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REPRESENTATION Nick Omeya, with S. O. Uzuh, for the claimant. Miss Dooshima Mayange, with Bemdoo P. Asan,, for the defendant. JUDGMENT 1. This case started as a suit filed on 15th December 2011 against Oceanic Bank International Plc; but by an order of this Court granted on 22nd March 2012, the defendant was changed to Ecobank Nigeria Plc. During the pendency of this suit, by an order of this Court, the claimant amended his statement of facts with the most recent being the 2nd amended statement of facts of 4th April 2016 seeking the following reliefs: (1) A declaration that the summary dismissal of the claimant by the defendant was mala fide and constitutes a breach of contract between the claimant and the defendant. (2) A declaration that the claimant is entitled to the following benefits: Particulars: (a) 6 weeks’ salary for three completed years of service N2,115,000.00 (b) One month salary in lieu of notice N470,000.00 (c) Outstanding leave allowance N70,000.00 (d) Staff savings and investment trust fund N2,100,000.00 TOTAL N4,755,000.00 (3) An order of this Court nullifying the claimant’s summary dismissal. (4) The sum of N4,755,000.00 which represents the total sum of the claimant’s entitlements. (5) General damages of N50,000,000.00 for wrongful and injurious dismissal. (6) Cost of this suit as may be assessed by the Court. 2. The defendant entered a conditional appearance and filed its statement of defence and all other relevant processes all dated 31st January 2012 as well as all documents to be relied upon at the trial of this suit. Pursuant to the claimant’s 2nd amended statement of facts, the defendant filed a consequential amended statement of defence and counterclaim on 14th July 2016. In response to the defendant’s statement of defence and counterclaim, the claimant filed a reply to defence and defence to counterclaim. 3. By the defendant’s amended statement of defence and counterclaim filed on 14th July 2016, the defendant counterclaimed against the claimant as follows: (a) The sum of N5,394,464.59 being the amount owed the defendant/counterclaimant by the claimant/defendant to counterclaim. (b) Interest at the rate of 21 % per annum on the said N5,394,464.59 from the 19th day of March 2013 till date of delivery of judgment. (c) Interest at the rate of 10% per annum on the total judgment sum till the final payment of the entire judgment sum. (d) The sum of N500,000 being the cost of litigation of this suit. 3. At the trial, the claimant testified on his own behalf as CW; while Francis Dehinbo, a Human Resources Officer of the defendant bank testified as DW for the defendant. At the close of trial, the Court ordered for written addresses to be filed by the parties starting with the defendant. The defendant filed its written address out of time and filed a motion to regularize it. But because the defendant was in breach of an order as to cost awarded against it by the Court on 11th May 2017, the defendant was barred in accordance with Order 38 Rule 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 from taking any further part in the proceedings. The motion for regularization of the accompanying final written address could not be thus moved and so was struck out. What this Court is thus left with is the claimant’s final written address dated and filed on 19th September 2017. THE CASE OF THE CLAIMANT 4. To the claimant, he was an employee of the defendant, formerly known as Oceanic Bank Plc, referring to the letter of employment dated May 18, 2007 (Exhibit C1). That his duties include soliciting for deposit from the public, maintaining relationship with customers of the defendant as well as recommending loan facilities to interested customers of the defendant. That his employment status was confirmed by the defendant vide a letter dated August 25, 2008 (Exhibit C2). That he was very diligent at his work to the satisfaction of the defendant. Based on satisfactory discharge of his assigned tasks, the defendant vide a letter dated November 1, 2010 (Exhibit C3) promoted the claimant to the position of senior officer. That it is usual for the claimant in the usual course of his business to recommend customers for loan facilities; such recommendation will usually pass through the defendant’s approval hierarchical chains and in all such recommendations, the defendant’s management has the discretion to grant and/or refuse to grant the facility. That in his capacity as the relationship officer to Akaeze Ventures Enterprises, a customer of the defendant, he recommended the said customer for a credit facility to finance the purchase of 12,500 metric tons of rice to the tune of USD6,875,000.00. The internal memo dated 20th February 2008 (Exhibit C4) through which the claimant recommended the said customer for the facility was signed and approved by all the relevant approving authority hierarchical chains of the defendant including the Managing Director of the defendant. The said customer as security for the facility, provided a property along international airport road registered as 55/55/1656. The defendant instructed the law firm of F. B. A. Nabena & Co to conduct search on the property of which a search report (Exhibit C5) was issued. Paragraph 12 of the search report advised the defendant to engage the services of a registered surveyor who should go to the site to ascertain the size of the remaining unsold portion and to also compare it with the survey plan on the registered deed before further transaction on the property. 5. The claimant went on that out of diligence he engaged a registered surveyor in the person of Oyewale Aderati to determine the actual size of the property. A revised survey plan (Exhibit C14) was concluded before the claimant forwarded the legal mortgage documents to the legal department unit of the defendant vide internal memo dated October 7, 2009 (Exhibit C15). By email dated November 5, 2009, (Exhibit C16) the legal unit of the defendant confirmed to the claimant that the legal mortgage documents were awaiting execution by a Director of the defendant. That the defendant having satisfied itself on the viability of the transaction disbursed the sum of N380,000,000.00 to Akaeze Ventures Enterprises for the purchase of 2,500 metric tons of rice. When the rice arrived at the Onne Port in Port Harcourt, the customer was unable to raise money for the payment of the statutory customs duty and clearing cost. To mitigate the defendant’s exposure, the claimant through the branch requested for a temporary overdraft in favour of the customer in the sum of N160,754,629.22 vide a memo dated October 14, 2009 (Exhibit C6) to enable the customer clear the consignments. That the claimant’s request from the branch passed through the regional and zonal levels but was frustrated at the Directorate levels outside the powers of the claimant. That the claimant in concert with the Ajao Estate branch of the defendant initiated a proactive move to have the consignment sold to an off-taker. The claimant even went as far as getting one Alhaji Gbadamosi, a well known rice merchant who was willing and ready to buy the entire consignment. The said Alhaji Gbadamosi indicated interest to purchase the rice vide a letter dated 13th October 2009 (Exhibit C20) addressed to the defendant. The defendant on its own carried out due diligence on the said Alhaji Gbadamosi as shown in the internal memo dated October 14, 2009 (Exhibit C19). However, for whatever reasons unknown to the claimant, the defendant refused to sell to the said Alhaji Gbadamosi. That the defendant alluded to this fact at paragraph 17 of its investigation report of January 27, 2010 (Exhibit D6). 6. The claimant continued that at an all parties zonal meeting of December 18, 2009, it was agreed inter alia, that the defendant should appoint its own clearing agent for the clearing, haulage and storage of the goods in a nominated warehouse in Owerri. The minutes of the meeting of December 18, 2009, is marked Exhibit C7. Kipelo International Limited was nominated by the defendant to handle the clearing, haulage and storage of the goods in a nominated warehouse at Owerri in consonance with the Audit Control and Expertise (ACE). However, that the haulage agreement with the clearing agent was altered by the regional manager and zonal head. The claimant’s email of 18th December 2009 sent at 12.25pm to the management included haulage cost of N15,990,000 (Exhibit C17). However, that this request was declined, thereby necessitating another email sent by 6.04pm on 18th December 2009 at the instance of the regional manager less the cost of haulage. This second request was eventually approved by the General Manager and Group Head of the Enterprise and Risk Management on 21st December 2009 on which basis the claimant processed disbursement to the clearing agent accordingly. The emails of 18th and 21st December 2009 are marked Exhibit C18. Consequently, and based on the removal of the haulage cost, that the clearing agent only cleared the goods but did not haul the goods as the defendant failed to pay for the cost of haulage contrary to the arrangement reached at the all parties meeting of December 18, 2009. That this development gave the customer control over the haulage of the goods in the course of which the goods were diverted. The claimant then referred to paragraphs 20, 21, 22 and 23 of the internal memorandum of January 27, 2010 (Exhibit D6) as being very germane and reflecting the cause that led to the diversion of the goods. 7. The claimant proceeded that upon the diversion of the goods, the defendant reported him to the police; he was extensively investigated by the Nigeria Police special fraud unit and was found to be innocent as no charges were preferred against him. After the conclusion of the investigations by both the Police and the defendant’s control group as shown in Exhibit D6, the claimant continued to perform his functions to the satisfaction of his superior hence his promotion vide letter dated 1st November 2010 (Exhibit C3). That in the promotion letter, the defendant clearly articulated the rationale for promoting him in the following words: “Your promotion is in recognition of your performance. It also represents management’s confidence in your ability to perform excellently on your new grade with its attendant responsibilities”. The claimant urged the Court to note that Exhibit C3 was dated 1st November 2010, ten months after the defendant had concluded investigation on the diverted goods as can be seen from the investigation report dated January 27, 2010 (Exhibit D6). That the claimant was surprised to receive an internal memo dated 7th January 2011 (Exhibit C8) inviting him to appear before the disciplinary committee with respect to allegation of poor management of facilities “availed to Akaeze Ventures”. That on 17th January, 20011 the defendant vide Exhibit C9 dismissed the claimant from its services “for gross negligence and incompetence causing heavy financial loss to the bank” thus bringing to an abrupt end the claimant’s promising banking career. The claimant accordingly filed this action seeking the reliefs he prays for. THE CASE OF THE DEFENDANT 8. To the defendant,the claimant till his dismissal that led to the commencement of this suit was in the employment of the defendant, having been employed by the defendant via the letter of appointment of 18th May 2007. That the claimant’s appointment was subsequently confirmed on the 25th of August 2008 and was thereafter promoted via the letter of promotion dated 1st November 2010. That the claimant whose duty inter alia was to recommend loan facility to interested customers of the defendant, being the relationship officer for Akaeze Ventures Enterprise, did recommend the customer for a credit facility to finance the purchase of 12,500 metric tons of Thai Long Grain Parboiled Rice to the tune of $6,875,000.00USD (Six Million Eight Hundred and Seventy-Five Thousand US Dollars) only and thereafter, also applied for a Temporary Overdraft (TOD) facility for the sum of N160,745,692 (One Hundred and Sixty Million, Seven Hundred and Forty-Five Thousand Six Hundred and Ninety-Two Naira) only via a letter of 14th October 2009. That despite the defendant’s huge investment in the importation business of the Akaeze Ventures Enterprise, upon the arrival of the goods at the port, technical lapses from the activities of the defendants’ staff amongst whom was the claimant following the defendants’ Investigation Report of 27th .January 2010 and before the defendant could ensure the safety of the goods, it was carted away from the port and thus the defendant lost its investment. That the defendant setup a committee to investigate the activities and involvement of her staff in the transaction that led to the huge financial loss to the defendant and thereafter setup a Disciplinary Committee to look into activities of her staff (amongst whom was the claimant) that contributed in the defendant’s financial loss in respect of the loan facility given by the defendant to one of her customers Akaeze Ventures Enterprise to whom the claimant herein was the relationship officer. That the claimant who appeared before the Disciplinary Committee was found guilty of gross negligence and incompetence in handling the transaction, hence his dismissal from the employment of the defendant in accordance with Employees’ Handbook of the defendant. That the claimant being dissatisfied with the termination of his employment approached this Court for a declaration that his termination was wrongful having not been in compliance with the Employees’ Handbook and an order for reinstatement amongst other claims. THE SUBMISSIONS OF THE CLAIMANT 9. The claimant submitted four issues for determination, namely: (1) Whether the summary dismissal of the claimant by the defendant was wrongful and amounts to breach of the contract between the claimant and the defendant. (2) If the answer to issue number one above is answered in the affirmative, whether the claimant is entitled to the sum of N4,755,000.00 and general damages of N50,000,000.00. (3) Whether this Court has the jurisdiction to entertain the subject matter of the defendant’s counterclaim. (4) Whether the defendant proved its counterclaim as required by law. 10. Regarding issue (1), the claimant submitted that his summary dismissal by the defendant was wrongful and amounts to breach of the contract between him and the defendant. That he was dismissed for gross negligence and incompetence. Firstly, that the Employee Handbook (Exhibit C10) did not stipulate that gross negligence and incompetence is punishable by dismissal. Secondly, the summary dismissal was unjustified given the circumstances that transpired whilst the claimant was in the defendant’s employment. That he was dismissed as a result of the facility granted to one Akaeze Ventures (the defendant’s customer) for the importation of 2,500 metric tons of rice. That he, as the account officer, recommended the said Akaeaze Ventures for the facility. In the instant case, he is challenging his summary dismissal by the defendant vide Exhibit C9. That it is trite that dismissal is the highest form of punitive exit from employment which is quite different from termination of' employment, citing First Bank of Nigeria Plc v. Kenneth Mmeka [2015] 6 NWLR (Pt. 1456) 507 at 520. That in dismissing the claimant, the claimant was denied his terminal benefits, which is what usually happens to a dismissed employee. That the law is settled that an employee who approaches the Court to hold that he was wrongly dismissed must establish the terms and conditions governing his employment, citing Ibekwe v. Imo State Education Management Board [2009] 5 NWLR (Pt. 1134) 234 at 252, Organ & 14 ors v. Nigeria Liquified Natural Gas Ltd & anor [2013] 16 NWLR (Pt. 1381) 506 SC at 537 and Texaco (Nig) Plc v. Kehinde [2001] 6 NWLR (Pt. 708) 224 CA at 236. That he placed before this Court his letter of employment dated May 18, 2007 (Exhibit C1), confirmation of appointment letter dated August 25, 2008 (Exhibit C2), letter of promotion dated November 1, 2010 (Exhibit C3), and the Employee Handbook (Exhibit C10) to establish that he was an employee of the defendant as well as the terms and conditions that governed his employment whilst in the defendant’s service. Specifically, that the Employee Handbook (Exhibit C10) broadly covers the terms and conditions governing the employment between him and the defendant. 11. The defendant had by letter of dismissal dated 17th January, 2011 (Exhibit C9) dismissed the claimant for “gross negligence and incompetence causing heavy financial loss to the Bank”. To the claimant, the Employee Handbook (Exhibit C10) at pages 23 to 26 clearly and expressly stipulates the offences that would warrant termination, dismissal and advice to resign. In respect of the offences that would warrant dismissal, that in nowhere does the Employee Handbook state, whether expressly or impliedly, that the offence of “gross negligence and incompetence causing financial loss” shall be punishable by dismissal. The offences that would warrant dismissal are clearly stated in the Employee Handbook. That the defendant in its amended statement of defence, contended that it acted in consonance with the contractual terms of the employment contract by issuing the dismissal letter dated 17th January 2011 but failed to pinpoint the exact section in the Employee Handbook where it is stipulated that the offence of “gross negligence and incompetence causing financial loss” is punishable by dismissal. That in the absence of any provision in the Employee Handbook empowering the defendant to dismiss the claimant for the offence of “gross negligence and incompetence causing financial loss”, the summary dismissal of the claimant was wrongful and thus amounts to a breach of the contract between the claimant and the defendant, urging the Court to so hold. 12. Apart from being in flagrant breach of the terms and conditions stipulated in the Employee Handbook, the claimant also submitted that the dismissal was unjustified in the light of the circumstances under which he was dismissed. This is because the reasons for the dismissal as stated in the letter of dismissal dated 17th January 2011 (Exhibit C9) could not be justified/substantiated/established by the defendant in its statement of defence, citing Shell Petroleum Dev. Co. Ltd v. Olarewaju [2008] 18 NWLR (Pt. 1118) 1 SC at 19 – 20, which held that where an employer gives a reason or cause for dismissing an employee, the law imposes on him a duty to establish the reason to the satisfaction of the Court; and NEPA v. Adeyemi [2007] 3 NWLR (Pt. 1021) 315 CA at 331 and 332. That in its amended statement of defence, the defendant in an unsuccessful attempt to justify and/or substantiate the alleged gross negligence and incompetence contended that the financial loss which arose from the facility granted to Akaeze Ventures Enterprises was due to the claimant’s unruly behaviour, lackadaisical, nonchalant attitude, lack of due care, gross negligence and incompetence as an account officer to Akaeze Ventures. In reaction, the claimant referred to paragraph 6 of the 2nd amended statement of facts, wherein he averred that it is usual for the claimant in the normal course of his duties to recommend customers for loan facilities which recommendation will pass through the defendant’s approval hierarchical chain; and in all such recommendations, the defendant’s management has the final discretion to grant or refuse the facility. That the defendant did not deny this particular averment in its amended statement of defence, referring the Court to paragraph 1 of the defendant’s amended statement of defence. That the legal consequence of such admission is that the facts pleaded in the said paragraph 6 of the 2nd amended statement of facts are taken as established, citing Adusei v. Adebayo [2012] 3 NWLR (Pt. 1288) 534 at 558. To the claimant, it follows that he cannot be punished with dismissal in respect of any facility that has management’s approval with or without financial loss, in so far as such facility was authorized by the defendant. That the claimant only had power to recommend the granting of a facility to a customer of the defendant whilst the decision of whether to approve or decline such recommendation rested with the defendant’s top management. The claimant proceeded to narrate his case as has been done in paragraphs 4 to 7 above of this judgment; and the submitted that the defendant simply did not have any reason for not selling the consignment to the said Gbadamosi and as such the evidence of the defendant’s witness in paragraph 12 of the statement on oath that the veracity of the sale to Gbadamosi was in doubt does not hold water, referring the Court to paragraph 7 of the claimant’s further written statement on oath dated 20th September 2016. 13. The claimant continued that it is pertinent to note that after first declining the recommendation of the claimant made vide Exhibit C6, the goods could still not be cleared by the customer, thereby prompting the claimant to seek a temporary overdraft of N196Million in favour of the customer for the clearing of the goods vide internal memo dated November 25, 2009 (Exhibit D2). That the recommendation of the claimant vide memo dated November 25, 2009, was eventually approved by the defendant. To the claimant, the defendant’s approval of N196,000,000.00 after over one month of declining the claimant’s initial recommendation of N160,754,629.22 made vide Exhibit C6 reinforces the claimant’s competence and due diligence; and reaffirms the defendant’s ineptitude and frustration as each passing day of failure to take the right business decisions further destroyed the transaction as the consignments were accruing demurrage on a daily basis at sea due to no fault of the claimant. 14. To the claimant, from the plethora of the documentary evidence before the court, and oral testimony of the claimant, it is very clear that the claimant was quite professional in the manner in which he discharged his official duties to the defendant. That it is also pertinent to note that the claimant was investigated extensively by the law enforcement agencies at the instance of the defendant, yet no criminal action was initiated against the claimant, thereby further substantiating the fact that the claimant was innocent of any wrongdoing. Again, that evidence clearly shows that after the incident of the diversion and the conclusion of investigation by the defendant on the matter vide investigation report dated January 27, 2010 (Exhibit D6), the claimant was promoted vide letter dated November 1, 2010 (Exhibit C3). In the said Exhibit C3, the defendant alluded to the claimant’s outstanding performance in the following words: “Your promotion is in recognition of your performance. It also represents management’s confidence in your ability to perform excellently on your new grade with its attendant responsibilities”. That the fact that the claimant was promoted long after the diverted rice incident is clear evidence that the claimant was not grossly negligent and incompetent in relation to the facility granted to Akaeze Ventures. In fact, that Exhibit C3 is an admission by the defendant to the effect that claimant was very competent. It clearly destroys the allegation of gross negligence and incompetence levelled against the claimant by the defendant, citing Adusei v. Adebayo [2012] 3 NWLR (Pt. 1288) 534 at 558. 15. Furthermore, that the letter of promotion coupled with the fact that no criminal proceedings was instituted against the claimant makes the report of the disciplinary committee dated January 11, 2011 (Exhibit D1) lack any probative value. This is because the law does not allow any person to approbate and reprobate at the same time over an issue. Also, that the constitution of the disciplinary committee panel is questionable as it violates the established principles of natural justice, citing Shell Petroleum dev. Co. Ltd v. Olarewaju [2008] 18 NWLR (Pt. 1118) 1 at 20. That looking at Exhibit D1, it is obvious that Mrs. Deborah Okunjemirua, one of the members of the disciplinary committee that recommended the claimant’s dismissal, was one of those indicated to be under investigation in Exhibit D6. In fact, that Mrs. Deborah Okunjemirua is listed as No.1 amongst persons under investigation in Exhibit D6. That it surely raises an eyebrow where a person that was being investigated alongside the claimant in respect of the same transaction, becomes a member of the disciplinary committee that passed the verdict of dismissal against the claimant. That such a scenario raises the risk of prejudice to the highest level. It clearly indicates the element of bias which in a nutshell substantiates the claimant’s case that he was made a scape goat to please the top echelon of defendant’s management. For this reason, the claimant submitted that the disciplinary committee that passed the verdict of dismissal against him breached the rules of natural justice as the said Mrs. Deborah Okunjemirua was a judge over a matter in respect of which she was also under investigation, referring to Shell Petroleum Dev. Co. Ltd v. Olarewaju (supra) at 23, which held thus: “In cases of this nature 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”. In the instant case, that the risk of prejudice is enough to nullify the verdict of the disciplinary committee, urging the Court to so hold. 16. Further still, that looking at Exhibit D1, the members of the committee that passed the verdict of dismissal against the claimant did not sign the disciplinary committee report as required by law. That it is settled law that a report which emanates from a disciplinary committee must be signed by all the members of the committee, if not the report will be null and void. The claimant concluded by submitting that his summary dismissal was wrongful and constitutes a breach of the contract between him and the defendant even that the defendant was unable to justify/substantiate/establish the reasons for dismissing him, citing Institute of Health Ahmade Bello University Hospital Management Board v. Mrs Jummai Anyip [2011] 12 NWLR (Pt. 1260) 1 at 19. The claimant the urged the Court to resolve issue (1) in his favour. 17. For issue (2) i.e. whether he is entitled to the sum of N4,755,000.00 and general damages in the sum of N50,000,000.00, the claimant answered in the affirmative if the Court comes to the conclusion that the claimant’s dismissal was wrongful, referring to Texaco (Nig) Plc v. Kehinde [2001] 6 NWLR (Pt. 708) 224 at 242. That in the instant case, the claimant testified that while he was a senior officer in the services of the defendant, his monthly salary was N470,000.00. That he testified that had he not been unjustly dismissed, he would have been entitled to one month salary in lieu of notice of termination in the sum of N470,000 (article 2.8.1 of Exhibit C10), six weeks’ salary for each of the completed years of service in the sum of N2,115,090.00 (article 2.8.3 of Exhibit C10) and outstanding leave allowance on pro rata basis for year 2011 in the sum of N70,000 (article 3.3 of Exhibit C10). That he also testified that during the course of his employment, the defendant made monthly deductions of N50,000 for forty-two months from his salary and was remitting the said amount into the defendant’s Staff Savings and Investment Trust Fund, a form of deduction introduced by the defendant pursuant to Article 3.4.3 of the Employee Handbook (Exhibit C10). That he further testified that upon his dismissal, the defendant failed to refund to him the sum of N2,100,000 which is the total amount remitted into the said Staff Savings and Investment Trust Fund, referring the Court to paragraphs 30 - 33 of the claimant’s written deposition of 4th April 2016. 18. To the claimant, these material facts were pleaded in paragraphs 30 - 33 of the claimant’s 2nd amended statement of facts, which the defendant did not really join issues with. That the defendant, for instance, did not state or disclose the amount it was paying to the claimant as monthly salary prior to the summary dismissal; rather the defendant was completely evasive with respect to all the amounts pleaded by the claimant in those paragraphs. We submit that the Defendant did not join issues with the Claimant on those material averments. Also, that the claimant was not contradicted on these material facts by the defendant via cross-examination. That in response to the material averments in paragraphs 30 - 33, the defendant simply averred in paragraph 31 of its statement of defence as follows: “The Defendant denies paragraphs 30, 31, 32, and 33 of the 2nd amended statement of facts and puts the Claimant to the strictest proof”. The claimant referred to NBC Plc v. Ubani [2014] 4 NWLR (Pt. 1398) 421 SC at 455 - 457, where it was held that the silence of a defendant on a pleaded issue both in terms of the defendant’s pleadings and at the trial is to be deemed as an admission of the issue since it is the principle of pleading that the defendant admits or denies what the plaintiff has expressly alleged in his statement of claim or be deemed as having admitted the same. To the claimant, when his monthly salary and other entitlements are added together, it would amount to a total of N4,755,000.00, being the amount the defendant would have paid him if it had simply terminated the claimant’s employment. The claimant, therefore, urged the Court to order the defendant to pay him the sum of N4,755,000, representing his salary and other entitlements in accordance with the terms and conditions in Exhibit C10. 19. On the issue of general damages of N50,000,000, that it is true that in assessing the award of damages in a case of wrongful dismissal, Nigerian Courts have held that the only remedy available to the employee is the award of salary and other benefits that he would have earned if the breach had not occurred. That these decisions are based on the English common law, which does not recognize the award of general damages in labour law. That until lately, the common law would not award general damages for injured feelings as a result of loss of employment, or the manner of dismissal, citing Addis v. Gramophine Co. [1909] AC, 488. That it is this old common law of many decades ago that our superior Courts had applied or adopted before the promulgation of the National Industrial Court Act and Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. That this common law position has since changed in England, citing Malik v. Bank of Credit & Commerce Int’l SA (in liq) [1997] 3 All ER 1, where the House of Lords held that employees are entitled to general damages if they can establish that their employer’s wrongdoing is so publicized that their prospects of obtaining fresh employment are blighted. In that case, there was evidence that the respondent carried on its banking business in a dishonest and unprofessional manner. Upon liquidation, the plaintiffs were unable to gain fresh employment because of the stigma attached to them as former employees of the bank. The House of Lords held that there was a trust and confidence to be implied into contracts of employment such that an employer should not conduct himself in a manner likely to destroy or seriously damage an employee’s future employment prospects and thereby cause him financial loss. The affected employees were awarded a princely sum which includes compensation for financial loss suffered by reason of a breach of contract and flowing from damages to reputation. 20. To the claimant, also worthy of note is the English Court of Appeal decision in Jarvis v. Swan Tours [1973] QB 233 at 238, where a holiday maker recovered damages with Lord Denning accepting that, “...damages can be given for the disappointment, the distress, the upset and frustration caused by the breach”. That in Cox v. Philips Industries Ltd [1976] 3 All ER 161, the view was taken that damages are recoverable where the parties contemplate that frustration, annoyance and disappointment may be suffered as a result of the breach. That this formulation is the basis of the emergence of an implied obligation of mutual trust and confidence between the parties, the breach of which gives rise to compensatory consequences, citing United Bank v. Akhtar [1989] IRLR 507 and Imperial Group Pension Trust v. Imperial Tobacco [1991] 1 CR 524. That in view of these authorities, it is evident that there are grounds for awarding general damages against an employer who terminates an employment contract in such a manner that the employee would be stigmatized in the job market or where the manner of such dismissal breaches the implied obligation of mutual trust and confidence; the same principle applies where a person’s job prospects are diminished by the manner of the dismissal. Furthermore, that these decisions are decisions delivered by Courts of foreign jurisdiction, notably England. That the question is whether this Court is at liberty to follow these decisions, notwithstanding the decisions of our own appellate Courts that have stuck to the age long and outdated common law principle. The claimant answered in the affirmative given section 254C(1)(f) and (h) of the 1999 Constitution. 21. The claimant then submitted that it is now the law in international labour law that an employee can recover general damages for wrongful dismissal if he can show or prove that the manner in which he was dismissed has jeopardized his chances of securing employment elsewhere. That it is also the law in international labour law that an employer can recover general damages against the employer for breach of the implied obligation of mutual trust and confidence contemplated by the parties at the time the employment contract was created because it is expected that parties would honour their agreement and not do anything that would affect each other’s earning prospects. That this position is now settled in Britain, a country where Nigeria borrowed the common law doctrine from, and it is accepted at the international level as best practices in labour law vis-a-vis labour standards. That applying the above international labour standards/best practices to the instant case, the claimant deserves more than the award of N4,755,000.00. In this regard, the claimant referred to paragraph 28 of the claimant’s 2nd statement of facts, and paragraph 28 of the claimant’s written deposition sworn to on 14th April 2016. That the claimant has given evidence of the fact that he was unable to secure another banking job with Diamond Bank Plc as a result of his dismissal; thus the defendant by its action had put the claimant’s reputation in doubt and destroyed his promising banking career. That the defendant didn’t care about the outcome of its action on the claimant nor the devastating effect its action would have on the claimant’s future employment prospects with other banks. It is thus the claimant’s submission that he is entitled to the sum of N50,000,000.00 as general damages for the unjustified summary dismissal, citing section 19(d) of the National Industrial Court (NIC) Act 2006 which permits this Court to make an award of compensation or damages in any circumstance contemplated by law in terms of the jurisdiction of the Court. That the combined effect of sections 19(d) of the NIC Act 2006 and 254C(1)(f) and (h) of the 1999 Constitution is that the NIC Act further mandates this Court to award compensation or damages in circumstances contemplated by section 254C(1)(f) & (h) of the 1999 Constitution, which is the jurisdiction of this Court to apply international labour standards including but not limited to the award of award of general damages in deserving cases such as the instant case. Finally, that if granted, the N50,000,000.00 would adequately compensate the claimant for all that he has suffered due to the irresponsible attitude of the defendant, urging the Court to resolve issue (2) in favour of the claimant. 22. In answer to issue (3), the claimant submitted that this Court does not have the jurisdiction to entertain the subject matter of the defendant’s counterclaim, citing Ohakim v. Agbaso [2010] 19 NWLR (Pt. 1226) 172 at 216. That the subject matter of the defendant’s counterclaim is the recovery of debt in the sum of N5,394,464.59 with interest. That the jurisdiction of this Court is as prescribed in section 254C(1) of the 1999; referring also to Coca-Cola (Nig) Ltd v. Akinsanya [2013] 18 NWLR (Pt. 1386) 255 CA at 366. That a careful reading of the entire gamut of the Third Alteration Act, clearly shows that this Court is not seised with the jurisdiction to entertain claims relating to recovery of debts arising from loan agreements, urging the Court to so hold. That based on the facts pleaded in the counterclaim, the defendant granted the purported loan facility to the claimant when the claimant was still in the employment of the defendant. In this regard, that it is immaterial that the said loan was granted in the course of employment. That the position of the law is that contract of employment is separate and distinct from a contract of personal loan, citing Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 at 346 - 347, where the Supreme Court held as follows: “…contract of employment and personal loans between the appellant and the respondent are two distinct contracts having distinct subject matters and their duration not coexistent nor can it be said one is dependent on the other or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment of the personal loan or balance thereof”. That a contract of employment clearly falls within the ambit of labour matters and/or industrial related matters, over which this Court has jurisdiction. However, contracts of personal loan cannot by any stretch of imagination be categorized as labour/industrial related matter. The claimant, therefore, submitted that this Court is not clothed with the jurisdiction to adjudicate over the subject-matter of the defendant’s counterclaim, it being a claim outside contract of employment. 23. The claimant went on that apart from the subject-matter of the defendant’s counterclaim not falling within the jurisdiction of this Court, this Court cannot adjudicate over the said counterclaim because it is clearly incompetent. That the defendant had earlier filed an application dated 30th October 2013, seeking leave of Court to amend its statement of defence and counterclaim, which the claimant opposed vide a counter-affidavit dated 6th May 2014. In opposing the defendant’s application for amendment, the claimant argued inter alia that the first statement of defence filed by the defendant did not include a counterclaim. The claimant also argued that the defendant’s motion for amendment was a trick designed to surreptitiously introduce a counterclaim for the first time without an application to regularize the counterclaim and in respect of which necessary default fees were not paid. That on 10th February 2015, this Court delivered its ruling and dismissed the defendant’s motion dated 30th October 2013. That in the said ruling, this Court agreed with the submission of the claimant that the defendant cannot include a counterclaim without first paying the necessary default fees since same was not filed along with the initial statement of defence. Surprisingly, that the defendant filed another amended statement of defence and counterclaim dated 14th July 2016 without any application to regularize the said counterclaim despite the subsisting ruling of this Court delivered on 10th February 2007. That the provisions of the National Industrial Court Rules 2007 (the Rules of Court in existence when this suit was filed) in Order 9 Rule 1 of the National Industrial Court Rules 2007 provides that where a party served with a complaint and the accompanying documents as stipulated in Order 3 of these rules intends to defend and/or counterclaim in the action, the party shall not later than 14 days or any other time prescribed for defence in the complaint file a statement of defence and counterclaim (if any), list of witnesses, copies of documents to be relied upon at the trial. That it is very obvious that the period limited by the Rules within which the defendant/applicant may file its counterclaim has long expired. But instead of bringing an application for extension of time within which to file its counterclaim, and pay the necessary default fees, the defendant in flagrant disregard to the Rules of Court included a “counterclaim” in its amended statement of defence dated 14th July 2016. That it is trite law that a counterclaim is a cross-action and not merely a defence to the claim. It is an independent action and not part of the original action, referring to Oyegoke v. Hamman [1990] 4 NWLR (Pt. 143) 197 at 199 Ratio 7 and Dabup v. Kolo [1993] 4 NWLR (Pt. 317) 254 at 261 Ratio 11. Accordingly, that the defendant has failed to satisfy the condition precedent for the regularization of its counterclaim, to wit: payment of the necessary default fees. Also that the defendant’s counterclaim was not brought by due process of law, urging the Court to dismiss the defendant’s counterclaim. 24. In answer to issue (4), the claimant submitted that the defendant has not proved its counterclaim as required by law. That the defendant’s counterclaim is for the recovery of the sum of N5,394,464.58 arising from the loan facility it granted the claimant. That in his defence to the counterclaim, the claimant denied all the material averments in the defendant’s counterclaim, thus putting the defendant to the strictest proof thereof. That the onus is on the defendant to prove that there was indeed a loan contract between it and the claimant. That it is settled law that in civil cases the burden of proof is on the party who asserts and the standard of proof in civil cases is on the balance of probabilities, citing section 131(1) of the Evidence Act 2011, Phillips v. EOC & Ind Co. Ltd [2013] 1 NWLR (Pt. 1336) 618 at 641 and Olusanyea v. Osinleye [2013] 7 NWLR (Pt. 1367) 148 at 171. That at the trial of this suit, the defendant failed to place the offer letter for the facility it purportedly granted the claimant before the Court. That it is settled law that in an action to recover a debt arising from loan contracts, the offer letter governing the terms and conditions of the facility must be placed before the Court. The claimant, therefore, submitted that the defendant’s counterclaim is not sustainable since the defendant has failed to discharge the onus of proof. In conclusion, the claimant urged the Court to enter judgment in his favour and grant all the reliefs he seeks as per his 2nd amended statement of facts and dismiss the defendant’s counterclaim. COURT’S DECISION After a careful consideration of the processes and submissions of the parties, I need to first resolve the issue of the evidential value of Exhibits C6 and D1. Exhibit C6 dated October 24, 2009 is an internal memorandum from Ajao Estate Branch of Oceanic Bank International Plc to MD/CEO and has as subject “Position Paper - Akaeze Ventures Enterp 0841201004875”. It is not signed by the approving authority, John Aboh GMD/CEO. To the extent that Exhibit C6 was not signed by the approving authority, it remains what it is - a mere recommendation. Nothing else! I so find and hold. Exhibit D1 on its part is titled, “Summary of Cases Reviewed by the Disciplinary Committee (35th Sitting) - January 11, 2011” and has a list of 10 members of the Committee and the summary of deliberations. It is not signed and appears to be an incomplete document consisting of only two sheets. In this regard, the claimant had argued that from Exhibit D1, the members of the committee that passed the verdict of dismissal against him did not sign the disciplinary committee report as required by law; and that it is settled law that a report which emanates from a disciplinary committee must be signed by all the members of the committee, if not the report will be null and void. As a document evidencing deliberations of a disciplinary committee, Exhibit D1 ought to be signed. The law is that a document which ought to be signed, if not signed, its authorship and authenticity become doubtful and so has no evidential value. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47, Sarai v. Haruna [2008] 23 WRN 130, Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Given that Exhibit D1, which ought to be signed, is not signed, it has no evidential value whatsoever. I so find and hold. This means that the argument of the claimant that from Exhibit D1, Mrs. Deborah Okunjemirua, one of the members of the disciplinary committee that recommended his dismissal, was one of those indicated to be under investigation in Exhibit D6, cannot be entertained as it is unsubstantiated. Given the reliefs the claimant is claiming, the case of the claimant relates to two broad reliefs: the claim to nullify his dismissal; and monetary claims, which include the claim for entitlements, general damages and cost. I shall take the claim for nullification of the dismissal first, which is reflected in reliefs (1) and (3) - respectively the declaration that the dismissal is male fide and so a breach of contract; and the order for the nullification of the dismissal. By Ziideel v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554 SC; [2007] 1 – 2 SC 1, an employee who complains that his employment has been wrongfully terminated has the onus to place before the Court the terms of the contract of employment, and prove in what manner the said terms were breached by the employer. The case went on that it is not the duty of the employer as a defendant to prove any of these facts. See also Morohunfolu v. Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 SC, Ningi v. FBN Plc [1996] 3 NWLR (Pt. 435) 220 CA, Katto v, CBN [1999] 6 NWLR (Pt. 607) 390 SC, Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 CA, Igbinovia v. UBTH [2000] 8 NWLR (Pt. 667) 53 CA, Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA, Okoebor v. Police Council [2003] 12 NWLR (Pt. 834) 444 SC, Ibama v. SPDC (Nig.) Ltd [2005] 17 NWLR (Pt. 954) 364 SC, Nigerian Gas Co. Ltd v. Dudusola [2005] 18 NWLR (Pt. 957) 292 CA, WAEC v. Oshionebo [2006] 12 NWLR (Pt. 1994) 258 CA and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 CA. In proof of his case, the claimant placed before this Court a number of documents including his letters of employment (Exhibit C1), confirmation (Exhibit C2), promotion (Exhibit C3) and the defendant’s Employee Handbook (Exhibit C10). Exhibit C9 dated January 17, 2011 is the letter by which the claimant was dismissed by Oceanic Bank International Plc. In it, the claimant was informed of his “dismissal from the Bank with immediate effect for gross negligence and incompetence causing heavy financial loss to the Bank”. This is the reason the defendant gave for dismissing the claimant; and the onus is on the defendant to satisfactorily prove and/or justify it. The law is that an employer has the right to dismiss an employee even if not specifically written in the contract of service. See Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt. 928) 650 and Ziideeh v. RSCSC (supra). The argument of the claimant that the Employee Handbook (Exhibit C10) did not stipulate that gross negligence and incompetence is punishable by dismissal, and as such his dismissal on that ground is wrongful, cannot hold ground as the defendant has the right to dismiss whether or not the contract of service states so. However, while an employer is not obliged to give any reason for firing an employee, once the employer gives a reason for terminating or dismissing an employee, the burden lies with him (not on the employee) to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 551 CA. In the words of the Supreme Court in Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC): “although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more”. See also George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (W.A.) Co. Ltd [1961] 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317. The question that presently arises, therefore, is whether the defendant has justified the dismissal of the claimant having preferred a reason for the said dismissal. In paragraphs 9 and 10 of the amended statement of defence and counterclaim, the defendant pleaded that the claimant stands in a fiduciary relationship with the defendant and therefore owes the defendant a duty or diligence, care and skill in the performance of his duties consequent upon which the claimant owes the defendant a duty of utmost good faith in the discharge of his duties, the failure of which occasioned severe financial loss to the defendant. The defendant proceeded to list 8 particulars of the claimant’s failings in that regard. Paragraphs 13 and 14 of DW’s deposition of 14th July 2016 are respectively the supporting evidence to paragraphs 9 and 10 of the amended statement of defence and counterclaim; yet in paragraph 14 of the deposition, DW indicated that the deposition of paragraph 14 is “further to paragraph 9 above” instead of “further to paragraph 13 above”. Now, the said “paragraph 9 above” relates to the denial of the defendant that it satisfied itself on the viability of the transaction upon the execution of the collateral management agreement in issue. This uncritical copying of pleadings as evidence throws a good deal of doubt on the veracity of the deposition itself as evidence worth relying on. This uncritical copying can also be seen in particular (iii) both in paragraph 10 of the statement of defence and counterclaim and paragraph 14 of the deposition of DW. In particular (iii), the defendant talks of the “failure of the Defendant” instead of the “failure of the claimant”; and as relates to particular (iv), the defendant puts the sum in question as “N380,00,00.00” in the deposition but “N380,000,000.00” in the amended statement of defence and counterclaim. I indicated that the defendant proceeded to list out 8 particulars of the failings of the claimant as the justification for the dismissal of the claimant. The particulars are: (i) Failure of the claimant to advise the defendant as to the true position of the encumbered nature of the property offered as collateral. (ii) Failure of the claimant to ensure that the surveyor visits the land to take proper measurement of the land. (iii) Failure of the defendant to submit proper, correct and accurate reports to the Loan Monitoring Unit/Credit Risk Management Department of the customer’s loan. (iv) Failure of the claimant to ensure that the said sum of N380,000,000.00 is paid directly in the beneficiary in Thailand and not to Akaeze Ventures account. (v) Failure of the claimant to ensure as agreed at meetings that the goods are delivered into the specific warehouse nominated by the defendant for the purpose off security and control. (vi) Failure of the claimant to take adequate steps in ensuring that appropriate measures are taken to ensure the repayment of the facility. (vii) Failure of the claimant to ensure that as the account/relationship officer of the customer he carried out his due diligence on the customer’s business before recommending the customer to the defendant for a credit facility. (viii) Failure of the claimant to ensure that due diligence is conducted on the customer and his business before the facility was approved and disbursed. Here I must expressed the profound displeasure of this Court at the unprofessional conduct of counsel to the defendant. The defendant’s counsel had filed a motion dated and filed on 30th October 2013 praying this Court for leave to file its amended statement of defence and counterclaim. In a considered ruling on 10th February 2015, this Court dismissed the said application. The particulars listed in paragraph 10 of the amended statement of defence were amongst the intended amendment that this Court rejected and dismissed as well as the counterclaim. The defendant’s counsel has surreptitiously brought these two items in the guise of reacting to the claimant’s 2nd amended statement of facts. This is the height of unprofessionalism, the very lowest ebb, professional misconduct that should not be condoned at all. What is the defendant’s counsel hoping to achieve? To win the case at all cost? What a sad commentary and how low we have sunk in the legal profession. As it is, these particulars are not part of the pleadings before this Court. This means that the defendant has no justification whatsoever for dismissing the claimant; and I so find and hold. The very sad thing is that even if the particulars were part of the pleadings (and I hold that they are not), apart from merely stating these failings, the defendant did not substantiate them; and they do not stand any test when pitted against the evidence before the Court. Particular (i) states that the claimant failed to advise the defendant as to the true position of the encumbered nature of the property offered as collateral. Exhibit C4 dated 20th February 2008 is an internal memorandum from Ajao Estate Branch to the Managing Director/CEO through the Zonal Head(L/M) and has as subject “Request to Establish an Unconfirmed Letter of Credit/Confirmation Using Dollar Line in Favour of Akaeze Enterprises 0841201004875”. It is signed by the claimant and Mohammed Salawu, Branch Manager; and seeks approval. In the comments/recommendations column, the Regional Manager, Zonal Head and Executive Director signed and it was approved by the MD/CEO. Exhibit C4 has a column on collateral/support and provided consideration/justification for the facility prayed for. It then provided that Oceanic Bank being the issuer of the Bank Guarantee will be in total control of the transaction from the importation till pay down and concluded that the bank’s exposure will be adequately secured. Now if the defendant has issues with this, should its officers have signed recommending and approving it? I do not think so. Particular (iv) blames the claimant for not ensuring that the sum of N380,000,000.00 was paid directly to the beneficiary in Thailand; but it was Akaeze Ventures that applied for the credit facility. So how can it be expected that it be paid directly to a beneficiary in Thailand? Particular (ii) blames the claimant for failing to ensure that a surveyor visits the land to take proper measurement of the land. Exhibit C5 is the report of the law firm of F. B. A. Nabena & Co, which conducted a search on the property. Paragraph 11 is the comment/observation of the law firm indicating that part of the land has been sold; while in paragraph 12 the defendant was advised to engage the services of a registered surveyor who should go to the site to ascertain the size of the remaining unsold portion and to also compare it with the survey plan on the registered deed before further transaction on the property. Exhibit C14 is the surveyor’s revised plan, while Exhibit C15 is an internal memorandum wherein the claimant forwarded the legal mortgage documents to the legal department of the defendant; and Exhibit C16 is an email of November 5, 2009, wherein the legal unit confirmed to the claimant that the legal mortgage documents were awaiting execution by a Director of the defendant. Given this scenario, I do not see how particular (ii) can place any blame on the claimant. Particular (iii) talks of the failure of the defendant, not the claimant; and as such calls for no comment or application to the claimant. As for particulars (v) to (viii), the claimant is blamed for failing to do due diligence in terms of warehousing the goods, repayment of the facility and satisfaction in terms of the viable state of the customer’s business. A closer look at the evidence before the Court will show that given the status of the claimant in the defendant bank, the claimant is not an approving authority. His is to recommend. So it must be taken that the defendant satisfied itself on the viability of the transaction before disbursing the sum of N380,000,000.00 to Akaeze Ventures Enterprises for the purchase of 2,500 metric tons of rice. When the rice arrived and could not be cleared the blame cannot be the claimant’s. Exhibit C6, although not approved by the approving authority, as well as Exhibits C17, C18, C19 and C20 all show the efforts made by the claimant to mitigate the defendant’s exposure. The testimony of DW under cross-examination is instructive here. DW affirmed that in the instant suit, the loan request originated from the claimant and the Branch Manager signed, and Management approval was sought. By management DW meant the Regional Manager, Zonal Manager, Risk Management Team and the final approval by an Executive Director (ED). To DW, management is all encompassing. That the loan request is scrutinised by the Branch Manager. After the Branch Manager’s scrutiny, the loan request is scrutinised by the Regional Manager and the Zonal Manager. DW went on that the essence of the scrutiny is to confirm the quality of the credit. That in the instant case, the loan request went through all these processes and was approved; and the approval of the loan was based on the confirmation of the Account Officer (claimant) as being fraud free. It was on this strength that the loan was approved. I do not see in all this how the claimant can be blamed for anything as regards the matter at hand. Despite all of this, by Exhibit C3 dated November 1, 2010, the defendant promoted the claimant. The second paragraph of Exhibit C3 states thus: “Your promotion is in recognition of your performance. It also represents Management’s confidence in your ability to perform excellently on your new grade with its attendant responsibilities. Consequently, you are expected to justify this confidence by continually improving your efforts towards the achievement of the bank’s corporate goals”. A new package totaling N3,726,954.43 was even given to the claimant. All of this came nine months after the defendant had concluded investigation on the diverted goods given Exhibit D6, the investigation report dated January 27, 2010. Now, in labour relations, even when, for instance, the conditions of service provide for a detriment, an employer who agrees to convert it to a benefit must be held to it as is the instant case. This rule is analogous to that which holds as valid an employer who upon the knowledge of an infraction by an employee chooses to condone same. See Ekunda v. University of Ibadan [2000] 12 NWLR (Pt. 681) 220 CA, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, Nigerian Army v. Brig. Gen. Maude Aminu-Kano [2010] LPELR-2013(SC); [2010] 5 NWLR (Pt. 1188) 429; [2010] 1 MJSC (Pt. I) 151, Lawrence Idemudia Oborkhale v. LASU [2013] 30 NLLR (Pt. 85) 1 NIC and James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016. The defendant investigated the claimant on N380 Million and N196 Million facilities availed Akaeze Ventures Limited at Ajao Estate. Despite concluding the investigation, the defendant waited 9 months and then promoted the claimant; only to turn around later and dismiss him. When the defendant promoted the claimant, I see that act as condonation of whatever infraction the claimant is said to have committed, if at all he committed any infraction in the first place. The defendant not cannot set the promotion aside and dismiss the claimant. By Ekunda v. University of Ibadan (supra), if after the knowledge of fraud committed by an employee the employer elects to retain him in his services, the employer cannot at any subsequent time dismiss him on account of that which he has waived or condoned; and by Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487, an employer has the discretion to give a lesser punishment to an employee, but it has no discretion to give a higher punishment than that prescribed. What I have seen played out in the instant case is that the defendant in promoting the claimant despite investigating him must be held to have elected to condone the claimant. Instead of punishing the claimant, the defendant elected to promote him. The defendant cannot now turn around and dismiss the claimant. I so find and hold. This being so, the dismissal of the claimant by the defendant was mala fide and so null and void. Reliefs (1) and (3) of the claimant accordingly succeed as claimed and are hereby granted. The claimant did not pray for reinstatement. In fact by paragraph 29 of the 2nd amended statement of facts, the claimant pleaded that the defendant should simply have terminated the master/servant relationship they had and pay him his benefits; and in paragraph 31 the claimant claimed his benefits upon termination or termination arising from redundancy as per articles 2.8.1, 2.8.3 and 3.3 of the defendant’s Employee Handbook. In paragraphs 32 and 33, the claimant proceeded to ask for the refund of N2,100,000.00 being the total amount the defendant remitted into its Staff Savings and Investment Trust Fund. All of this goes to show that the claimant already deemed his employment with the defendant as being at an end. This means that despite nullifying the claimant’s dismissal (the remedy of which would have been reinstatement - see BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC), I cannot order his reinstatement since the claimant himself did not ask for it or sees his employment with the defendant as continuing. I am thus left with considering whether the claimant has made out and proved his claim for monetary reliefs, to which I now turn. In monetary claims, the employee must first prove his entitlement to the monetary claim and how he came by the quantum of the monetary claim. See Pharmacist Jehoiakim Idih v. Swiss Garnier Limited & anor unreported Suit No. NICN/LA/524/2012, the judgment of which was delivered on 10th July 2017. I must first state that 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; of course once such is proved. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC, Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & anor unreported Suit No. NICN/LA/40/2012 the judgment of which was delivered on 7th April 2016 and Adebayo Boye v. FBN Mortgages Limited unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7th April 2016. In proof of his monetary claims, the claimant testified that while he was a senior officer in the services of the defendant, his monthly salary was N470,000.00. He testified that had he not been unjustly dismissed, he would have been entitled to one month’s salary in lieu of notice of termination in the sum of N470,000 (article 2.8.1 of Exhibit C10), six weeks’ salary for each of the completed years of service in the sum of N2,115,090.00 (article 2.8.3 of Exhibit C10) and outstanding leave allowance on pro rata basis for year 2011 in the sum of N70,000 (article 3.3 of Exhibit C10). He also testified that during the course of his employment, the defendant made monthly deductions of N50,000 for 42 months from his salary and was remitting the said amount into the defendant’s Staff Savings and Investment Trust Fund, a form of deduction introduced by the defendant pursuant to Article 3.4.3 of the Employee Handbook (Exhibit C10). He further testified that upon his dismissal, the defendant failed to refund to him the sum of N2,100,000 which is the total amount remitted into the said Staff Savings and Investment Trust Fund. See paragraphs 30 - 33 of both the claimant’s 2nd amended statement of facts (the pleadings) and written deposition (the evidence) of 4th April 2016. Now, other than the references to clauses in Exhibit C10, the Employee Handbook, there is no documentary evidence (other than Exhibit C3 through which the claimant was promoted and a new compensation package was indicated) proving any of these claims of the claimant. I start off with the claimant’s claim for N470,000 as one month’s salary in lieu of notice. The claimant was dismissed with immediate effect. This means that he was not given any notice or paid in line of notice. In making the claim here, the claimant relied on clause 2.8.1 of Exhibit C10, which provides for one-month basic in lieu of notice. In paragraph 30 of his deposition of 4th April 2016, what the claimant gave as his monthly salary is N470,000; but this is not stated to be his basic salary. The claimant did not frontload or tender his pay-slip or bank account statement showing his monthly salary despite that in paragraph 30 of the 2nd amended statement of facts he put the defendant on notice to produce his statement of account/pay-slips. The law is that a notice to produce, if not adhered to, only entitles the party seeking the document to use secondary evidence. See Onwuzuruike v. Edoziem & ors [2016] LPELR-26056(SC) and UBA Plc v. Ogochukwu [2014] LPELR-24267(CA). Even when Exhibit C3 put the claimant’s total compensation package at N3,726,954.43 per annum, if this sum is divided by 12 months, what we have is N310,579.54 as monthly salary, not N470,000 that the claimant indicated. By Exhibit C3 itself, the basic salary of the claimant is N661,925.93 per annum. If this sum is divided by the 12 months of the year, what we have is N55,160.49 as the monthly basis salary. So going by clause 2.8.1 of Exhibit C10, what the claimant is entitled to as payment in lieu of notice is N55,160.49, not N470,000. I so find and hold. The next claim of the claimant is for the sum of N2,115,090.00 being six weeks’ salary for each of the completed years of service. The claimant relied on clause 2.8.3 for this claim. By Exhibit C1 dated 18th May 2007, the claimant was offered employment. He was dismissed with immediate effect vide Exhibit C9 dated 17th January 2011. This means that the claimant stayed in the employ of the defendant for 3 years 8 months. Clause 2.8.3 of Exhibit C10 dealing with redundancy provides that if a unique situation demands the reduction of existing workforce, the Bank shall consider work, reliability, and length of service of each employee when effecting terminations; and affected staff are entitled to one month’s notice or salary in lieu of notice. Additionally, the employee is entitled to monetary compensation based on the number of years in service. Was the claimant disengaged on the basis of redundancy? Certainly not; and the claimant did not make any case that he was. The long and short of is that the claimant did not prove that his disengagement was a product of redundancy as to come within the purview of clause 2.8.3 of Exhibit C10. The claim for N2,115,090.00 as redundancy payment has accordingly not been proved. It fails and so is hereby dismissed. The claimant claimed outstanding leave allowance on pro rata basis for year 2011 in the sum of N70,000 as per clause article 3.3 of Exhibit C10. Clause 3.3 provides for allowances; and leave allowance is put as one paid on leave approval subject to the staff utilizing a minimum of 10 days of leave entitlement. None of these conditions stipulated under clause 3.3 has been proved by the claimant. The claim for N70,000 accordingly fails and is hereby dismissed. The claimant also claimed that during the course of his employment the defendant made monthly deductions of N50,000 for 42 months from his salary and was remitting the said amount into the defendant’s Staff Savings and Investment Trust Fund, a form of deduction introduced by the defendant pursuant to clause 3.4.3 of the Employee Handbook (Exhibit C10); and that upon his dismissal, the defendant failed to refund to him the sum of N2,100,000.00, which is the total amount remitted into the said Staff Savings and Investment Trust Fund. Clause 3.4.3 provides that from time to time and at management discretion, some forms of deductions may be introduced; and that all members of staff will be duly notified of any such developments as necessary. This provision does not make the deductions compulsory; it makes the deductions at the discretion of the defendant, and that staff will be duly notified. The claimant did not show to this Court the said notification made to him by the defendant that the deductions would be made or that the deductions were actually made to warrant the prayer for a refund of the said deductions. As it is, therefore, the claim for N2,100,000.00 remains unproved and so is hereby dismissed. So for all the special monetary claims made by the claimant, the only one he is entitled to is the sum of N55,160.49 being the payment of one month’s basic salary in lieu of notice. I so find and hold. The claimant claimed for general damages of N50,000,000.00 for wrongful and injurious dismissal. I held earlier that the dismissal of the claimant by the defendant was mala fide and so null and void. The Court of Appeal had cautioned in UMTHMB v. Dawa [2001] 16 NWLR (Pt. 739) 424 CA that every employer, including every public body, must be careful not to abdicate or abuse its powers. The Court of Appeal went on that employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances; and that the law does not permit employers to act arbitrarily. Section 19(d) of the NIC Act 2006 gives this Court the power to grant an award of compensation or damages in any circumstance contemplated by law in terms of the jurisdiction of this Court. See Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017 where this Court awarded the sum of N5 Million only as compensation for loss of job and earnings and unfair labour practice. I am minded to award the same amount in the instant case for the unlawful and mala fide dismissal of the claimant by the defendant. I so hold. I now proceed to the defendant’s counterclaim, which is a claim for N5,394,464.59 being the amount owed the defendant by the claimant. I already indicated how despicable counsel to the defendant is in surreptitiously bringing in the counterclaim even when same had been disallowed by this Court vide it ruling of 10th February 2015. As it is, there is no valid counterclaim before the Court; and I so find hold. But assuming I am wrong, and there is a valid counterclaim, I shall proceed to consider it. It is the contention of the claimant that a careful reading of the entire gamut of the Third Alteration Act, clearly shows that this Court has no jurisdiction to entertain claims relating to recovery of debts arising from loan agreements, which is what the defendant’s counterclaim is about. That based on the facts pleaded in the counterclaim, the defendant granted the purported loan facility to the claimant when the claimant was still in the employment of the defendant. In this regard, that it is immaterial that the said loan was granted in the course of employment. That the position of the law is that contract of employment is separate and distinct from a contract of personal loan, citing Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 at 346 - 347, where the Supreme Court held as follows: “…contract of employment and personal loans between the appellant and the respondent are two distinct contracts having distinct subject matters and their duration not coexistent nor can it be said one is dependent on the other or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment of the personal loan or balance thereof”. Now, section 254C(1) of the 1999 Constitution bestows on this Court exclusive jurisdiction over ALL and ANY labour/employment matter, and matters connected with or incidental thereto. See Coca-Cola Nigeria Limited & ors v. Mrs. Titilayo Akisanya [2013] 18 NWLR (Pt. 1386) 255; [2013] 1 ACELR 28; [2013] 36 NLLR (Pt. 109) 338 CA. Is the recovery of a loan and advances granted an employee while in employment, which thereby becomes a debt, one that is a matter connected with or incidental to labour and employment? I think so. In James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016, for instance, the defendant employer counterclaimed against the claimant for N38,052,678.40 being the total outstanding and unpaid sum due to and retained by the claimant in respect of various unamortized allowances, loans, costs and indebtedness, comprised of sums specifically owing and due from the claimant to the defendant; N1,041,666.70 being the prorated monthly rent paid on the official residence given to the claimant by the defendant; US$1,365.52 (or its Naira equivalent) being the lease charges for the family car, Toyota Corolla 1.8ltr Reg. No. HU 445 EKY; a mandatory injunction compelling the claimant to deliver up the official residence with all the furniture and other household items therein; a mandatory injunction compelling the claimant to deliver up possession of the family car Reg. No. HU 445 EKY; exemplary damages in the sum of N100,000,000.00; and pre- and post-judgment interest. This Court assumed jurisdiction, heard and determined the counterclaim. See also First Bank of Nigeria Limited v. Mr Abiodun Oladipo Olatunji unreported Suit No. NICN/LA/57/2017, the ruling of which was delivered on 11 July 2017, where this Court ruled that it has jurisdiction over the recovery of a loan advanced to an employee by an employer in the course of employment. In this regard, the decision in Lewis v. UBA Plc [2016] 6 NWLR (Pt. 1508) 329 at 346 - 347, cited by the claimant, is distinguishable in that it was not decided within the context of section 254C(1) of the 1999 Constitution. To be specific, the Supreme Court at pages 346 - 347 held thus: “The stance of the appellant that his continued retention in the employment of the respondent is a condition precedent to his repayment of the personal loans and his employment having been terminated by the respondent, the enforcement of the personal loans has been frustrated is not sustainable either in the context of the facts of this case or the prevailing law. This is because the contract of employment and personal loans between the appellant and the respondent are two distinct contracts having distinct subject-matters and their duration not co-existent nor can it be said one is dependent on the other or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment [of] the personal loan or balance thereof”. As can be seen, the Supreme Court itself provided the context (the facts of the case and the prevailing law) in which the case was decided The issue at play was not jurisdiction over loans granted in the course of employment but the issue of liability for repayment. In any event, the cause of action in the case arose long before section 254C(1) of the 1999 Constitution was enacted. I accordingly hold that this Court has jurisdiction over the counterclaim of the defendant assuming it was even validly before the Court. As for the merit of the counterclaim, the pleadings of the defendant as relates to the counterclaim can be found in the amended statement of defence. In the pleadings, the defendant averred that a loan facility of N2,500,000.00 was availed the claimant as at 1st July 2010; and that the claimant services the loan but left a residual outstanding balance of N2,119,000.00 as at 4th January 2011, which the claimant has since failed to service thus leaving an accumulated balance plus interest on N5,394,464.59, the amount the defendant is claiming as counterclaim. The supporting evidence for these pleadings is paragraph 39 of DW’s deposition of 14th July 2016, which simply restates the pleadings. Other than paragraph 39 of the deposition of DW, there is no other evidence substantiating the defendant’s claim that it gave a loan to the claimant. The instrument through which the loan was given is not even before the Court. The oral testimony of DW under cross-examination is that the claimant was availed of a loan in 2009 when he was in the employment of the Bank; but DW cannot recollect whether the letter of offer of the loan to the claimant from the defendant is before the Court (in truth there is none before the Court). DW cannot also recollect the interest upon which the loan was granted to the claimant. How is the defendant hoping that it will recover from this Court? The defendant thinks it can simply walk into this Court and go back with a verdict in this regard? As it is, the counterclaim remains unproved and so is hereby dismissed. For the avoidance, the defendant’s counterclaim fails and is thereby dismissed; while the claimant’s case succeeds but only in terms of the following orders: (1) It is declared that the dismissal of the claimant by the defendant was mala fide and constitutes a breach of contract between the claimant and the defendant. (2) The said dismissal of the claimant by the defendant is hereby nullified. (3) It is hereby declared that the claimant is entitled to the sum of N55,160.49 being the payment of one month’s basic salary in lieu of notice. (4) It is accordingly ordered that the defendant shall pay to the claimant the said sum of N55,160.49. (5) The defendant shall pay to the claimant the sum of N5 Million only for the unlawful and mala fide dismissal of the claimant. (6) Cost of the day is put at N300,000.00 only payable by the defendant to the claimant. (7) All sums payable including cost are to be paid within 30 days of this judgment; failing which they shall attract interest at the rate of 10% per annum until fully paid. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD