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REPRESENTATION: Parties absent. H.V.Chukure for the Claimant. Dickson Anieh for the Defendant JUDGMENT The Claimant commenced this action on the 26th March 2013 through a writ of complaint in which he claims the following: A Declaration of the Court that the indefinite suspension the Defendant placed on the Claimant since February 23rd, 2009 till date is now in ordinate and actionable per-se. A Declaration of the Court that the Claimant is still a staff of the United bank for Africa Plc. (Defendant) until his appointment is dully terminated in accordance with his terms of employment, Defendant’s policy and relevant labour law. An Order of the Court directing the Defendant to suspend the indefinite suspension they placed on the Claimant, re-call him to his position and pay him all his salaries and all his entitlements as an assistant service officer in their establishment from 1st February, 2009 till date. An Order of the Court declaring illegal, unconstitutional, un procedural, null and void any purported step or steps taken by the Defendant to determine the Claimant’s employment with them without involving or communicating him. N5,000,000.00 general damages on the footing of mental torture, hardship and loss of earnings imposed on the Claimant by the actions of the Defendant. In the alternative the Claimant claims an Order of the Court directing the Defendant to convert their indefinite suspension to termination and pay the Claimant all his entitlements as an assistant service officer in their establishment from 1st February, 2009 till date. The writ was accompanied by a Statement of Facts, a witness Statement on Oath and list of exhibits. The Defendant on its part, got an order to extend time to file its memorandum of appearance, Statement of Defence and other processes out of time on the 27th of January, 2014. On that same day the Claimant testified in chief and tendered exhibits and was cross examined thereafter. Exhibits A is a UBA ID card of the Claimant No. 1765. Exhibit B is a UBA Human Capital Management new employee on Board form. Exhibit ’C’ is the letter dated December 22, 2005 headed Confirmation of Appointment. Exhibit C1, is another letter dated March 12, 2009 headed letter of confirmation. Exhibit ‘C’ 2 and “C2b†is a 2 page provisional offer of employment in XL Management Services dated May 5, 2005, headed provisional offer of employment. Exhibit D is the certified true copy of the enrolled order of the Chief Magistrate Court of Nasarawa State Holden at Lafia. It is the case of the Claimant that he was employed by a provisional letter of employment exhibit ‘C 2a’ and C2b’ dated 5th May 2005 that he was employed by XL Management Services Limited to work as a Bulk teller in training with the then Standard Trust Bank. He was confirmed by XL Management Services Limited on 22nd December, 2005. Exhibit C. He led evidence and showed that his appointment was confirmed on 1st April, 2008 that the Defendant through Exhibit C1 a letter dated March 12, 2009 which letter confirmed him as a staff of the Defendant entitling him to enjoy all the conditions of service provided in the Defendant policy manual tendered before this Court as exhibit “I†to ‘I47’. It is the case of the Claimant that he was therefore a staff of the Defendant as at the time the course of action in the suit arose. He maintains that following the discovery of the un-serviced loan of N850,000.00 granted to one Shaibu, Egwa in the Defendant’s Lafia/Makurdi business office he was invited by the Defendants head of control unit in their Makurdi Business Office who thereafter lodged a report of fraud and criminal breach of trust against him at “A†Division Nigeria Police Lafia. That while he was undergoing investigation and trial on these allegations the Defendant vide a letter dated 23rd February, 2009 suspended him. This letter is marked as exhibit “E.†The Claimant states that he stood trial for these allegations and was discharged whereof he came to Court when the Defendant did not recall him from the suspension after several years. In the course of making out his case the Claimant maintains that the Defendant admitted some of the facts by the admissions in paragraphs 1 and 2 of its Statement of Defence; and in paragraph 15 of the same Statement of Defence on the issue of suspension. The Defence on its part called one witness who testified in its Defence and was cross examined; in the main the Defendant maintains that the Claimants suspension has no bearing with the confirmation of the Claimant because the two issues were mutually exclusive in that by the Defendant’s employment policy, a confirmation being already processed will be duly issued on completion of the processing, notwithstanding a supervening suspension. The Defendant also maintains that there was a fraudulent transaction perpetrated in the Defendants.’ Lafia branch and the name used in that transaction “Shaibu Egwa†was a fictions one. The Defendant goes on to aver that out of the averments of the Claimant at paragraph 17, 18 and 19 of the Statement of Facts on the matter of an un-repaid loan of N850,000 booked for the said Shaibu Egwa noticed by the Defendant’s agent, the Claimant was then placed on suspension in line with the Defendant’s policy, while the police were invited to carry out their own investigation, which was an investigation not controlled or directed by the Defendant of the fraud in the Defendant’s office of which the Defendant itself carried out its own in-house investigation. The Defendant maintain that the Claimant was placed on suspension without pay as this was in line with the Defendant’s policy, a fact well known to the Claimant when and after he became a staff of the Defendant. The Defendant further maintain that the Claimant was dismissed from the services of the Defendant. They tendered exhibit DA a letter of dismissal dated 27th July 2009. The Defendant also maintains the following the Claimant’s suspension and investigation by the Defendant, the Claimant was invited through his erstwhile branch in Lafia to appear before the Defendant’s Disciplinary Committee in Makurdi on the 4th of March 2009, that the Defendant demurred and in fact, failed to appear. The Defendant maintains that the Claimant was dismissed for gross misconduct and by the Defendant’s policy, a policy known to all its staff. It reserved the untrammeled right to dismiss any staff for acts considered by it as gross misconduct without regard to any police investigation, criminal trial or the outcome of any such criminal trial in any law court. The Defendant this, in urging the Court to dismiss the claim as being without merit maintained that the Claimant was properly dismissed from the Defendant’s services in conformity with the Defendant’s policy, terms and conditions on hiring of staff as the Claimant’s act that precipitated his suspension was after the Defendant’s investigations, considered acts of gross misconduct. In the final written address of the Defendant at the 6th paragraph the Defendant maintain through counsel that the Claimant did not tender the letter of his employment with the Defendant but relied on the letter of confirmation of his appointment. That the Claimant had under cross examination stated that the terms and conditions of his employment was not contained in the letter of employment or letter of confirmation of appointment but in the Defendant’s policy manual. The Defendant formulated the following issues for determination: Whether the Claimant who did not tender his letter of employment containing the conditions of his service can complain of wrongful dismissal from the Defendants employment Whether the policy manual tendered and relied on by the Claimant is admissible in evidence and if it is whether it is availing the Claimant. Whether the prosecution of the Claimant is a condition precedent before the Defendant can exercise disciplinary action against him for gross misconduct The Claimant had earlier averred at paragraph 32 of the Statement of Fact. That “he was shocked thereafter to read from another letter written by the Defendant to this effect that he appeared before a Disciplinary Committee and his services were thereafter dismissed in July 2009â€. The Claimant in response in his written address formulated these 4 issues for determination. Whether the Claimant has discharged the evidential burden placed on him to entitle him to his claims in this suit. Whether this Honourable Court can rely on exhibit DA and DB tendered by the Defendant as same was neither pleaded from loaded by the Defendant. Whether there was any evidence to show that the Claimant was at any time dismissed by the Defendant in compliance in the Defendant’s policy manual and principles of fair hearing. In view of the dismissal of the case of criminal breach of trust and fraud leveled against the Claimant can the Defendant justify any dismissal if ever made? The Defendant in the reply on points of law to the Claimant’s final written address sought to address the 4 issues raised for determination by the Claimants he distilled 3 issues of law which are: The dismissal of the Claimant by the Defendant was not in compliance with the policy manual of the Defendant and not in line with the principle of fair hearing. Secondly that exhibits DA and DB were neither pleaded nor front loaded in accordance with Order 9 rule 1 (6) of the National Industrial Court rules 2007. Thirdly that the evidence of the DW1 is in the realm of hearsay On this first issue of dismissal in line with exhibit I, the policy manual of the Defendant, counsel states that assuming but not conceding, that the policy manual of the Defendant regulates the contractual relationship between the Claimant and the Defendant. The policy manual is a mere working document that guides the operation of an organization, it does not by any means define the rights and liabilities of master and servant; it is never meant to be a binding document except where it is incorporated into the contract of employment which is not the case here. That what regulates and defines the relationship between an employer and employee and their respective right and liability is the written contract of employment that determines rights and liabilities of parties. Counsel relies on MICHELIN (NIG) LTD V. ALARIBE (2010) ALL FWLR part 543 pg. 1998 at 2000 ratio 1. As to the matter of DW1 testimony being hearsay in regard to the issue of fair hearing counsel for the Defendant stressed that the Claimant never cited any authority that says a dismissed servant against whom a case of gross misconduct is established must be given a fair hearing. That it is trite law that in a master servant relationship (as this case) the servant can be dismissed for no reason or any reason at all, and that a dismissed servant against whom a case of gross misconduct has been established is not entitled to judgment on the ground of fair hearing and referred to MICHELIN (NIG) LTD V. ALARIBE ratio 2. (Supra) where the Court held that mere failure to accord a dismissed officer right of fair hearing is not enough to entitle him to judgment in an action for wrongful dismissal. Counsel for the Defendant stated the law that it is only when a master terminates his servant’s employment in a manner not warranted by the terms of contract of service that he is liable in damages for breach of contract of service. That a master who terminates the contract of service in a manner permitted by the contract of service. That it is an elementary principle of law that a suit for wrongful dismissal is founded on the terms of contract for employment which terms must be pleaded and proved for this last principle counsel cites the case of NNPC V. JACOB (2014) ALL FWLR pt. 758 at p. 835, that in this case the Claimant never tendered his terms of employment. On whether the manual tendered and referred on by the Claimant is admissible in evidence. Counsel submit for the Defence that what governs admissibility is relevance, that it is trite law that once a piece of evidence is relevant and pleaded, it should be admitted in evidence. He relied to CHEVRON (NIG) V. ADERIBIGBE (2013) ALL FWLR part 659 pg. 1215 ratio 1. He maintained further that it is a fact, not evidence that is pleaded. The facts on which Exhibit DA & DB were pleaded. That the dominant trend in the pleading of both the Claimant and Defendant is on the issue of dismissal. That counsel for the Claimant failed to object to their tendering and should be deemed to have waived his right of objection he cited EGBOMA V. STATE (2014) ALL FWLR pt. 761 pg. 1439 at 1449 ratio 8. Counsel submitted that failure to frontload a document is not a ground for probative value not to be ascribed to a document properly admitted in evidence. That the submission of counsel to the Claimant was not founded in law. As to a guide for the Court in ascribing probative value to evidence he cited NWOKO V. OSAKWE (2010) ALL FWLR pt. 543 pg. 1972 at 1976 ratio 7. On the evidence of DW1 being hearsay, he submitted that though the evidence of DW1 is a specie of hearsay, it is permissible in law, that the Defendant in this case is an artificial person who can only act through her human officers and agents; that what is of moment is that DW1 has sufficient knowledge of the matter for which he has represented the Defendant, that the nature of DW1’s testimony is one of the exceptions to the hearsay rule and urged the Court to discountenance all the submissions of the Claimant in his written address. The Claimant in his written address had formulated 4 issues for determination. The first being whether the Claimant has discharged the evidential burden placed on him to entitle him to his claims in this suit. To resolve this issue it would be appropriate to consider the 3 issues raised by the Defendant in its address together with the remaining 3 issues formulated by the Claimant in his own written address. On whether the Claimant who did not tender his letter of employment with the Defendant and the conditions of service. The Defendant counsel states on this point to the effect that the Claimant did not tender any letter of employment issued by the Defendant, that the Claimant had averred that following his resignation of appointment with XL Management Services Limited, the Defendant employed him as a staff with effect from 1st April 2008, that the letter of appointment was not tendered. That the letter of confirmation of appointment tendered by the Claimant exhibit did not spell out the terms of employment of the Claimant. Counsel in urging the Court to resolve this issue in favour of the Defendant relies on the case of MOROHUNOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 7 SCNJ 51 AT 56 in this case it was held interlia that: “The question therefore is whether there is any averment in his Statement of Claim that: (a) He is a staff of the Defendant; (b) How he was appointed and what are the terms and Conditions of his appointment. © Who can appoint him and who can remove him (d) What are the circumstances under which his Appointment can be terminated? In his submission, on his issue 1 Claimant counsel submits while relying on Section 131(1) of the Evidence Act 2011 as entitling him to judgment. He relied at paragraphs 4.04 on his pleadings at paragraphs 1-14 thereof and the documents tendered as exhibit C2A, C2B, C, and C1 that these justified that the Claimant was under the employment of the Defendant. At paragraph 4.07, counsel referred to the Defendants admission in paragraph 1, 2 and 4 of the Statement of Defence. He also referred to the testimony of DW1 when he said that he knows the Claimant from the records of the human resources department of the Defendant that he became a staff of the Defendant on 1st of October, 2007.. He relies on UNIC VS. UCIC LTD (1999) 3 NWLR (pt. 593) 17 CA on the law that facts admitted need no further proof. In determing this issue 1 by the Defendant, it had cited the case of MOROHUNOLA V.KWARA STATE C.O.E (supra) that case in my view deals with a case of employments with statutory flavour and not one of master servant. I find as a fact in this case that the circumstances of the Claimant’s employments and the exhibits tendered go to establish that he was a staff of the Defendant even though he did not tender a letter of employment. He tendered Exhibit “A†a UBA staff ID card, it is to be born in mind that he was first employed in Standard Trust Bank that was acquired by UBA, who subsequently confirmed the appointment of the Claimant in Exhibit “Bâ€, C and C1, I hold that from the circumstances and facts the Claimant can validly maintain the current action for wrongful dismissal. The issue 1 as formulated by the Defendant is resolved against the Defendant as a consequence. In regard to issue 2 on the policy manual as formulated by Defendant whether the policy manual tendered by the Claimant can be relied on by him. Here I find that the argument that the policy manual in exhibit I is inadmissible by virtue of S. 84 of the Evidence Act on Computer Generated document would not apply here as to the requirement of a certificate to tender same. The Claimant had on the 14th of February 2014 document filed a notice to produce the said Exhibit by the Defendant by Section 91 of the Evidence Act (2011). They did not produce it. There is a presumption regarding existence of certain facts in Section 167 (d) of the Evidence Act (as amended) on the effect of evidence not produced. More so, Section 12 of the National Industrial Court Act (2006) provides, that the Court may its own rule of procedure and shall be bound by the Evidence Act but may depart from it in the interest of Justice. It is in the interest of justice, this being a Labour Matter dealing with the employment relationship and terms between the parties that the staff policy manual be looked in to by the Court, as to its contents to help determine the justice in the case. The Court would rightly in this instant, be departing from the Provision of Section 84 of the Evidence Act. The issue 2 as formulated by the Defendant is determined against the Defendant. I hold that the Claimant can place reliance on exhibit “I†in the circumstances of this case. The argument in the reply on point of law page 2 where MICHELIN V. ALARIBE (Supra) is cited is not the applicable state of the law. As to whether the prosecution of the Claimant is a condition precedent before the Defendant can exercise disciplinary action against him for gross misconduct. On this issue counsel for the Defence submits that the allegation against the Claimant was that of misconduct which was not criminal in nature and the issue of prosecution before dismissal are irrelevant in this proceeding. He relied also on the Supreme Court in DUDUSOLA V. NIGERIAN GAS COMPANY (supra) where the Court held that motive in the exercise of the right of the employer to dismiss an employee was irrelevant. The Claimant had submitted at 4.13 that the Claimant from paragraph 28 of his pleadings and paragraph 30 of his Statement on Oath presented enough facts showing the effort he made to be recalled by the Defendant after his acquittal on the allegation leveled against him, but also led evidence of the resistance of the Defendant and tendered exhibits H and H1 & 2 in proof of the facts. He went on to contend that the Defendant cannot rightly dismiss him without adherence to the terms and conditions as contained in the Defendant’s policy manual. On whether the prosecution of an employee is a condition precedent before an employee can exercise disciplinary action against him/her, the Supreme Court in the case of YUSUFU V. UNION BANK OF NIGERIA (1996) 6 NWLR (pt.457) 632 held that it is not necessary, nor is it a requirement under S.33 of the 1999 Constitution (now Section 36 of the 1999 Constitution) that before an employer summarily dismisses an employee from his services under the common law where the accusation against the employee the employee must be tried before a Court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. The above case was endorsed by the Supreme Court in FRANCIS ARINZE V. FIRST BANK OF NIGERIA LTD (2004) 12 NWLR (pt.888) 663. On the bases of the above decision issue 3 as formulated by the Defendant is determined in the Defendant’s favour. As to issue 2 and 3 and 4 on the letters of dismissal of the Claimant exhibit DA (Dismissal letter dated July 27, 2009, and Exhibit DB can be relied on by the Defendant since he did not plead them and did not frontload them. At the hearing of the suit the Claimant through counsel sought to oppose their tendering and being admitted to evidence. Defendant counsel maintained there that the Court should admit the exhibits because the Claimant had not sought for further and better particulars he mentioned a legal authority a case whose citation and copy of he said on the records that would take an hour to retrieve for the Court’s perusal. Counsel for the Claimant relented on his objection and the exhibits “D†& “DB†were admitted. This was on the 27th November 2014. Counsel for the Defendant in the reply on points of law maintained that the Claimant had waived his right to object on the admissibility of the documents. Counsel for the Claimant at paragraph 4.17 of the address referred to the Provision of Order 9 Rule (1) of the National Industrial Court Rules 2007 which provides: “Where a party served with a complaint and the accompanying documents as stipulated in Order 3 of this rules intends to defend and/or counter claim in the action the party shall not later than 14 days or any other time prescribed for the Defence in the complaint file: A Statement of Defence in the Complaint file List of witnesses Copies of documents to be relied on at the trial Counsel then referred to the Defendant’s processes before the Court, that apart from the Defendant’s Statement of Defence and witness Statement on Oath, there were no other documents accompanying the pleading to show that the Defendant intended to rely on documents at the trial in compliance with order 9. He relied on GAMBARI VS. MAHUD (2010) 11 WRN pg. 162 at pg. 164 Ratio 2, where the Court of Appeal Ilorin held on the purports of the front holding procedure and the effect of non-compliance therewith as follows; per NGWUTA JCA as he was “I do not subscribe to the idea that failure to file a copy of a document pleaded in the Statement of Claim renders the suit incompetent. By implication, the consequence of such failure is that the (Claimant)/Plaintiff will not be allowed to use the document then though it is pleaded. In effect, the omission to annex a copy of the documents pleaded does not amount to such non-compliance with the rules as to affect the validity of the suit but has only the effect of depriving the plaintiff of the use of the documents… even though he pleaded same.†He also relied on ALABI VS. ALABI (2008) ALL FWLR CS LTD VS EKPO (2008) ALL FWLR (pt. 48) 198 SC. Counsel then submits at 4.22 that the Defendant cannot make use of it and as such the Court is robbed of the power to rely on the said exhibits DA and DB these not being frontloaded by the Defendant and urged the Court to disregard and discountenance them. Counsel cites UNIC VS. UCIC LTD (1999) 3 NWLR (pt.593) 17CA. Where it was held that a Court has the power in the course of evaluating evidence to disregard and expunge such document if it finds same was wrongfully admitted. I have had to go through the Statement of Defence of the Defendant and I find at paragraphs 13, 16, and 17 the fact of the Claimant’s dismissal is pleaded, more so at 16 and 17 where it is said to be in line with the company policy. Though the exhibits are not specifically pleaded and a letter of dismissal is neither mentioned. Now, the Claimant in his pleadings had written a letter dated 6th March 2012 and received on 7th March 2012 by the Defendant, the letter was marked as Exhibit G, it is headed : RE: SUSPENSION OF MR. CHUKWU EMEKA UGWU- DEMAND FOR HIS IMMEDIATE RE INSTATEMENT. This letter as at 7th March 2012 did not mention the issue of the Claimant’s dismissal as contained in Exhibit DA dated July 27 2009. The letter Exhibit G dwells solely on suspension not on the need to recall the Claimant to work. The reply to exhibit G, the letter written by the UBA Defendant on the 7th March 2012 marked “without prejudice†is headed: RE: ALLEGED SUSPENSION OF MR. CHUKWUEMEKA UGWU – DEMAND FOR HIS IMMEDIATE RE: INSTATEMENT the letter assured the Claimant that the Bank takes seriously complaints of this nature and seeks to address them promptly. The letter requested the Claimant suspend further action pending the outcome of the investigations of the allegations in exhibit G. A week after exhibit H was written the Defendant wrote Exhibit H1 with the same heading as Exhibits H “and “Gâ€. In it, it referred to the dismissal of the claimant in line with the Banks policy and terms of employment. The letter maintained that employers were not precluded from taking administrative actions in line with the terms of employment, irrespective of any criminal trial before the Court. Now, the Claimant denies being served with Exhibit DA, which I must state here were though admitted will not be relied on by the Court as it was not frontloaded by the Defendant. But the fact remains that the Claimant was dismissed and the Defendant maintains in exhibit H1 that it was in July 2009. On a balance of probability. I hold that it is probable that was the date the Claimant was sacked by the Defendant. I have earlier held that the Defendant has powers to sack its employees because this is a master servant relationship as expressed in the common law or simply as employer and employee in the labour law (parlance) whether there is a criminal prosecution concluded, ongoing or yet to be initiated against the employee. See YUSUFU V. UNION BANK (supra) I hold that the position canvassed by the Claimant’s reliance on SAVANNAH BANK VS. FEKOKWU (2002) 1 NWLR (pt.74a) pg. 544 represents the old jurisprudence. In ARINZE V. FIRST BANK (2004) 12 NWLR (pt.888) at 663 the Supreme Court per Belgore held; “This is a simple case of employee and employer not covered by statutory Rules as in ….. or GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (pt.18) 550. This later case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment. In statutory employment as in private employment, the employer can dismiss in all cases of gross misconductâ€. On issue 3 as formulated by the Claimant on whether the Claimant who did not tender his letter of employment containing the condition of his service can complain of wrongful dismissal from the Defendant employment. At paragraph 4.53 counsel for the Claimant refers to Section 1.8.3, Section 6 subsection 6.2 of the policy manual entitling the Claimant to all process of the disciplinary manual which the Defendant failed to comply with. Again, the law here is that even if an employer in a situation of private employment not governed by statute did not follow such rules as expressed above the Claimant would be only entitled to damages for wrongful dismissal. See NATIONAL ELECTRIC POWER AUTHORITY V. JOHN OJO ADEYEMI (2007) 3 NWLR (pt. 1021) 315. On the measure of damages recoverable in cases of wrongful termination the Court in the above case held that “The measure of damages recoverable in such cases is determined by what the employee would have earned over the period of notice required to properly determine his contract of employment and not salary for a long period of years as was done by the learned trial Judge… The damages payable for any employment that has been wrongfully terminated are not at large. They are circumscribed by the conditions of service…. “Per Akaahs JCA as he was. In this regard reading paragraphs 4.50 to 5.02 apart from the Sections of exhibit I mentioned in 4.53 the Claimant through counsel did not mention what he is entitled to under this exhibit. It is not the Courts business to peruse through a document to see what the Claimants entitlements are if at all. This document seems to have been dumped on the Court. Looking at the various heads of claim of the Claimant Exhibit I is not linked or implicated if at all mentioned in specific detail. On the effect of merely placing before the Court evidence which is not linked specifically to the claim the Court held in E.I. B BUILDING SOCIETY LTD V. ADEBAYO (2003) 11 NWLR (pt. 832) J22 that “ a Judge should not be an inspector of accounts who must probe the book unaided.†On the whole issues 1, 2, 3, and 4 formulated by the Claimant in his written address for determination are resolved against him in the light of the above holdings of law and findings of fact. The claim of the Claimant is dismissed there are no awards as to costs. ___________________________ HON. JUSTICE E. D. E. ISELE JUDGE