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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">REPRESENTATION<o:p></o:p></span></u></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">A.T. Abdusalam with Mr. Afolabi Kalejaiye and<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">M.A. Abdulaziz for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">A.O. Somoye for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><u><span style="font-size:13.0pt; font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">1. Claims<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">The Claimant by a Complaint accompanied by Statement of Facts dated 14<sup>th</sup> February, 2013 claims against the Defendant as follows: <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">1. A declaration by this Honourable Court that the Claimant’s employment with the Defendant is still subsisting. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">2. An order of this Honourable Court directing the Defendant to pay the Claimant’s salary and other emoluments which is, =N=3,899,999.30 (Three Million, Eight Hundred and Ninety-Nine Thousand, Nine Hundred and Ninety Nine Naira, Thirty Kobo) per annum from 1/01/2010 to the date of judgment delivered in this Suit less 12.5% which is the Claimant’s contribution under the Pension Scheme. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">3. An order of this Honourable Court compelling the Defendant to restore all the paraphernalia of office to the Claimant to enable him perform and carry out his duties. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">4. An order of this Honourable Court directing the Defendant to pay its contribution which is 12.5% of the Claimant’s emolument and the Claimant’s 12.5% of contribution of his emoluments, to the Claimant’s Pension Account with Pin Number 100388998338 with his Pension Fund Administrator, ARM Pension. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">5. A declaration by this Honourable Court setting aside the proceedings of the Disciplinary Committee for violating the principle of audi alterem partem and nemo judex in causa sua. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">6. An order of this Honourable Court directing the Defendant to refund to the Claimant the sum of =N=1,600,000.00 (One Million, Six Hundred Thousand Naira) unlawfully collected from the Claimant on the 17/08/2009, with interest at the rate of 21% per annum from 17/08/2009 till judgment is delivered and thereafter at the rate of 10% per annum until the entire sum is liquidated. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">7. A declaration that the act of the 1<sup>st</sup> Defendant of keeping the Claimant’s employment in abeyance is in breach of his right to dignity of human person as enshrined in Section 34 of the Constitution of the Federal Republic of Nigeria, 1999. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">8. An order of this Honourable Court directing the Defendants to pay the sum of =N=5,000,000.00 (Five Million Naira) for infringement on the Claimant’s right to fair hearing and dignity of human person. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">9. An order of the Honourable Court directing the Defendant to unfroze (sic) the Claimant’s salary account number: 1371780000022 with the Defendant and return to the Claimant the credit balance of =N=1,150,000.00 (One Million, One Hundred and Fifty Thousand Naira) as at December 2009 with interest at the rate of 21% per annum from 31<sup>st</sup> December, 2009 until judgment is entered and thereafter interest at the rate of 10% per annum until the entire sum is liquidated.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">In the alternative to reliefs i, ii, iii, and iv above.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:-35.45pt;margin-bottom:.0001pt;text-align:justify;text-indent:53.45pt; line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">1. An order of this Honourable Court directing the Defendant to pay the sum of =N=20,000,000.00 (Twenty Million Naira) to the Claimant as damages for wrongful termination of the Claimant’s employment and breach of the contract of employment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">2. Cost of this Suit in the sum of =N=300,000.00 (Three Hundred Thousand Naira) Only.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;text-indent:-.5in;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> <b>2. Counter claims<o:p></o:p></b></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;text-indent:-.5in;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> On 22/5/13, the Defendant filed a Memorandum of Appearance, Statement of Defence and Counterclaim, its Witness Statement on Oath and bundle of Exhibits to be relied upon at the trial and counter claimed against the Claimant as follows - <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;text-indent:-.5in;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;text-indent:-.5in;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> a. The sum of =N=68,778,728 (Sixty-eight Million, Seven Hundred and Seventy- eight Thousand, Seven Hundred and Twenty-eight Naira) being the outstanding balance due to the Defendan<b>t from the various fraudulent transactions </b>authorized by the Claimant whilst acting as the Transaction Officer of the Defendant at the Oke-Ilewo Branch, Abeokuta, Ogun State. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;text-indent:-.5in;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> b. =N=1,000,000.00 (One Million Naira) as cost of litigation.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">3. Facts<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:13.0pt;font-family:"Times New Roman","serif"">The facts, in brief, relevant to this case as contained in the pleadings filed that the Claimant who was an employee of the Defendant, deployed to Defendant’s Oke Ilewo Branch in Abeokuta, Ogun State was dismissed on the 10/12/09. This was sequel to some fraudulent activities in the Defendant which the Claimant was alleged to be involved and which resulted into the Defendant losing some money. Claimant's account with the Defendant with the sum of =N=1,150.000.00 was frozen another sum of =N=1,600,000.00 was also collected from. According to the Defendant the sum was voluntarily released by the Claimant while the Claimant claimed same was forcefully taken from him. There was no evidence of alleged indefinite suspension or of dismissal of the Claimant. A letter of dismissal allegedly served on the Claimant was at a time when the Claimant was still in the employ of the Defendant<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:13.0pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Case of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The hearing of this case commenced on 25/2/15. Claimant did not testify. The <i>CW1 </i>was one Samuel Onebamhoin. CW1 adopted his written deposition dated 18/9/14 as his evidence in chief and tendered 12 documents as exhibits. The documents were admitted as exhibits and marked as <i>Exh. C1 - Exh. C12. </i>Under cross examination, <i>CW1</i> stated that he is not the Claimant but knows the Claimant; that the Defendant is the employer of the Claimant and himself; that he is still in the employment of the Defendant; that he has been with Defendant since 2006; that he is a <i>Transaction Officer </i>at Oke Ilewo Branch; that he reported to Defendant last in 2009; that he has a case against the Defendant presently in court; that Claimant’s employment was not terminated; that he was only put on suspension; that he is aware of the transaction that led to Claimant's suspension; that Claimant told him that he was employed in December 2006; that Claimant told him that he got a call from Mr. Wunmi Adeniyi. Claimant and Mojeed Olatunji went to GTB together and that those staff summoned to the Disciplinary Committee appeared separately before the committee. Witness stated further that at the material time Claimant was the Head of Transaction Unit; that there was no case of diversion of funds; that part of his duties is to assist customer in funds transfer; that there was no personal benefit; that some customers were asked to refund some money after a meeting with the Bank; that the customers agreed to make some refunds; that he was not paid to testify here today; that he appeared because of the way and manner the Defendant treated them; that his salaries have been stopped since December 2009 and that he does not have any case against the Defendant in any court. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">According to the witness Mr. Adeniyi was not in his branch but has a representative there; that he has always been at the Head office; that Mr. Adeniyi regulates the system for approval our duty is simply to make input; that he does not know how often customers come to do transaction in the Bank; that they were not given fair hearing at the Disciplinary Committee to present their case; that they were tortured at the Compliance Office of the Defendant to confess; that stunt gun was used on them; that Mr. Wunmi Adeniyi also slapped the Claimant and that Mr. Wunmi Adeniyi was also on the Disciplinary Committee as a member.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Case of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Defendant opened its defence on 13/7/15 and called 2 witnesses. Mojeed Olatunji testified as <i>DW1, </i>adopted his witness statement on oath dated 4/6/13 as his evidence in chief and tendered 2 documents as exhibits. The documents were admitted and marked as <i>Exh. D1 & Exh. D2. </i>Under cross examination, Mojeed Olatunji, testified that he has been with Defendant since 2006; that his duties are to ensure compliance with Laws and Regulations; that he also ensures that customers addresses are kept; that there is a policy in place to keep addresses of staff; that it is incumbent on the staff to inform the Bank of any change of address; that Flexcube is a core banking application being used by the Bank for customer transaction; that only those who are profiled to input data on it do such as Transaction Officers, Business Service Managers, Cash Officers etc; that Claimant was profiled by virtue of his job function to post into Flexcube; that the Head of IT Unit Arko Akpe imput the exchange rate on the Flexcube; that he did not follow the Claimant to his Bank to make any withdrawal; that when the fraud was discovered, they confessed and volunteered to return what they considered to be their gain; that he collected money from all the staff involved in the transaction; that he does know if the Bank reported the matter to the Police and that the Claimant used the fixed exchange rate for those transactions in issue. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">According to the witness, correspondences are by e-mails and knowledge sharing sessions; that he is aware that a letter of termination was issued to Claimant; that he could not confirm if the letter was delivered to him; that ideally letters delivered ought to be acknowledged and where letters are not acknowledged reasons for non-acknowledgement must be stated; that he knows Mr. Omoniyi Onifade and Henry both former employees of Defendant and did not buy foreign currency from any of them. Witness added that he is not aware that several Counsel wrote to the Defendant in respect of indefinite suspension of Claimant; that Claimant was invited to the Disciplinary Committee by e-mail and phone; that Secretary of the Committee informed them; that he is not aware that the Secretary informed Claimant of the allegation against him; that the money he collected he could not remember if it was before or after the Disciplinary Committee meeting and that he is aware that Claimant made effort to recover the Defendant’s funds with customers. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Defendant called one Yetunde Armond as its <i>DW2</i> who adopted her witness deposition dated 21/5/13 and tendered 6 documents as exhibits. 5 of the documents were admitted as exhibits and marked as <i>Exh. D3-Exh.D7. </i>One was rejected and marked as such. Under cross examination, <i>DW2 </i>testified that there is a mechanism for the Defendant to know its staff; that there is Personal Employee Form completed at recruitment and a self-help profile for all employees; that with suspension employee is not expected to report to work; that if it is one to facilitate investigation the staff may be expected to come to assist with the investigation; that he is aware that Claimant claimed not issued query or invited to a Disciplinary Committee; that <i>Exhibit D6</i> was not acknowledged; that he is aware that the Claimant assisted the Defendant in recovering some of the funds up till the time of the Disciplinary Hearing; that from the Report that he read the Claimant was part of a meeting held in March 2010; that the CBN normally sends regulatory memo to the Defendant; that he does not know how it gets to Defendant; that <i>Exhibit D5</i> did not come from CBN and that it is however a collated schedule of CBN foreign exchange sell rate.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Submissions on Behalf of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">At the close hearing learned Counsel on either side were directed by the Court to file their final written addresses for adoption. The final written address of the Defendant was filed on 10/2/16. In it, learned Counsel canvassed the following three issues as germane for determination -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.5in; line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.5in; line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1 Whether the Claimant has proved its case on preponderance of evidence sufficient enough to entitle him to any of the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.5in; line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Defendant having legitimately terminated the appointment of the Claimant, the Claimant can be reinstated where the employment was that of master-servant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;text-indent:-.5in; line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether in the circumstance of the irregularities on the part of the Claimant/Defendant to the Counterclaim, the Counter-Claimant is not entitled to its claim on account of the Defendant to the Counterclaim. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, Counsel submitted that it is in evidence that the Claimant was dismissed by <i>Exh. D6 </i>on10/12/09 after he abandoned his job; that the Claimant has since then never reported for work with the Defendant and that having failed to show that the Claimant in the employment of the Defendant after his dismissal Claimant's reliefs i, ii,iii and iv must fail. Counsel cited <i>Section 131, Evidence Act, 2011</i>, <i>Oluwole Akindipe v. The State (2012) LPELR-9345 (SC). </i>On the Claimant's assertion that he was denied fair hearing, learned Counsel submitted that the parties are in agreement that Claimant appeared before a disciplinary panel set up by the Defendant. Counsel referred to <i>Exh. D1, Exh. D2 & Exh D3, </i>further submitted that fair hearing in this case is an opportunity given to the Claimant to be heard citing <i>Prince Abubakar Audu v. Federal Republic of Nigeria (2013)53 NSCQR 456; (2013)LPELR-19897 </i>and urged the Court to resolve this issue in favor of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that the evidence to the effect of dismissal of the Claimant on 10/12/09 remains unchallenged and contradicted; that <i>CW1 </i>was also dismissed by the Defendant on account of his involvement in fraudulent foreign exchange transaction and that being a tainted witness the Court should not believe his evidence citing <i>FBN v. Associated Motors Limited (1998)10 NWLR (Pt. 570) 441 & Udo v. Eshiet (1994)8 NWLR (Pt. 363) 483. </i>Counsel prayed the Court to hold that the dismissal of the Claimant was not wrongful and that being a master/servant relationship the Claimant cannot be reinstated to the Defendant's employment.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 3, learned Counsel submitted that the available is to the effect that the Defendant suffered huge loss as a result of the misfeasance of the Claimant; that <i>DW1 </i>testified that the Claimant returned the sum of =N=1.6 Million as part of the sum he benefited from the fraudulent transaction carried out against the interest of the Defendant; that the sum of =N=68,778,728 is outstanding and that this evidence was not contradicted by the Claimant. Counsel submitted that the Defendant has proved its counter claim and urged the Court to grant same. Learned Counsel thus prayed the Court to dismiss the claims of the Claimant accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. Submissions on Behalf of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The final written address of the Claimant was filed on 1/4/16. Learned Counsel to the Claimant submitted the following issues for the just determination of this case -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Having regard to all the facts surrounding the purported proceedings of the Defendant’s Disciplinary Committee held on 30<sup>th</sup> October, 2009, whether the Claimant’s right to fair hearing was violated?. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the indefinite suspension placed by the Defendant on the Claimant for lawful act carried out by the Claimant in the course of his duty, is oppressive and contrary to best labour practice?. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant is entitled to being refunded of the various sums forcefully collected from him and withdrawn from his account?.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Claimant is entitled to the reliefs sought in his General Form of Complaint?. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Having regard to the facts before this Honourable Court whether the Defendant established that the Claimant is indebted to it in the sum of N68,778,728.00 or any other sum?.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 1, learned Counsel submitted that from the facts it is not in dispute that the Claimant was not served any notice of allegation and neither was he even formally invited to the Disciplinary Committee Proceedings; that there is no evidence that the sum of =N=1,600,000.00 was forcefully collected from the Claimant since there is no evidence that the Claimant voluntarily withdrew the sum from his account; that the right to fair hearing and impartiality of the arbiter is a constitutional one referring to <i>Section 36(1), Constitution of the Federal Republic of Nigeria, 1999, as amended </i>and that the presence of Mr. Wumi Adeniyi as one of the Chairmen and a member of the Defendant's Committee is a clear breach of one of the twin maxim of justice; that Mr. Wumi Adeniyi the Head of Compliance and Control Unit is interested in the subject matter because the foreign exchange transactions of the Bank is under the Unit headed by him and had prior acquaintance with the <i>res </i>because his department had initially investigated the alleged crime before making recommendation to the Disciplinary Committee which he is also one of the co-chairmen. Learned Counsel further referred to <i>Exh. D2</i> and submitted that the exhibit was silent on any form of invitation given to the Claimant and also devoid of any allegation being put forward other than the alleged admission by the parties without more. Learned Counsel prayed the Court to hold that the Claimant's right to fair hearing was grossly violated by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that it is important to consider whether the Claimant's employment was terminated pursuant to Defendant's letter dated 10/12/09. Counsel submitted that by the Claimant's defence to counter claim, the Claimant had averred that the outcome of the Disciplinary Committee was not communicated to the Claimant and other affected staff; that the Claimant was still working for the defendant while observing the suspension on 3/3/2000 when he was part of the meeting with the Customers whose instructions he carried out which led to the alleged loss for the purpose of recovering the said sum; that the Defendant in its response dated 24/8/11 did not state anything to the contrary that the Claimant and other affected staff were on suspension but rather it confirmed same and that <i>Exh. D6 </i>was merely an afterthought to justify the Defendant's oppressive conduct. Learned Counsel further submitted that there is no evidence that <i>Exh. D6 </i>was served on the Claimant which position was confirmed by the evidence under cross examination of <i>DW1</i> and the burden of proof is on the Defendant to establish the fact citing <i>Honika Sawmill (Nig.) Limited v. Hoff (1994)2 NWLR (Pt.326)252.</i> Learned Counsel submitted that from the facts, the indefinite suspension of the Claimant without pay which was effected by <i>Exh. D1 </i>is a violation of the dignity of labour of the Claimant and contrary to best practice and international conventions.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 3, Counsel submitted that it is not in doubt that the Defendant collected =N=1,600,000.00 from the Claimant which was withdrawn from the Claimant's Guaranty Trust Bank Plc account. Counsel submitted, referring to the testimony of <i>CW1 </i>that the Claimant and others were tortured to confess. Learned Counsel urged the Court to hold that the sum of =N=1,600,000.00 was collected from the Claimant by coercion. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 4 which is whether the Claimant is entitled to the reliefs sought, learned Counsel urged the Court to resolve this in favor of the Claimant on the premises that the Defendant did not serve the Claimant any Query or letter inviting him to the Disciplinary Committee for interrogation; that the Claimant was not served <i>Exh. D6 </i>the letter of dismissal; that the notice of dismissal ought to have been served on the Claimant at his residence having regard to the fact that he was on indefinite suspension and that the sum of =N=1,600,000.00 was collected from the Claimant by coercion.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On whether the Defendant established that the Claimant is indebted to it in the sum of =N=68,778,728.00 or any sum at all, Counsel urged the Court to answer this in the negative. Counsel submitted that Defendant was negligent for the purported loss it suffered; that the Defendant fixed the foreign exchange rates on the Claimant's system and there is nothing to show that it gave instruction to staff not to use the system fixed rate; that in paragraph 38 of its statement of defence and counter claim the Defendant averred that the Claimant recovered US$15,000 and =N=3.2 Million back to the Defendant and that by the testimony of <i>DW2</i> as at March, 2010, the Claimant was still involved in recovery efforts on behalf of the Defendant. According to learned Counsel, the fact that the transactions were made by the Defendant's Customers and some of the monies recovered were also from the Defendant's customers, it goes without saying that it is the said customers who are to repay the Defendant adding that in any event, the Defendant failed to give the particulars of its loss in its pleadings to show how it arrived at the sum claimed and that the various recoveries made by the Claimant were not factor in to the sum of =N=68,778,723 stated by the Defendant in <i>Exh. D3.</i>Respecting the claim for professional fee, learned Counsel submitted that the Defendant failed to attach evidence of such payment and bill of cost. Counsel prayed the Court to resolve this issue in favor of the Claimant and dismiss the counter claim of the Defendant. A 5-page Reply on points of law was dated and filed on 20/4/16. I read and understood same.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">8. Decision<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I carefully read and understood all the processes filed in this case including the written addresses by either Counsel and the reply on points of law filed by the Defendant. I listened to the oral submissions of learned Counsel on either side as well as the witnesses called at trial and watched their demeanor. I in addition carefully and diligently evaluated all the exhibits tendered and admitted in this case. Having done all this, I set the following issues down for the just determination of this case -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Claimant has proved his entitlement to any of the reliefs sought or any relief at all.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Defendant is entitled to a grant of all or any of its counter claims.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, it is the duty of any party seeking reliefs from the Court to prove same by adducing concrete and admissible evidence without which the reliefs sought will be dismissed. In order to determine whether or not the Claimant has proved entitlement to any of the reliefs sought or any reliefs at all, it is imperative to examine whether the Claimant remains in the employment of the Defendant or whether his appointment has been terminated or even dismissed from the Defendant's services. The law is trite that an employer is entitled to terminate the master/servant relationship between him and his employee in accordance with the terms and conditions of engagement. It is however important that a notice of termination of employment or even of outright dismissal must be communicated to the employee concerned. Once communicated the notice takes effect from the date of its delivery and acknowledgment. In the instant case, the Defendant<b> cl</b>aimed that the Claimant was dismissed from its employment. I find the evidence of letter of dismissal <i>Exh. D6</i><b>. </b>That letter was dated 10/12/09 was alleged to have been served on the Claimant. Claimant claimed not to have been served the letter at all. Was the Claimant dismissed by that letter for all intents and purposes? I asked this question in view one or two exhibits before me. Now, <i>Exh. C11 </i>was a letter dated 24/8/11. It was written as a reply to the Claimant's Solicitor's letter dated 18/8/11 - <i>Exh. C9. </i>In paragraph 2 of <i>Exh. C11, </i>the Defendant had stated thus -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''We have noted the complaints and demands raised in the above referenced letter. Please be assured that the necessary investigations will be made into the matter and you will be informed in due course of the outcome thereof''. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">This letter was about 2 years after the Claimant was alleged to have been dismissed. Again, <i>Exh. C5 </i>also written by the Defendant was dated 15/2/12. It was a response to the Claimant's Solicitor's letter dated 7/2/12 alleging breach of contract against the Defendant. In the body of that exhibit, the Defendant had again stated that it noted the request of Counsel, that it was ''working closely with the Branch concerned to ensure that the issues raised are resolved within the shortest possible time''. This was several months after <i>Exh. C11 </i>was written. Certainly, these 2 exhibits emanating from the Defendant did not convey an impression that the Claimant had been dismissed from the services of the Defendant as far back as December of 2009. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Secondly, by paragraph 17 of the deposition on oath of <i>DW2, </i>upon discovery of the fraud, the Defendant's staff including the Claimant were withdrawn from their duty post <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''... at Oke-Ilewo Branch to work with the Defendant's Head Office Compliance & Control Unit to recover from the various customers the stolen proceeds''. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I have no evidence before me to the effect that the Claimant was recalled and resumed duty at the Oke-Ilewo Branch or Opic Branch. Yet, <i>Exh. D6 </i>letter of dismissal was addressed to the Claimant at Opic Branch, Oke-Ilewo, Ijebu Ode Ogun State. Again, it was part of the testimony on oath of <i>DW2 </i>that the Claimant was part of a meeting of the Defendant held March 2010. The bottom line of all this is I find a number of loopholes respecting <i>Exh. D6. </i>If for instance as stated by DW2 the Claimant was part of Defendant's meeting held in March 2010, in what capacity did the Claimant attend the meeting? As a staff or as a dismissed staff of the Defendant? Having evaluated <i>Exh. D6 </i>I find it of no tangible utility for the determination of this case. I have no hesitation in holding and I here hold that <i>Exh. D6 </i>was not served on the Claimant. I have no hesitation in further holding that the said <i>Exh. D6 </i>was prepared and produced for the purpose of this suit to justify its claim that the Claimant was dismissed. Interestingly, by the evidence of <i>DW2, Exh. D6</i> was not acknowledged by the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></i></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">It was part of the submission of the learned Counsel to the Defendant that when the letter of dismissal was served on the Claimant, the Claimant refused to accept same. Unfortunately, I perused the pleadings of the Defendant and the written depositions of the witnesses called. I find no deposition in the averments to effect that the Claimant was served the letter of dismissal or that he refused to accept the letter of dismissal when same was served on him. The submission of learned Counsel that the Claimant refused to accept the letter adds no value to the case of the Defendant. Written addresses no matter how beautifully couched cannot take the place of evidence. See <span class="apple-style-span"><i><span style="color:#000099">Warri Refining and Petro Chemical Co. Ltd v. Onwo 1999 12 NWLR (Part 630) 321; Okubale v. Oyagbola 1990 4 NWLR (Part 147) 723; Ekpeyong v. Nyong 1975 2 SC 71; Union Bank of Nigeria Ltd v. Ogboh 1995 2 NWLR (Part 380) 647; Ekpeyong v. Etim 1990 23 NWLR (Part 140) 549</span></i></span><i> </i> A letter of termination or of dismissal does not become effective until served on the person to whom it is addressed. I find and hold from the evidence adduced in this case that the employment of the Claimant in the service of the Defendant has not been brought to end through dismissal. I also find and hold that the alleged letter of dismissal <i>Exh. D6 </i>was only prepared for the purpose of this suit rather than it having been served on the Claimant as expected.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I need to add that from the evidence before me, there is no evidence to the effect that the Claimant was formally put on suspension. For there is no letter of suspension either tendered or admitted in this proceedings. In much the same vein, having found that <i>Exh. D6 </i>letter of dismissal was fake and prepared solely for the purpose of this case and not in any way served on the Claimant, there is no evidence to the effect that the Claimant was dismissed by the Defendant. I reviewed the facts of this case and the surrounding circumstances viz - the fact of absence of letter of indefinite suspension without pay, stoppage of Claimant's salary since December 2009 as well as the absence of any evidence of dismissal of the Claimant from the Defendant's employment. These series of events coupled with <i>Exh. D6 & Exh. D11 </i>leave this Court with the conclusion that the Claimant has been constructively dismissed by the Defendant from the date of filing this suit. The Claimant is therefore entitled to all his salaries and allowances from December 2009 to 14th February 2013. The rationale being that from the moment the Claimant filed this suit and sought the reliefs he sought, the Claimant had accepted the fact that by the conduct of the Defendant, the Defendant no longer requires his services and was therefore entitled to treat the relationship as having been brought to an end. I so find and so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">In paragraph 35 of his statement of facts as well as his statement on oath made on 14/2/13, the Claimant had averred that his annual emoluments are =N=3,899,999.30. The averment in both processes were not in any way challenged or contradicted by the Defendant. See <i>Amayo v. Erinmwingbovo (2006) LPELR-458 (SC).</i> Not having been challenged therefore it is deemed admitted. See <i>Sea Petroleum & Gas Company Limited v. Henchy Nigeria Limited (2014) LPELR-24095 (CA).</i> In addition, the Claimant referred to and relied on the Defendant Schedule of gross compensation and entitlement for Assistant Banking Officer (ABO). That document was not tendered though frontloaded. I found a copy of same on page 41 of the record of this Court. Again, this document and the averments relating to same was not in any way challenged. The law is trite a Court of law is allowed to make use of any document in its file for the purpose of doing justice to a case before it. See <i>Abiodun v. Attorney-General of the Federation (2007) LPELR-8550 (CA).</i> There is evidence that the salary of the Claimant was stopped from December 2009 before me. It means then that Claimant's salary and allowances were outstanding from 2009 till the filing of this action on 14/2/13 when, as already held in this Judgment, Claimant's employment was constructively terminated. The Defendant is therefore ordered and directed to pay to the Claimant the sum of =N=12,024,996.90 being Claimant's salary and allowances from January 2010 to January 2013.<o:p></o:p></span></p> <p class="MsoListParagraph" style="margin-top:0in;margin-right:0in;margin-bottom: 0in;margin-left:.75in;margin-bottom:.0001pt;mso-add-space:auto;text-align:justify; line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant also sought an order of this Honourable Court directing the Defendant to refund to the Claimant the sum of =N=1,600,000.00 (One Million, Six Hundred Thousand Naira) unlawfully collected from the Claimant on the 17/08/2009, with interest at the rate of 21% per annum from 17/08/2009 till judgment is delivered and thereafter at the rate of 10% per annum until the entire sum is liquidated. Paragraphs 24 & 25 of the Claimant statement on oath attest to this claim. The argument of the Defendant is that the Claimant voluntarily returned the said amount to the Defendant. I find the argument of the Defendant difficult to believe in view of the narration of events and the circumstances resulting in the alleged voluntary return of the money. Claimant alleged that the loss suffered by the Defendant was due to the negligence of the Head of Compliance and Control Unit one Mr. Wumi Adeniyi. By the account of the Claimant, it was this same man who threatened him and detailed one Mojeed Olatunji to follow the Claimant for the purpose of collecting the money. See <i>Exh. C6.</i> I find that the exercise of power in this case tilts more in favor of the Defendant than the Claimant. I find and hold that the Defendant put undue pressure on the Claimant for the purpose of forcing him to release his money to the Defendant. I find and hold that the Claimant did not release his money to the Defendant voluntarily as alleged. I therefore hold and direct the Defendant to return the sum of =N=1,600,000.00 forcefully collected from the Claimant back to the Claimant forthwith.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Part of the claims of the Claimant is for the return of the sum of=N=1,150,000.00 in his account number 1371780000022 with the Defendant. Claimant alleged that Mr. Wumi Adeniyi unilaterally closed the said account. See paragraphs 36 & 37 of the Claimant's statement on oath. In its statement of defence and counter claim, the Defendant did not make any specific challenge of these averments. Rather, the Defendant simply general denial in paragraph 3 of its statement of defence and counter claim respecting paragraphs 4-50 of the statement of facts. The return of this sum of money was part of the demands made on behalf of the Claimant in <i>Exh. C4 </i>dated 7/2/12 which the Defendant promised to investigate yet nothing was done. It was open to the Defendant to assert that the Claimant did not have any account with it or that the account did not have the amount asserted by the Claimant in it or that it did not block or close the account as alleged by the Claimant. The Defendant failed to do any of this leaving the Court with no option than to accept the assertion of the Claimant. I therefore hold, order and direct the Defendant to immediately and without delay unfreeze the Claimant’s salary account number: 1371780000022 with the Defendant and return to the Claimant the credit balance of =N=1,150,000.00 (One Million, One Hundred and Fifty Thousand Naira) as at December 2009.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The second issue for determination is whether the Defendant is entitled to its counter claim or any of them. The Defendant counter claims for the outstanding sum of =N=68,778,728.00 from the Claimant. The basis of this counter claim as deducible from the facts is fraud on the part of the Claimant. In several of the paragraphs of its statement of defence and counter, the Defendant alleged that the Claimant was fraudulent in his dealings and the discharge of his duties to the Defendant. There was no admission by the Claimant of the alleged fraud throughout his pleadings. Defendant tendered <i>Exh. D1</i> with the heading ''<i>Preliminary Report of Investigation in fraudulent manipulation of Flexcube of Cross Conversion of Naira Into foreign currencies at System set up rates by some staff''. </i>The evidence presented to this Court does not support a finding in favor of the Defendant/Counter claimant. The case of the Claimant is a civil one bordering on master/servant relationship. The law is trite that a counter claim is a separate suit of its own which must be proved by cogent, credible and admissible evidence. See <i>Jeje v. Enterprise Bank Limited & Ors. (2015) LPELR-24829 (CA).</i> The allegation against the Claimant in counter claim is one of fraud which is essentially criminal in nature. The proof in such a proceedings is one of proof beyond reasonable doubt.<b> </b>The proper step to take by the Defendant is to get the appropriate agency of the State charged with criminal investigation and prosecution to investigate and prosecute rather than the procedure of counter claim being adopted. The counter claim of the Defendant is not proved by cogent and admissible evidence. I have no hesitation in dismissing same and I so do.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. I find and hold from the evidence adduced in this case that the employment of the Claimant in the service of the Defendant has not been brought to end through dismissal and that the alleged letter of dismissal <i>Exh. D6 </i>was only prepared for the purpose of this suit rather than it having been served on the Claimant as expected.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. The series of events in this case coupled with <i>Exh. D6 & Exh. D11 </i>leave this Court with the conclusion that the Claimant has been constructively dismissed by the Defendant from the date of filing this suit and the Claimant is therefore entitled to all his salaries and allowances from December 2009 to 14th February 2013.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. The Defendant is ordered and directed to pay to the Claimant the sum of =N=12,024,996.90 being Claimant's salary and allowances from January 2010 to January 2013.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. I find and hold that the Claimant did not release his money to the Defendant voluntarily as alleged and I therefore direct the Defendant to return the sum of =N=1,600,000.00 forcefully collected from the Claimant back to the Claimant forthwith.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. I hold, order and direct the Defendant to immediately and without delay unfreeze the Claimant’s salary account number: 1371780000022 with the Defendant and return to the Claimant the credit balance of =N=1,150,000.00 (One Million, One Hundred and Fifty Thousand Naira) as at December 2009.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. The counter claims of the Defendant are refused and dismissed for lack of proof by cogent and credible evidence.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. All the sums due under and by virtue of this Judgment shall attract 15% interest per annum from 1/1/2010 until final liquidation.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">8. =N=100,000.00 is awarded as cost of this proceedings payable by the Defendant to the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">9. All the terms of this Judgment shall be complied with within 30 days from today.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in; margin-bottom:0in;margin-left:.75in;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in; margin-bottom:0in;margin-left:.75in;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:13.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-family: "Times New Roman", serif; font-size: 12pt;">____________________</span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:center;line-height:normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><span style="font-size:12.0pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><br></p>