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JUDGEMENT The Claimant commenced this action by a writ of complaint dated 18th April 2013. The writ was endorsed with the following claims: 1. A Declaration that the purported dismissal of the Claimant from the employment of the Defendant contained in the letter of termination of appointment dated 4th July 2012, addressed to the Claimant and signed by one Kunle Olashore and Adegboyega Oloyede, both head, HR ERS & Shared Services and Head, HR Subsidiaries respectively, is wrong, null, void and of no effect as same is baseless and unjustifiable. 2. A Declaration that the Claimant is entitle to remain in the employment of the Defendant with all benefits given to staff of his status until his appointment / employment with the Defendant Company is duly terminated. 3. An Order setting aside the said letter dated 4th July, 2012 and restoring all the Claimant`s rights and benefits including his right to continue in the Defendant`s employment until the Claimant lawfully disengages or his employment terminated. 4. An Order of this Honourable Court directing the Defendant Company to pay up all salaries and entitlements of the Claimant outstanding till date. 5. The sum of N 2, 000,000 (Two Million Naira) as general damages against the Defendant Company. 6. Cost of this action. The writ was accompanied with the Statement of fact (claim) list of witness and witness statements on oath and the documents to be relied on at the trial. On 5th of August, 2013 the Defendant entered appearance and filled a Statement, list of witnesses, witness statement on oath. Pleadings were settled and the trial commenced. It is the case of the Claimant when he testified and adopted his witness Statement on oath, that by virtue of a letter of appointment, Exhibit A1 to A3 dated 7th November, 2007 he was employed in Intercontinental Bank Plc as a Senior Executive Trainee and he discharged his duties faithfully and diligently which was crowned with good commendation from the Bank. He avers that sometime in 2011, based on some corporate restricting due to the Central Bank of Nigeria (CBN) intervention, the assets and liabilities of Intercontinental Bank Plc became subsumed in that of the Defendant. After the acquisition, the Claimant continued to work for the Defendant. Part of his duties included working with a team responsible for moving case from several Branches of the Defendant to authorized destinations as instructed by the Defendant through officers in charge. The Claimant averred that on the 27th of January, 2012 in the course of his duty. He was part of a team that moved some cash totaling N 4, 8000,000 (Four Million, Eight Hundred Naira) from Ire- akari, Okota and Adeola – Odeku branch office of the Defendant. Where another sum of N 250,000,000 (Two Hundred and Fifty Million was collected. That on getting to Alausa office where the cash was to offloaded, he and his team discovered that some foreign currency that were collected and wrapped in a small cash bag could not be immediately found. That a report was quickly made to one Jibola Fahola the head cash of the development and a search ensued for the missing cash amidst boxes that cash was usually kept in the dark till about 9pm, when , without giving Claimant and his team enough time, the said Jibola Fahola invited the police to arrest them and they were moved to Bar beach police station on that same night of Friday , 27th February ,2012 where he and his team remained on the orders of the Defendant till the morning of Tuesday, 31s January 2012. Claimant avers that on the 4th day of their detention, the Defendant and the police came and took them to the Adeola – Odeku branch of the Defendant ostensibly to go and view CCTV footage that while there, a call came from Alausa branch office that the money had actually been offloaded with other boxes at Alausa. That after this incident, he resumed duties as a cash officer at the Alausa branch of the Defendant and was later redeployed to the cash management unit at the Defendant`s commercial Road, Branch where he continued discharging his duties. The claimant avers that being fully satisfied with his innocence in the case of the missing monies which were later found, the Defendant retained his services in the position of Senior Executive Trainee vide Exhibit A4 –A7 dated 1st February , 2012. Headed: Offer of Employment. That surprisingly about four months after, precisely on the 25th of May, 2012 he was invited to appear before the Defendant`s Disciplinary Committee. That he honoured the invitation and told his own side of the story to the Defendant. He said he was issued Exhibit A8 a letter dated 4th July, 2012, a letter terminating his appointment. The Claimant averred that the content of Exhibit A8 which sought to indict him is baseless and cannot be justified, as no disciplinary committee of the Defendant could have reasonably found him guilty or liable with respect to any misconduct either on Friday, January 27, 2012 or at any other time at all. The Claimant avers that the termination came as a rude shock and he retained the services of Lawyers who wrote the letters in Exhibit B, to B2, B3 –B5 and B6 TO B8 to the Defendant. Which letters threatened legal action and made demand for payment of damages in pecuniary terms for the wrongful termination of the Claimant`s appointment. The Claimant averred further that since his termination every potential employer he has come across have shown no interest in employing him due to the stigma of gross misconduct and dismissal. The Defendant in their Statement of Defence denial the contents of the Statement Fact claim) of the Claimant except where admissions were expressly made. The Defendant admitted paragraph 6 of the Statement of claim (Facts) only to the extent that the Claimant was re-employed by the Defendant. The ……… of the Defendants case is that the Claimant was employed after the acquisition of the Defunct intercontinental Bank Plc by the Defendant through Exhibit A4 to A7 that the Defendant was on probation for a period for gross misconduct. That the Claimant was involved in a case of missing cash (foreign currencies) in his custody and the Claimant was not able to satisfactorily explain his role in the matter before a Disciplinary committee of the Defendant. That the Claimant admitted before the Disciplinary committee of the Defendant that the cash in his control was lost in transit. That the Defendant was given ample fair hearing but failed to satisfy the Disciplinary committee of the Defendant which found and indicted him for gross negligence in carrying out his duties. The Defendant maintains that it did not at any time confirm the appointment of the Claimant. The Defendant only re-employed the Claimant after the acquisition of the defunct intercontinental Bank while investigation into the missing cash was on going. That the Defendant did not in any way breach the terms and the conditions of employment of the Claimant in the termination of his employment and that it did not receive any of the letters written by the Claimant `s solicitors in the B series of exhibits. In the written address of the Defendant this sole issue was formulated for determination:- Whether the Claimant`s employment was validly terminated by virtue of the Defendant`s letter to the Claimant dated 4th July, 2012. The Claimant on their own part formulated these two issues for determination (1) Whether the Claimant was a staff entitled to all full benefits as required by law (2) Whether there was a case of stealing or gross negligence /misconduct by the Claimant in the Defendant`s Bank as alleged against the Claimant. Of these issues, that formulated by the Defendant is at the heart of the matter; whether the Claimant`s employment was validly terminated by the Defendant. The Defendant submit that the termination of the Claimant`s employment with the Defendant through the Defendant`s letter dated 4th July, 2012 Exhibit A8 was proper and valid in law. The Defendant submits that the Claimant letter of Appointment dated 1st February, 2012 Exhibit A4 – A7 is very relevant as it contains the terms and conditions of the contract of Employment of the Claimant with the Defendant; that the said exhibit upon careful perusal would show that the relationship between the Claimant and the Defendant is that of ordinary master and servant relationship that the Claimant`s contract of employment is devoid of any statutory flavor in which case the employment could only have been terminated or determined by statutory preconditions governing the determination . He relied on Osuma VS. Edo Broadcasting Service (2005) ALL FWLR (PT.253) 773 at 787. That the contract of employment not being one of with statutory flavor, the Defendant is entitled to terminate the Claimant`s employment for any reason whatsoever or even for no reason at all. He cited Lake Chade Research Institute Vs. Mohammed (2004) ALL FWLR (pt. 225) 40 at 60-61. That in the case of Ondo State Vs. Folayan (1997) 7 NWLR (Pt. 354) 1, a lecturer who had spent 4 years on probation was terminated with no allegation of wrong doing against him, no reason given and no hearing afforded him. Everywhere, he was recommended for promotion three (3) months prior to the termination. Notwithstanding these the Supreme Court upheld the termination of the employment of the said lecturer. Counsel then submitted that the termination of the master and servant relationship hitter to existing under the contract of employment of the Claimant cannot be declared or held to be null and void as being prayed by the Claimant. He relied on the case of Osisanya Vs. Afribank Plc (2007)4 M.J.S.C 128 at 145. That a court cannot impose or foist on an unwilling employer his /its employee. Counsel also relied on the case of Ifeta Vs. Shell Det. Dev.Co Ltd ( 2006) 7 M.J.S.C , 121 at 135 that reinstatement as sought ordinarily the remedy for breach of contract of service. Specific performance or reinstatement is penerally not the remedy in response of personal service’’ The Claimant had submitted in support of his issue one for determination at paragraphs 4.1 and 4.2 that it is the law that in acquition or merger of companies, he who acquires assets, acquires liability. Hence the absorption of the original company known as intercontinental Bank Plc by the Defendant Company places the Defendant in the position that the acquired intercontinental Bank Plc was to the Claimant; A full Master Servant relationship. He relied on Longe V. FBN PLC (2010) 36 WRN 1 @ Pg. 19 That every contract of employment contains the terms and conditions that will regulate the terms on determination, employment relationship such as terms on determination, notice, wages, benefits are usually contained in the expressed contract of service or implied into it by common law and custom. That the nature of employment penerally affects the terms of the contract of employment. Counsel submits that the Defendant cannot escape the responsibility it owed the Claimant. That if the Defendant claims to have engaged the claimant on a fresh employment in Exhibit A4 –A, it ought to have formally terminated the appointment of the Claimant with the Defunct intercontinental Bank Plc. That failure to terminate the Claimant`s employment with the said intercontinental Bank Plc retaining the position of the Claimant in the Defendant`s Bank. He quotes Adekeye J.S.C in Longe Vs. FBN. Supra at page 63 where the J.SC held. ``In the event of termination of employment with statutory flavor, strict adherence must be held to the statute creating the employment for statutory provisions cannot be waived’’ On issue 2, whether there was a case of stealing or gross negligence / Misconduct by the Claimant in the Defendant`s bank as alleged against the Claimant. At 4.3 Counsel for the Claimant of the 27th of January 2012 led to the immediate issurance of a letter of appointment dated 1st of February , 2012, Exhibit A4 –A7 to the Claimant in preparedness to summarily terminate the Claimant`s appointment as a person still under probation. That the disciplinary committee set up was merely to justify the Defendant`s action of the termination of the appointment of the Claimant through Exhibit A8. That the purported missing fund was found within the premises of the bank. Counsel referred to the case of ENN VS. Access Bank Plc & ORS (2014)12 CLRN, where he states that the Trial court dismissed the Appellant `s claims but awarded salary arrears and the court of Appeal unanimously the appeal in part held that: `` Though there is no clean case of fraud proved against the appellant both at the level of the Disciplinary committee as disclosed in Exhibit D F 2 and at the lower court, there are however cases of impropriety and negligence. However for the purpose of answering issue 1, it is the law that any allegation of crime requires proof beyond reasonable doubt. See Section 135 (1) OF THE Evidence Act 2011 ‘’ In coming to the above conclusion the argument of the Respondent Bank was heard by the Court of Appeal that the law does not require the crime or misconduct to be proven or established by a court before the employer can be dismissed the employee but such dismissal must be contemplated by the contract of service and an opportunity presented to the employee to defend himself. That the Appellant was guilty of not an isolated incident but series of incidents one of which he openly admitted in cross examination; In the present case counsel for the Claimant stated the claimant`s appointment with intercontinental Bank having not been formally terminated with the defunct Intercontinental Bank Plc , the Claimant is still confirmed a staff by virtue of Exhibit A –A3 and urged the court to consider the matter on its………………… and grant the Claimant`s prayer; The ……………. Of this matter …………………. Around the termination of the Claimant`s employment by the Defendant which the claimant contests. Counsel for the Claimant insists that the claimant`s employment still subsists by virtue of exhibit A-A3 the letter of Appointment with Intercontinental Bank Plc. The Defendant ……………… that it is exhibit A4 A7. Have looked at both documents and it must be understood that both Intercontinental and Access Banks had different terms for their staff before the merger / takeover of assets and liabilities by the Defendant Access Bank. At exhibit AZ on termination, Intercontinental Bank Plc provided: ``Either party may terminate this appointment at any time by giving to the other one month notice in writing or pay in lieu thereof’’ At Exhibit A5 on Determination of Employment Access Bank the Defendant provides: `` During your probationary period or after the confirmation of appointment either party may give the other 3 months pay in lieu of notice. it is a condition of service that the Bank may at its discretion transfer you to any of its branches or deploys you to any of its other departments at any time during your service.’’ I hold that for the purpose of this case, Exhibit A4 to A7 merely revalidates Exhibit A-A3 and no more in the context of bringing former staff of the acquired Bank into the fold of the Defendant acquiring Bank. Having done this, and following from the incidence of January 27, 2012 out which the Claimant has testified and been cross examined, that his employment was Terminated by the Defendant, A look at the said letter of termination too Becomes necessary. Exhibit A8 the letter of termination it is dated July 4th 2012 and headed: Termination of Appointment, it provides: You will recall that you appeared before a Disciplinary committee of the Bank, with respect to the loss of cash in transit that occurred on Friday, January, 2012 in which you were unable to prove your innocence beyond reasonable doubt. The Disciplinary committee has considered your admission in respect of the lost cash in transit and has reached a conclusion that your action amounts to a gross misconduct. Accordingly, we hereby terminate your appointment with the Bank with immediate effect. As you are aware, the Bank is constrained to close staff salary account upon disengagement of staff due to system configuration. To enable us complete your exit from the Bank, Please submit the following documents - Unused cheque leaflets - Unused Complimentary card - Staff Identification Card - All other Bank`s property in your possession. We look forward to receiving the documents stated above. Yours Faithfully – Access Bank. At paragraph 11 of the Statement of Facts it is averred that the missing money was found in one of boxes that was off loaded at Alausa. In Response the Defendant in the Statement of Defence at paragraph 9 averred that contrary to paragraph 11, of the Statement of claim (facts) the Defendant states that the stolen cash bag was not in one of the bags that were off loaded, rather the same was recovered in a hidden corner within the Defendant`s Alausa Business office by the Police Investigation team after the invitation of the Claimant and his team members. In the cross examination of the Claimant, after her had been made to read from Exhibit A6 on misconduct, he was asked; the facts that gave rise to your suit is that part of cash you carried from one Bank to another was misplaced; He answered Yes. He was asked again: Before the matter was reported to the police there was cash missing in transit under your custody. He answered; yes under the misconducting clause that the Claimant read, he was asked whether a staff can be summarily dismissed for not being capable of carrying out his duties by his employer. The Claimant answered yes. The Claimant was asked “It is not also time that upon termination of your appointment you were paid He answered Answer: I did not receive money in respect of that Asked further Question: Were you paid money? Answer: When I was terminated I was not paid any money. The Claimant said when he was terminated I was not paid any money. The Claimant said when he was terminated he was not owing any money to the Bank. Now, the clause on misconduct from Exhibit A6 Provides: `` The Bank will be entitled to exercise its power of summary dismissal if at any time you refuse to comply with orders/instructions, disclose confidential information, be convicted of a criminal offence, conduct yourself in a manner as to bring the Bank`s name into disrepute, be incapable of performing your duties to the satisfaction of the Bank, or engage in other misconduct that may damage the image of the Bank’’ Under cross examination DWI Olakunle Bamidele Olashore a manager, Human Resources at the Defendant Bank was asked Question: Eventually the Claimant was dismissed. Answer: Yes, he was terminated Question: Why was he terminated? Answer: Because the Bank was not satisfied with his explanation on funds, the complicity regarding the missing funds, because he led the people that moved the fund, and we could not take further risk regarding such depositor’s funds, we had to part ways. Under further cross examination. The following question and answer ensued. Q: Before the offer of employment by Access Bank did the Claimant apply to Access Bank. Ans: No they don’t have to because they are still employees of Intercontinental that we acquired. Q: When the Claimant was given a letter of termination of employment by Access Bank was there any payment of gratuity? Ans: No we don’t have a policy regarding gratuity in Access bank, we only do pensions, and he was paid in lieu of notice. Q: Do you have anything to show he was paid in lieu of notice. Ans: I don’t have anything here but it was in his accounts. Q: you are not telling the truth, Access bank did not pay any money to the Claimant Ans: I can’t lie under oath, as the Claimant Statement is verifiable you can go to the bank and print it out. Counsel took a date to continue cross examination. At the resumed date. The following questions and answers ensued Q: The missing fund, you said it was discovered Ans: Yes Q: Who discovered it? Ans: I would not know but a staff discovered it. Q: Where was it discovered? Ans: I am not too sure; it was discovered at the bullion services office. Q: After the termination of the Claimant, he was paid some money. Ans: Yes Q: Do you have any proof as to payment of money Ans: Yes but it is not in the Court Q: if you dismiss someone, do you pay that one money? Ans: We pay it depends on his entitlements at the time. From the above the following are the Court’s finding of fact: (1) It is a fact that there was a case of missing funds by local and foreign currency under the care of the claimant and his team who were engaged in the movement of cash. (2) The cash was found after the Claimant, informed his immediate boss, and the Police was involved. There was a police investigation. The Claimant was not criminally prosecuted over the missing (but found) funds, neither was he criminally prosecuted and convicted in a Court of law. (3) The Claimant was terminated over his involvement in this case of the missing funds. (4) The DW1 in his Witness Statement on oath said the missing funds was recovered by the police but under cross examination he said a member of staff found the missing money. (5) The Claimant was not paid any money by the Defendant after the termination of his employment. Though the DW1 maintained that he was paid when facing cross examination. There was nothing to show that he was paid any monies after he was terminated. Even after 2 adjournments no proofs of payment of any kind were furnished the Court. Now, the Defendant in its written address through counsel had formulated a sole issue for determination he had relied on a number of cases such as Osuma vs. Edo Broadcasting Service (2005) ALL FWLR (part. 253) 773 at 787 where the Court of Appeal held “A employment with statutory flavour is one governed by statute wherein the procedure for employment and dismissal of an employee are already spelt out. In such a situation, the employment cannot be terminated other than in the way and manner prescribed by that statute and any other manner of termination in consistent with the statute is null and void and of no effect. The contract is determinable not by the parties but by statutory preconditions governing its determination.” I find that in the case at hand Exhibits, A to A3, A4 to A7 and A8 hold the key to the resolution of the case at hand. The employment of the Claimant could not have been terminated or brought to an end other than in the way and manner prescribed by the contracts of employment or employment terms and any other manner of termination in consistent with the terms or contracts of employment is null and void and of no effect. I hold that the contract is determinable by the terms and preconditions governing its determination. Counsel submits at 5.2 for the Defendant, and rightly too, that the contract of employment of the claimant is not one with statutory flavour, that the Defendant is entitled to terminate the claimant’s employment for any reason whatsoever or even for no reason at all. He relied on Lake Chad Research Institute vs. Mohammed (supra) 92004) where Ogbuagu, JCA as he then was held. “An employer need not show any motive or give any reason for determining the employment it is not the law that motive vitiates the validity of the exercise of the right of an employer. The exercise is totally independent of the motive that prompted the exercise.” In this case the talk has not been so far on motive but rather as formulated by the Defendant in its sole issue for determination: Whether the claimant was validly terminated by virtue of defendant’s letter to the claimant dated 4th July 2012. Exhibit A8. I had earlier re produced the salient parts of exhibit A to A3 and A4 to A7. On termination of employment and misconduct. It is clear that the stipulations regarding determination of employment; that during the probationary period or after confirmation of appointment either party may give 3 months’ notice to terminate the employment or three months in lieu of notice.” This term was not complied with in exhibit A8, the letter of termination. Ans I so hold. Indeed its opening I charges that the Claimant was unable to prove his innocence at the Disciplinary Committee of the bank with respect to the missing cash (which was later found) of the 27th January, 2012, beyond reasonable doubt. I have earlier found as a fact that there was no crunisial conviction of the claimant in any Court of law, neither do I find any clear not case of admission by the claimant, in respect of the lost (but found) monies in transit, it was the claimant who reported this loss to his immediate bosses, the rendition of the Defendant’s version of events on this point certainly lacked credibility given the inconsistency and contradictions of the DW1 testimony under cross examination, part of which has been highlighted earlier. He had told the Court the Claimant was not dismissed. The Defendants authorities as cited are quite persuasive but given the facts of the case and the terms of the Court has got to constive, I hold that they do not readily apply here in this case. On what the Court will look at when construing the terms of employment, the Supreme Court in the case of Central Bank & Anor v. Mrs. Agnes Igwillo (2007) 14 NWLR (pt 1054)394 held at page 425 per Mohammed JSC that: “It must be always borne in mind and this also settled, firstly that where contract (which includes contract of employment), involve several documents, the trial Court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of the Attorney General of Kaduna State v. Atla (1986) 4 NWLR (pt. 38) 785 C.A and Leyland Nig. Ltd v. Dizengoff W.A (1990) 2 NWLR (pt. 14) 610 at 620. Secondly, where a contract is in writing, any agreement, which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of release of the respondent to the 1st appellant was that the 1st appellant shall accept the respondent as employed and transferring his service from one body to another body. See John Holt Co Ltd v. Stephen Lafe (1938) 15 NLR 14 and Bijou Nig. Ltd v. Osidarohwo (1992) 6 NWLR (pt. 249) 463 at 649. On the basis of the above finding the sole issue as formulated by the Defendant is resolved in favour of the Claimant, I hold that the Defendant breached the terms of exhibit A4 to A7 in the termination of the Claimant’s employment. On the remedy for breach of contract of employment the Court of Appeal in Central bank of Nigeria v. Imaila Jama are Jidda (2001) 1 NWLR (pt. 705) 165 held that,” The law regarding master servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract, he must pay damages for breach of contract. So the question in pure contract does not at all depend on whether the master has heard the servant in his own Defence; it depends on whether the facts emerging at the trial proved breach of contract per Lord Reid in Reidge v. Bahdwin (1964) A.C 40 at p. 65” per Oduyemi JCA. In consequence, it is declared that the termination of the claimant’s employment with the Defendant is in breach of the terms of contract and therefore unlawful. As a consequence, the letter dated 4th July 2012 is hereby set aside until the Claimant is lawfully disengaged from the service of the Defendant according to the terms stipulated in the terms of employment. The Defendant’s is hereby ordered to pay the claimant all his salaries and entitlement from the time he was terminated till he is lawfully terminated. The claim for 2 Million Naira damages is refused in view. The last order just made. This is the judgment of Court. There are no awards as to costs. ________________________¬¬¬¬____ HON. JUSTICE E. D. E. ISELE JUDGE