citing cases either wrongly or out of context or out-rightly falsifying what the holding or ratio of a case is. I have to put it this way, for there is no other way I can make the point. Counsel to the defendant had argued that the letter of suspension it gave to the claimant suffices as query. To support this contention, counsel to the defendant, Opeyemi Usiola, Esq. cited <i>Emir of Kano State v. Agundi</i> [2006] 2 NWLR (Pt. 965) 572 as holding that a letter of suspension, which states the allegation against a person, is sufficient as query. Even when the claimant in his reaction written address argued that this case has been cited out of context and so is inapplicable, counsel to the defendant in his reply on points of law repeated the submission, citing <i>Emir of Kano State v. Agundi</i>, “that Exhibit C4 (the suspension letter), suffices as query”. I read through this case. In the first place, an indication to the fact that counsel to the defendant does not really know what he is doing is in citing the case as <i>Emir of Kano State</i> instead of the more appropriate <i>Emir of Kano</i>. His Royal Highness, (Alhaji (Dr) Ado Bayero), suing as the 1<sup>st</sup> appellant in the case, was Emir of Kano, not Kano State.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the second place, as outlined by the claimant, the case was an appeal against the refusal of the High Court of Kano State to stay proceedings pending an appeal against an interlocutory injunction. In hearing this appeal, an objection was raised which was also considered. In short, the substantive issue has not even been decided. There is nothing in this case approximating to what counsel to the defendant said was held in it. I do not know where counsel to the defendant got it that the case held that a letter of suspension, which states the allegation against a person, is sufficient as a query. In citing the case in the final written address, as well as in reiterating the point and again citing the case in the reply on points of law, counsel to the defendant did not even indicate the page of the law report where the holding was allegedly made. I see this an attempt to mislead; all in the name of advocacy? A fabrication, I dare say a deliberate one, (the counsel to the defendant talked of fabrication in paragraph 1.14 of his reply on points of law) such as this sure does legal practice and advocacy no good.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant is not without his share of the blame. Referring to <i>Ngboye v. Obat Oil and Petroleum Limited</i> [2011] 25 NLLR (Pt. 21) at 265 – 266, the claimant had cited this Court as stating as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Where there is allegation of crime against an employee such allegation must be proved before the dismissal can stand. The Court stated that where the dismissal is made before the outcome of a criminal charge relating to the alleged crime, such dismissal will have two effects namely…<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The problem here is that this Court was stating what <i>John Anakism v. UBN Ltd</i> [1994] 1 NWLR (Pt. 322) 557 held. Incidentally, what <i>John Anakism v. UBN Ltd</i> stated and the context in which it was stated can no longer be said to represent the law given that today an employer need not await conviction in a criminal allegation before determining the employment of an employee. See <i>Arinze v. FBN Ltd</i> [2004] 12 NWLR (Pt. 888) 663 SC, <i>Olarenwaju v. Afribank (Nig.) Plc</i> [2001] 13 NWLR (Pt. 731) 691 SC, <i>Egbe v. NUT</i> [2008] 5 NWLR (Pt. 1081) 604 CA, <i>ATA Poly v. Maina</i> [2005] 10 NWLR (Pt. 934) 487 CA, <i>UBN v. Chinyere</i> [2010] 10 NWLR (Pt. 1203) 453 CA, <i>AG, Kwara State v. Ojulari</i> [2007] 1 NWLR (Pt. 1016) 551 CA and <i>Jubril v. Mil. Admin., Kwara State</i> [2007] 3 NWLR (Pt. 1021) 357 CA. <i>John Anakism v. UBN Ltd</i> accordingly represents the old dispensation; and it is surprising that the claimant did not recognize this fact in making his submission.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As if this was not enough, counsel to the claimant in paragraph 1.45 of his written address relied on and quoted the dissenting judgment of His Lordship Mohammed Ambi-Usi Danjuma, JCA in <i>UBN Plc v. Emmanuel Aderewaju Soares</i> [2012] 11 NWLR (Pt. 1312) 550. I do not know where counsel got his learning from indicating that a dissenting opinion is a ratio that can be cited and relied on. This Court is a trial court enjoined to apply the ratio of cases, not dissenting opinions. Only a superior court can overturn a majority decision and adopt a dissenting opinion of a lower court as the law. This is elementary learning, which counsel should know.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">These remarks made, I now turn to the issue of the admissibility of Exhibit D3, which the claimant objected to. Exhibit D3 is said to consist of the question and answer session the Auditor that came to the claimant’s branch had with the claimant. To the claimant, Exhibit D3 was never pleaded in evidence but the defendant insisted that the said exhibit was what it referred to as query in its pleading, hence the basis upon which Exhibit D3 was admitted in evidence. The claimant relied on the pleadings before the Court and the defendant’s list of documents; and then submitted that a document not pleaded goes to no issue and that reference to a pleaded document as another document not pleaded is not tantamount to pleading, citing <i>Oyediran v. Alebiosu II</i> [1992] NWLR (Pt. 249) 550; [1992] LPELR-2868(SC). This case, even as quoted by the claimant, actually put the law thus: “…it is settled law that reference in a pleaded document to another document which is itself not pleaded, is not tantamount to pleading that other document…” Are the statements, “reference to a pleaded document as another document not pleaded” (the claimant’s) and “reference in a pleaded document to another document which is itself not pleaded” (the Supreme Court’s), necessarily the same? I do not think so. However, the essence of the claimant’s submission is simply that one document cannot be said to be another if it is not. It cannot even be said to provide for that other if this is just not the case; and if we then take <i>Oyediran v. Alebiosu II</i>, it becomes that a document referred to in another must be specifically pleaded in its own right before it can be of any evidential value. In other words, there is nothing like derivative pleading regarding documents.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant also submitted that Exhibit D3 has no evidential value given that a question and answer session with audit as it is in this case cannot constitute query but could only form the basis upon which a query could be issued, relying on <i>Salami v. Union Bank of Nigeria Plc</i> [2010] LPELR-8975(CA). In any event, that Exhibit D3 does not have an author, was not signed or dated; as such it was inadmissible. The defendant in reaction argued that Exhibit D3 shows the claimant to be the author and has his signature against each answer given to the questions. I took a careful look at Exhibit D3. I agree with the defendant that the claimant is the author. It has his name on it. Exhibit D3 is in three parts. The first two parts have the questions in the left side column with the answers in the right side column; while the third part has no columns and the questions are simply asked first on top with the answers given immediately below the question asked. Each part is, however, preceded with a recital of the name and other details of the claimant. The first two parts of Exhibit D3 are not dated. It is the third part that is dated i.e. 14/8/12. There is no evidence before the Court that the three parts of Exhibit D3 were made the same day as to have the date on the third part avail the first two parts. With this, only the third part can be said to be dated, the first two parts are not; and I so find and hold. The law is that an undated document is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date when it was intended to operate. See <i>Aremu v. Chukwu</i> [2011] LPELR-3862(CA), <i>Global Soaps & Detergent Ind. Ltd v. NAFDAC</i> [2011] All FWLR (Pt. 599) 1025 at 1047 and <i>Udo & ors v. Essien & ors</i> [2014] LPELR-22684(CA). There is no parole evidence before the Court as to the date of Exhibit D3. On the basis of these authorities, therefore, the first two parts of Exhibit D3 are invalid and unenforceable i.e. they have no evidential value.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">There is the other limb of the argument against the admissibility of Exhibit D3. In the list of documents, what is listed as document number 3 is “Query issued to the Claimant and the Claimant’s response”. It is on the basis of this listing that the defendant argued that Exhibit D3 be admitted. In other words, that Exhibit D3, consisting simply of set questions and the answers of the claimant to the questions, is the query the defendant issued to the claimant. In consisting of questions and answers, Exhibit D3 approximates more to a questionnaire. A query in labour/employment law is a formal (written) request to an employee demanding an explanation, and thereby defending himself/herself, for allegations that may be leveled against him/her.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In <i>Koomlong I. Miaphen v. University of Jos Consultancy Limited</i> [2013] LPELR-21904(CA), the issue of what a query is arose. A letter (Exhibit E) had been written to the appellant wherein a number of monetary infractions said to have been committed by the appellant were listed out. The letter ended as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">…The Board would like to know how this happened.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">In consequence of above, the Board has approved that you account fully for these amounts, not later than January 29, 1998.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The question was whether this letter (Exhibit E) was a query. The Court of Appeal first referred to the definition of the word <a name="73882">“</a>query” as given in <i>The Webster’s Dictionary of the English Language</i>, Dulux Edition, by J. G. Ferguson at page 794, which is: “To inquire into, to ask about, to ask questions of, to interrogate, to express doubt concerning the correctness or truth of, to have or express doubts...” The Court of Appeal then proceeded to hold as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">If the definition of the word ‘query’ supra, is related to the contents of Exhibit ‘E’, especially paragraphs 2, 3, 4 and 5 thereof; it would be seen that the appellant was asked to explain or account for the expenditure of various sums to money. <a name="73883">When an officer is about to be disciplined by his employer, it is normal or usual to ask such officer to explain certain things before any decision is taken. This procedure or process is often referred to as query. In A.G. Kwara State v. Abolaji (2009) 7 NWLR Pt. 1139 p. 199 @ 212 this court held that an officer about to be disciplined is first given a query to explain certain things in writing. It is a query that precedes the setting in motion the procedure for disciplinary action. See also Iderima vs. Rivers State C.S.C. (2005) 16 NWLR Pt. 951 P. 378.</a>The learned trial Judge was therefore on a formidable ground when he held on page 70 of the record of appeal that Exhibit ‘E’ sufficiently amount to querying the appellant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Can the questionnaire, which is what Exhibit D3 is, be said to be in the mold of Exhibit E considered in <i>Koomlong I. Miaphen v. University of Jos Consultancy Limited</i>? I really do not think so. Except for a question at the fourth page of the first part of Exhibit D3, which accused the claimant of shying away from authorization, the questions in Exhibit D3 were merely seeking for information from the claimant. The questions did not accuse the claimant of anything and for which he needed to explain or defend himself. The defendant in its defence accused the claimant of involvement in the series of fraud transactions that took place under his nose as the Branch Head of Operations. Exhibit D3 did not make any accusation in this regard. It is accordingly my finding and holding that Exhibit D3 is not a query, and so cannot be said to evidence a query issued to the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I alluded earlier to the defendant’s submission that Exhibit C4, its letter of suspension to the claimant, sufficed as query, but only in terms of having to cite and rely on <i>Emir of Kano State v. Agundi</i> when the case said nothing of the proposition of law that the defendant advanced. The issue of wrongly citing a case aside, I need to consider the submission of the defendant on its merit. In other words, I need to answer the question whether Exhibit C4 suffices as a query. Exhibit C4 states as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">We advise that you have been placed on Suspension from duty with effect from 26<sup>th</sup> September, 2012 for your alleged involvement in fraudulent activities currently under investigation at Mission Road Branch.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">While on suspension, you should call in the office every morning (8.00am) to sign the attendance register until the determination of the case.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Please acknowledge receipt.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">From the wordings of Exhibit C4, the claimant was not asked to explain or defend himself on anything. Exhibit C4 simply placed the claimant on suspension for his “alleged involvement in fraudulent activities currently under investigation”. The only thing Exhibit C4 required of the claimant was to report in the office every morning to sign the register until the determination of the case. This cannot amount to a query; and I so find and hold. Since neither Exhibit D3 nor Exhibit C4 is a query, it means that the defendant did not issue any query to the claimant, and this remains so despite DW saying in paragraph 16(i) of his sworn deposition that “the claimant was issued with query to explain his role and cause of the series of frauds perpetrated in the branch where he was Head of Banking Operation”; and I so find and hold. See also paragraph 19 of DW’s sworn deposition. There is no evidence before the Court that any query was issued to the claimant by the defendant; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Exhibit C6 is the letter of dismissal. It is dated 24<sup>th</sup> October 2013 and stipulates that the claimant is dismissed from the services of the bank with effect from 25<sup>th</sup> October 2013 for gross misconduct. Exhibit C6 did not state the nature of the gross misconduct. However, paragraphs 7 – 10, 15 and 16 of the sworn deposition of DW indicates that the dismissal of the claimant was for fraud. The law is that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See <i>Mr. Kunle Osisanya v. Afribank Nigeria Plc</i> [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317, <i>SPDC Ltd v. Olarewaju</i> [2008]<b> </b>LPELR-3046(SC); [2008] 12 SC (Pt. III) 27 and <i>Angel Shipping & Dyeing Ltd v. Ajah</i> [2000] 13 NWLR (Pt. 685) 551 CA. The case of the claimant, however, is not that the defendant did not justify the reason for dismissing him, but that his dismissal was done without due process. See relief a). And the absence of due process alluded to by the claimant is that he was not given fair hearing. I held earlier that contrary to the submission of the defendant, there is no evidence before the Court that any query was issued to the claimant by the defendant. In <i>Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors</i> unreported Suit No. NICN/LA/40/2012 the judgment of which delivered on 7<sup>th</sup> April 2016, the fact of the finding by this Court that no query was issued to the employee in question before being summarily dismissed authenticated the lack of fair hearing to the employee by the defendants. This Court went on to hold that t<span lang="EN-GB">he fair hearing requirement does not insist on oral testimonies so long as the employee had the opportunity to explain himself/herself by way of a query and reply, referring to </span><i>New Nigeria Bank Ltd v. G. O. Oniovosa</i> [1995] 9 NWLR (Pt. 419) 327, <i>Isong Udofia v. Industrial Training Governing Council</i> [2001] 4 NWLR (Pt. 703) 281 and <i>Imonikhe v. Unity Bank Plc</i> [2011] 12 NWLR (Pt. 1262) 624 SC. <i>Imonikhe</i> actually talked of a query being issued the employee, a written answer given by the employee and the decision to dismiss taken in order to validate the issue of fair hearing. The common feature running through all the cases is that the exact nature of the infraction(s) which the employee is expected to answer to must be disclosed to the employee. In the instant case, no query was issued to the claimant; as such the claimant was not asked to explain or defend himself against the fraud he was said to be involved in. This being the case, fair hearing was not thereby given to the claimant; and I so find and hold. This means that the dismissal of the claimant was done without due process. The dismissal is according wrongful; and I so find and hold. In this sense, relief a) prayed for by the claimant is grantable but only to the extent that the dismissal is wrongful, not unlawful; I so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I need to point out that in <i>SPDC Ltd v. Olarewaju</i> [2008]<b> </b>LPELR-3046(SC); [2008] 12 SC (Pt. III) 27, it was held <a name="14877">that “the employee who was dismissed or otherwise punished for gross misconduct need not prove that the proceedings of the domestic panel that investigated him were indeed prejudicial to him, it is sufficient that it might. The risk of any prejudice is enough”.</a> And in <i>Olabode Adewunmi v. Nigerian Eagle Flour Mills</i> [2014] LPELR-22557(CA), Dongban- Mensem, JCA delivering the lead judgment had this to say –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The management held a hide and seek inquisition from which a few facts were extracted and flung at the Appellant with executive fiat demanding replies. The Appellant obediently responded to the letters sent to him. <a name="78491">The case of<u> Adingun & ors v. A.G. Oyo State & Ors (1987) 1 NWLR (pt.53) 678 @ 758</u> clearly held that the rules of natural justice must be observed in an administrative enquiry. Such was not done in the proceedings leading up to the dismissal of the Appellant. A procedure where an accuser is shielded from the accused all through the inquiry is certainly not one in compliance with natural justice. Presence and direct confrontation has a lot of impact and produce different results from a one sided inquisition by an executive of his subordinate</a>.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">In the instant case, the claimant was given a questionnaire (Exhibit D3) which merely sought for some information from the claimant. The next thing was that he was being dismissed; and no query was issued to him, not even after he was suspended. All he was told was that he must come to the office every morning and sign the register. All of this cannot amount to fair hearing or due process.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Reliefs b) and c) praying for an order reversing the dismissal and reinstating the claimant are similar. Having declared the dismissal of the claimant to be merely wrongful, not unlawful, the remedy of reversing it and reinstating the claimant cannot be given. This is because <i>BCC Plc v. Ager</i> [2010] 9 NWLR (Pt. 1199) 292 SC held that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. Where the Court makes a finding of wrongful dismissal, a payment in lieu of notice will apply; but where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination as what the employer did was a nullity before the law. So reliefs b) and c) are not grantable and so are hereby rejected.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief d) is an alternative relief to relief c). Relief d) prays for N17,236,800.00 as gratuity in line with the trust deed guiding payment of gratuity and pension in the defendant bank. The new dispensation is that whether termination or dismissal is wrong or not, all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. See <i>Udegbunam v. FCDA</i> [2003] 10 NWLR (Pt. 829) 487 SC, <i>Underwater Eng. Co. Ltd v. Dubefon</i> [1995] 6 NWLR (Pt. 400) 156 SC, <i>Kasali Olugbenga v. Access Bank Plc</i> unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, <i>Mr. Adewale Aina v. Wema Bank Plc & anor</i> unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, <i>Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & anor</i> unreported Suit No. NICN/LA/40/2012 the judgment of which was delivered on 7<sup>th</sup> April 2016 and <i>Adebayo Boye v. FBN Mortgages Limited</i> unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7<sup>th</sup> April 2016. So if the claimant can prove an entitlement to gratuity under the trust deed, then he would be entitled to a verdict from this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In paragraph 32 of his sworn deposition, the claimant stated that he is entitled to the sum of N17,236,800.00 as gratuity in line with the trust deed (Exhibit C12) guiding payment of gratuity and pension in the defendant bank which provided for 300% of annual benefit for lunch, housing, transport and basic salary for category of persons who have served the defendant bank for 32 years of which the claimant is one of such. The claimant did not refer to the Court the particular provision of Exhibit C11 which provides the formula for calculating gratuity and how he actually arrived at the sum of N17,236,800.00 as gratuity. Courts are adjudicators, not investigators. In <i>Mr. Mohammed Dungus & ors v. ENL Consortium Ltd</i> [2015] 60 NLLR (Pt. 208) 39, this Court held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I must emphasise here that throughout their written address, the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that [grant] them the entitlements they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy; and cases can be lost just on that score.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The same is the case in the instant suit. Since it has not been shown to this Court how the claimant arrived at the sum of N17,236,800.00 as gratuity, relief d) cannot be granted. It is accordingly refused.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief e) is for an order for the payment by the defendant of the sum of N5,205,000.00 being the claimant’s half basic salary from October 2012 when he was placed on suspension as provided in Article 4(iii)(a), (b) and (c) of the collective agreement, which states that an employee called back after dismissal is entitled to all benefits due to him. To start with, the claimant was not called back after his dismissal. So the basis upon which the claimant is praying for this relief does not even exist. This aside, the claimant hinged this relief on the collective agreement (Exhibit C7). The defendant, however, argued that the claimant cannot rely on this collective agreement, and gave a number of reasons which give rise to a number of issues requiring clarification.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For instance, the defendant placed heavy reliance on <i>Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares</i> [2012] 11 NWLR (Pt. 1312) 550, and submitted that the case is on all fours with the instant case; as such this Court under the doctrine of judicial precedent is bound by it, urging the Court to accordingly hold that the alleged collective agreement was not incorporated into the claimant’s contract of service and as such not binding on the defendant. There is something lazy about the analysis of the defendant’s counsel and his call on this Court to abide by <i>Soares</i>, a case that started at the High Court of Lagos State in 1993 with the judgment delivered on 22<sup>nd</sup> January 1999, way before the current constitutional dispensation came into being. So when <i>Soares</i> came up before the Lagos State High Court, the cause of action arose long before the Third Alteration to the 1999 Constitution was promulgated. In fact, all the other cases cited and relied upon by the defendant are cases the causes of action of which arose long before the coming into effect of the Third Alteration to the 1999 Constitution. The state of the law under which <i>Soares</i> and the other cases were decided is certainly different from that under which the instant case is to be decided. The law as to the applicability of collective agreements in, say, 1993 when <i>Soares</i> was filed is certainly not the same with the law in that regard today under the Third Alteration to the 1999 Constitution. Today, under section 254C(1)(j)(i), this Court has jurisdiction in terms of the interpretation and application of any collective agreement. It is needless that a Court has jurisdiction to interpret and apply a collective agreement if the intendment of the law maker is not that the collective agreement is to be binding as such. It should be noted that under section 7(1)(c)(i) of the NIC Act 2006, the jurisdiction of this Court was only in terms of interpretation of collective agreements; the issue of application was not included therein. So when the Third Alteration to the 1999 Constitution added application of collective agreement to the fray, this must mean that the law maker deliberately intended collective agreements to be enforceable and binding.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any event, the rule which held collective agreements not to be binding or to be binding in honour only (the argument of the defendant) is a common law rule. There is no gainsaying that this common law rule is not only rigid but harsh. Legal policy teaches that the rigidity and harshness of the common law is always ameliorated by the rules or principles of equity. In this regard, section 13 of the NIC Act permits this Court to administer law and equity concurrently; but where there is any conflict or variance between the rules of equity and the rules of common law, the rules of equity shall prevail. See section 15 of the NIC Act 2006. Incidentally, in the instant case, this harsh common law rule is not even being ameliorated by the principles of equity but by the Constitution itself. This is the state of the law under which the instant case is to be decided. Accordingly, <i>Soares</i> is distinguishable from the instant case in terms of the state of the law under which the matter at hand calls for determination in this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant had contended that his dismissal by the defendant is against the provision of the collective agreement which has been incorporated into his employment. The defendant denied this and then argued that the alleged collective agreement was between the Nigeria Employers Association of Banks, Insurance and Allied Institutions on the one part, and the Association of Senior Staff of Banks, Insurance and Financial Institutions, on the other part. To the defendant, neither the claimant nor the defendant was a party to the collective agreement and not being parties to it cannot be bound by same. Also that the claimant has not pleaded facts or led evidence at trial to establish that he is a member of the union that allegedly signed the collective agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The law regarding the applicability of a collective agreement to an employee, and indeed the extent to which an employee can rely on one have been declared by this Court in <i>Aghata N. Onuorah v. Access Bank Plc</i> [2015] 55 NLLR (Pt. 186) 17 and <i>Samson Kehinde Akindoyin v. Union Bank of Nigeria</i> Plc unreported Suit No. NICN/LA/308/2013 the judgment of which was delivered on 15<sup>th</sup> April 2015. Incidentally, Mr. F. O. Ogungbemi, one of the counsel to the defendant in the instant case, was also one of the counsel to the defendant in<i> Samson Kehinde Akindoyin v. Union Bank of Nigeria</i> Plc. Yet, he did not as much as even cite (not to talk about discuss) <i>Samson Kehinde Akindoyin v. Union Bank of Nigeria</i> Plc in their final written address as per the instant case. In both<i> Aghata N. Onuorah v. Access Bank Plc</i> and <i>Samson Kehinde Akindoyin v. Union Bank of Nigeria</i> Plc, this court stated the position of the law as to the applicability of a collective agreement to an employee, and indeed the extent to which an employee can rely on one. For instance, actual proof of membership is the key to recovery under a collective agreement. Proof of that membership of a trade union has to be by direct documentary evidence. Here, <i>Habu v. NUT Taraba State</i> [2005] 4 FWLR (Pt. 283) 646 held that the deduction from salaries and wages as check-off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker. The fact of unionism is pleaded and not denied i.e. a deemed admission or even a direct admission in pleadings is not sufficient to clothe the toga of membership of the trade union and hence entitlement to benefits from the collective agreement entered into by the trade union. So, the argument of the claimant that the defendant consistently acted on the collective agreement in dealing with him, citing paragraph 11 of the statement of defence, is not helpful to him, as I indicated earlier, membership of a trade union is not, and cannot be, bestowed by an employer or through an admission in pleadings.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Also, like I indicated earlier, the claimant’s contention is that the collective agreement was incorporated into his contract of employment. The claimant’s contract of employment is Exhibit C1, the offer of employment dated 1<sup>st</sup> April 1981. A look at Exhibit C1 will show that when the claimant was employed, he was employed as a clerk. As a clerk, the claimant was a junior staff and so was automatically a member of the trade union. After several promotions, the claimant became Head of Operations, a position that makes him a senior staff. As a senior staff, membership of the trade union is no longer automatic. The claimant must indicate in writing and as an individual that he desires to join the senior staff union.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">However, the only helpful submission made by the claimant is that the claimant pleaded his pay-slip (Exhibit C5), which shows payment of Nl,040.00 as union dues to (ASSIBIFIE). That evidence of deductions of union dues is an incidence of membership, praying the Court to so hold and relying on <i>Aghata N. Onuorah v. Access Bank Plc</i> [2015] 55 NLLR (Pt. 186) 17 at 32. Exhibit C5 is the claimant’s pay-slip for the month ending 10/23/2015. It shows N1,040 as being paid as u/dues (ASSIBIFIE). This being the case, it is sufficient evidence and so proof of the membership of the claimant of a trade union; and I so find and hold. The claimant can accordingly rely on Exhibit C7.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The next issue is the question of the suspension of the claimant by the defendant. Exhibit C4 is the letter of suspension, the contents of which had already be reproduced in this judgment. The case of the claimant is that the claim for N5,205,000.00 represents his half salary from October 2012 when he was placed on suspension as provided in Article 4(iii)(a), (b) and (c) of Exhibit C7, the collective agreement. This Article 4(iii) simply provides that an employee suspected of dishonesty or any serious misconduct will be suspended pending investigation and during this period, the claimant shall be paid half of his basic salary and full transport, housing and utility allowances. In Exhibit C7 making provision for suspension with half pay, the suspension of the claimant pending investigation is lawful and valid in law. See <i><span lang="EN-GB">Ms. Claudia Ojinmah v. Coxdyn Nigeria Ltd</span></i><span lang="EN-GB"> unreported Suit No. NICN/LA/111/2012 the judgment of which was delivered on March 27, 2014.</span> The defendant, however, opposed this arguing that although any employee placed on suspension pending the investigation of the allegation against him is only entitled to receive half salary for the period of suspension, such employee, if eventually dismissed for the gross misconduct, is not entitled to refund of the half salaries not paid to him during his suspension.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The formula for determining the suspended employee’s half salary is “half of his basic salary and full transport, housing and utility allowances”. By paragraph 17 of his sworn deposition, only N101,000.00 was paid to the claimant as half salary, when it should have been N252,000.00. A look at Exhibit C5 will show that the claimant’s basic salary for the month of 10/23/2013 is N52,000.00; his transport allowance is N38,333.33; housing allowance is N75,000.00; and his utility allowance is N11,666.67. Half of N52,000.00 is N26,000. If this sum is added to transport, housing and utility allowances, what we have is N151,000.00, not the N252,000.00 that the claimant is claiming. The claimant claims that while on suspension, he was paid only N101,000.00 as his half salary. There is no documentary evidence to authenticate this assertion, an assertion that is in the nature of special damages. The law is that special damages must be specifically pleaded, the particulars given and specifically proved by cogent and credible evidence before they can be granted. See <i>Akinkugbe v. Ewulum H. (Nig) Ltd & anor</i> [2008] Vol.42 WRN 1 at 29. So there is actually no documentary proof before the Court to show that the claimant was paid N101,000.00 and not N151,000.00 as half salary during his suspension. Since this fact cannot be established, the claim for N5,205,000.00 must necessarily fail. It is accordingly rejected.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">There is also another issue that is unresolved. Under relief e), the claimant put the period for his claim of half salary to be from October 2012. He did not indicate in the relief the ending period for calculating the half salary. However, in paragraph31 of his sworn deposition, he indicated the period for the calculation of the half salary to be 26<sup>th</sup> September 2012 – last day of suspension, October 24, 2013. Here, one can see a discrepancy as to the exact period to be used in calculating the half salary. For this additional reason, relief e) cannot be granted.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief f) is for N504,000.00 being unpaid monthly income from October 2012 when he was dismissed to the time judgment is given in this suit. Other than stating in paragraph 17 of his sworn deposition that his salary is N504,000.00, the claimant did not show to the Court how he came by the sum as monthly income from October 2012. The suspension of the claimant was valid and lawful. Exhibit C5 puts the claimant’s end month payable at N100,901.48. With this figure, I really cannot say how the claimant came about N504,000.00 as monthly income from October 2012. For this reason, relief f) fails and so is rejected.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief g) is for interest “on the said sum”. What this said sum is, is not stated by the claimant. And the claimant did not indicate whether it is pre- or post-judgment interest he is praying for. If it is pre-judgment interest, this Court does not award it. See <i>Mr. Kurt Severinsen v.</i><i> Emerging Markets Telecommunication Services Limited</i><span lang="EN-GB"> [</span>20<span lang="EN-GB">12]</span><span lang="EN-GB"> </span><span lang="EN-GB">27</span> NLLR (Pt. <span lang="EN-GB">78</span>) <span lang="EN-GB">374 NIC. Relief g) accordingly fails and so is rejected.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB"> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB">Relief h) is for N20 million as general damages for mental/physical torture the claimant was subjected to on account of unfair dismissal. I held the dismissal of the claimant to be wrongful. </span>The Court of Appeal case of <i>British Airways v. Makanjuola</i> [1993] 8 NWLR (Pt. 311) 276 held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If the former, the quantum of damages may be the employee’s salary in lieu of notice; but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice. Section 19(d) of the NIC Act 2006 provides that this “Court may…where necessary make any appropriate order, including…an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. By this provision, the power of this Court to award compensation or damages in a matter it has jurisdiction over is no longer in doubt. I held earlier that the dismissal of the claimant by the defendant was for fraud, for which no fair hearing was accorded the claimant; as such it was wrongful. This means that the claimant is entitled to damages over and above payment in lieu of notice; and I so find and hold. The Court of Appeal in <i>British Airways v. Makanjuola</i> (<i>supra</i>) confirmed the trial court’s award of two years’ salary as damages. In the instant case, the claimant did not disclose to the Court what his annual gross salary is. Exhibit C5 indicates the end month payable to be N100,901.48. If this sum is multiplied by 24 months, what we have is N2,421,635.52 as two years’ salary. I hereby award this amount of money as damages to the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-GB">Relief i) is for N5 million as the cost of litigation. Once again, the claimant did not tell this Court how he came about this sum. Relief i) accordingly fails and is hereby rejected. </span>For the avoidance of doubt, the claimant’s case succeeds only in terms of reliefs a) and h); and even at that in terms of the following declaration and order –<span lang="EN-GB"><o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo17"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->It is declared that the dismissal of the claimant by the defendant bank was wrongful as it was done without due process.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo17"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant shall pay to the claimant within 30 days of this judgment the sum of N2,421,635.52 as general damages in this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>