Download PDF
JUDGMENT 1. Introduction & Claims On 26/5/16, the Claimant sought the intervention of this Court via his General Form of Complain and statement of facts for the following reliefs - 1. A declaration of this Honourable Court that the Defendant’s DISMISSAL of Claimant from its employment was wrongfully done and consequently null and void. 2. A declaration of this Honourable Court mandating the Defendant to convert its wrongful DISMISSAL of the Claimant to a termination of his employment. 3. An order of this Honourable Court mandating the Defendant to pay the Claimant’s severance entitlements without any further delay whatsoever. 4. An order of this Honourable Court, mandating the Defendant to pay the Claimant’s arrears of salaries and ancillary allowances, which were withheld by the Defendants from January, 2011 to November 2011, albeit without any lawful justification whatsoever. 5. An order of this Honourable Court, mandating the Defendant to reverse all interest and arbitrary deductions made by it in respect of the MORTGAGE FINANCE facility availed the Claimant in the course of his employment with the Defendant, from the 25th day of January, 2011, until final judgment in this suit. 6. An order of this Honourable Court restraining the defendant from obstructing Claimant’s equitable right to redeem the three Bedroom Bungalow lying and situate at MAHFASS Sunshine Estate, Kurudu, Abuja, covered by the aforesaid Mortgage Finance Facility. 7. Special Damages in the sum of =N=20,000,000.00 (Twenty Million Naira Only). 8. General Damages in the sum of =N=25,000.000.00 (Twenty Five Million Naira). 9. Cost of this action. Along with his Form 1, the Claimant filed a statement of facts, witness deposition, list of witness, list and copies of documents to be relied on at trial. In response, the Defendant filed its Statement of Defence and other accompanying processes on the 22/7/16 denying the allegation of the Claimant in its entirety. 2. Case of the Claimant On 2/5/17, the Claimant opened his case and testified as CW1. CW1 adopted his witness deposition dated 26/5/16 as his evidence in chief and tendered 8 documents as exhibits. The documents tendered were admitted as exhibits and marked as Exh. BJ1-Exh. BJ8. The case of the Claimant as revealed from the pleadings filed and evidence in chief is that he was employed by the Defendant by a letter to that effect dated 4/8/06; that he was wrongly dismissed by the Defendant on 25/11/11 on unsubstantiated allegation of professional misconduct; that he was placed on suspension without pay; that his dismissal is a contravention of the provisions of the Ecobank Group Human Resources Policies and that he has suffered untold injuries as a result of his wrongful dismissal by the Defendant. Under cross examination, witness stated that he has a National Diploma from Yaba College of Technology and different professional certifications in Information Technology; that he was essentially a System Support Officer with Defendant; that before his redeployment he was System Administrator at Defendant Head office while in Lagos; that he was reporting to a superior then; that he was a Regional IT Support staff when redeployed to Abuja; that he had supervisors then also; that it was within his job description to purchase IT material for Defendant; that he was being supervised; that he was reporting to the Head Office then; that he was diligent and loyal at his job; that he was given letter of suspension on 21/1/11 for whistle blowing; that at the point of suspension he was not working for Defendant; that he has have never been convicted by any court; that he was not aware that there were specific vendors Defendant purchased materials from; that he worked in different branches of Defendant; that there were no specific vendors in Abuja or Port Harcourt where he worked; that he sought and obtained all necessary approvals for all the purchases made; that Ezekiel Timothy is the Regional Control Officer; that he was not informed or aware of any whistle blowing; that he was not purchasing IT facilities in Lagos; that in Abuja he was reporting to the Regional Head; that his supervisors always directed him to seek approval from the Head office and that he was invited by Defendant after my suspension. 3. Case of the Defendant On 20/9/17, the Defendant opened its defence and called one Dehinbo Francis as its lone witness. He testified as DW1. DW1 adopted his witness statement on oath dated 20/7/16 as his evidence in chief and tendered 4 documents as exhibits. The documents tendered were admitted in evidence and marked as Exh. D1-Exh. D4 respectively. The case of the Defendant, in brief, is that the Claimant worked with as a Regional Information Technology Support Staff prior to his dismissal from its employment; that the Claimant was dismissed on account of a whistle blower allegation revealing his involvement in inflation of prices of IT equipment purchase by the Claimant for the Defendant amongst other allegation; that the Defendant informed the Claimant of the said allegation and the Claimant invited to appear before a Disciplinary Committee where he was given an opportunity to present his case before the Committee; that the Defendant equally entertained representations from other staff members and conducted thorough investigation into the allegation against the Claimant including but not limited to visiting the address of the vendors the Claimant allegedly purchased the IT materials; that the Defendant discovered that the vendors did not exist in the addresses stated on the invoice presented by the Claimant; that further to the above, the Defendant discovered that the Claimant not only isolated himself from other staff members but equally worked with and handed over to NYSC staff whenever he proceeded on leave; that the Claimant was found to be bypassing the approval of his direct supervisors and Head Office IT thereby putting them in the dark and cunningly seeking approval from the Abuja Regional Head/Regional Coordinator who has a dearth of information to give such approvals; that at the conclusion of the investigation, the Committee agreed that the Claimant’s actions amounted to a criminal conduct detrimental to the Defendant occasioning loss of income and that the Claimant was recommended for dismissal while other staff members found wanting were issued caution and warning letters as appropriate. This witness stated under cross examination that he holds MBA in International Business Methods; that he is at the Head Office of the Defendant in Lagos; that he previously worked at the Abuja and P/Harcourt branches of Defendant; that the written responses of the Claimant to the allegations against him were not satisfactory; that Claimant’s salary was not paid during the pendency of the investigation although this was not in consonance with the Human Resources Policy of Defendant; that the Defendant’s Human Resources Policy provided for dismissal of the Claimant in the circumstance of this case; that the allegation against Claimant was that he purchased IT equipment without the approval of his immediate boss; that the Claimant was supposed to obtain the approval of his Supervisor before purchasing the IT equipment; that Claimant obtained the approval of the Head of the Branch where he worked; that it is not possible for money to be released for purchase without approval; that the dismissal of the Claimant was based on the recommendation in Exh. D3; that he knew Timothy Ezekiel a Control Officer of Defendant and that Timothy Ezekiel was aware of the transaction the subject of allegation against the Claimant. 4. Submissions of learned Counsel At the close of trial and pursuant to the direction of the Court, learned Counsel to the Defendant filed a 25-page final written address on 30/1/18. In it, learned Counsel set down a lone issue down as follows - Whether considering the facts of this case and all the evidence put before the Honourable Court, the Court can safely conclude that the Claimant has established his entitlement to the reliefs sought against the Defendant in this case. Arguing this lone issue, learned Counsel submitted that the burden of proof is on the Claimant to show that his dismissal was wrongful; that he could only do by placing before the Court the terms and conditions of his employment and how same was violated citing Adegoke v. Adibi (1992)5 NWLR (Pt. 242) 410 & Katto v. CBN (1999)6 NWLR (Pt. 607) 390. Counsel reviewed the case and the law and submitted that the Defendant only simply exercised its power and right to terminate the employment of the Claimant as provided; that a Court cannot make the declaration sought by the Claimant same not having been proved; that the Claimant having been summarily dismissed is not entitled to any severance benefits as claimed citing Eze v. Spring Bank Plc and that the Claimant has no entitlement to salary for the period he was under suspension citing Longe v. FBN. Counsel prayed the Court to dismiss the claims of the Claimant. Learned Counsel to the Claimant filed his final written address of 24 pages on 5/6/18. In it Counsel canvassed the issue thus - whether by the aggregate of facts before this honourable Court, the Claimant is not entitled to the reliefs sought by him against the Defendant. Counsel submitted that the dismissal of the Claimant was based on unsubstantiated allegations and that the burden is on the Defendant to prove those allegations. Counsel added that not having proved the allegations the basis upon which the Claimant was dismissed, the dismissal cannot stand. Counsel urged the Court to so hold and grant all the reliefs sought by the Claimant. Counsel to the Defendant subsequently filed a reply address on points of law on 22/6/18. I read and understood the said reply address. I however note that the contents of the said reply address go beyond what is generally expected to be a focus of reply address. I thus elect to discountenance same. 5. Decision I carefully read all the processes filed by the both learned Counsel in this case with understanding. I patiently listened to the oral testimonies of the witnesses called at trial and also watched their demeanor. In addition, I evaluated all the exhibits tendered and admitted during trial. Having done all this, I note that the issue separately raised for determination by either side is essentially the same but couched differently. I thus adopt as issue for the just determination of this case as - whether the Claimant has proved his case to be entitled to all or some of the reliefs sought against the Defendant. The age-long principle of law that he who asserts must prove same remains trite for all intents and purposes even in this case. The principle accords with commonsense, the statute law (See Section 131, Evidence Act, 2011) as well as the case law. See Coker v. Adetayo (19920 lpelr-15369(CA). That burden of proof must be discharged not merely by making averments as contained in pleadings but by adducing cogent, credible and admissible evidence. See MTN v. Mundra Ventures (Nig.) Limited (2016) LPELR (CA). It is worthy of note, albeit for the sake of saying so though, that a Defendant does not need or have to say anything until a case is made out against him. Thus, a Defendant can as well remain aloof throughout the trial of a case against him. The reliefs sought by the Claimant are essentially 9 in number. Claimant must therefore put forward evidence in support of each head of the reliefs. Now, has the Claimant proved his entitlement to his claims? The first relief sought by the Claimant is for a declaration of this Honourable Court that the Defendant’s DISMISSAL of Claimant from its employment was wrongfully done and consequently null and void. Let it be said that indeed, this relief is the cornerstone of the case of the Claimant. Success in this relief has far reaching implication for the remaining reliefs sought. The facts and circumstances surrounding this case are clear enough. On an allegation by a whistleblower, the Defendant investigated the Claimant, set up a disciplinary committee to look into the allegation, afforded opportunity to the Claimant to defend himself and upon the recommendation of the Committee the Claimant was dismissed. It is for the Claimant in the instant case to prove to the Court what made his dismissal wrongful. This can only be successfully done by placing before the Court his contract of service containing the terms and conditions of his engagement and bringing to the fore how the terms and conditions relating to dismissal were violated by the Defendant. See Akinola & Ors. v. Lafarge Cement WAPCO Nigeria Plc (2015) LPELR-24630(CA). Now, in proof of his case, the Claimant testified in chief in paragraph 15 of his witness statement on oath that ''... my dismissal is a contravention of the provisions of the Ecobank Group Human Resources policies, September 1999''. Claimant also tendered Exh. BJ6 - Ecobank Human Resources Policies. Unfortunately, the Claimant, aside from that singular averment, did not draw the attention of the Court what portion or section of Exh. BJ6 was violated by the Defendant in dismissing him. I find that the dismissal of the Claimant was based on Claimant's action which '' ... amounts to gross and professional misconduct''. See Exh. BJ2 . The law is trite that a misconduct is what an employer says it is. See Adewunmi v. Nigerian eagle Flour Mills (2014) LPELR-22557(CA) per Dongban-Mensem JCA. I also perused Exh. BJ6 as tendered by the Claimant and note Paragraph EHRP 1904 on page 91. That paragraph deals with Dismissal. Under Policy Statement it is stated that ''ECOBANK may summarily dismiss, without any entitlement, employees who commit any of the following offences: Theft, fraud, corruption and other irregular practices of similar gravity''. The reasons for dismissing the Claimant are contained in Exh. BJ2. According to that exhibit, they are as follows - 1. Purchase of Technology equipment from unapproved vendors; 2. Purchase of Technology items without following due process and/or obtaining necessary approvals; 3. Insider dealing. There appears to be no controversies that the allegations were investigated and that the Claimant was afforded opportunity to be heard and was heard. The major grouse of the Claimant is that these allegations were not proved. Unfortunately in a situation as this, it is not the duty of the Court to investigate the conduct of the investigation panel set up by the Defendant. It is also not for the Court to sit on appeal over the finding of the investigation Committee. The Court of Appeal in Gunda v. UNIMAID (2014) LPELR-23351(CA) took time out to espouse on what is expected from a Court or a trial Court in particular when a dismissal is challenged as in the instant case. In Gunda's case. the Court of Appeal stated as follows - ''The law is trite where an employer terminates the appointment of an employee on the ground of misconduct, the employer is only expected to be satisfied that there was misconduct established against the employee. If the employee disagrees, or challenges the termination of his appointment in a Court of law, the Court can only consider whether the employer complied with the relevant procedure in terminating the appointment or not. The Court cannot delve into the issue of whether the employee was guilty of the misconduct or not. To prove guilt of a person in doing an act is not within the province of the jurisdiction of a civil court. Guilty, in its grammatical meaning has criminal elements of which only a criminal Court can adjudicate on''. In an earlier case of NEPA v. El-Fandi (1986)3 NWLR (Pt. 32) 884 an appeal heard by the Kaduna Division of the Court of Appeal. The Plaintiff/Respondent had sued for the unlawful termination of his employment for an alleged misconduct. The issue arose as to whether the Defendant/Appellant should prove the serious misconduct before the trial Court. Akpata, JCA while rejecting this line of argument observed, among others, at Page 698 of the Report - "...all that the employer is to establish to justify the dismissal or termination of the appointment is to show:- (i). That the allegation was disclosed to the employee (ii). That he was given a fair hearing...and (iii). That the Panel believed he committed the offence after hearing witnesses''. Claimant has not shown to or contended before me that the allegations were not disclosed to him, that he was not afforded fair hearing and that the investigation committee did not believe that he committed the allegations leveled against him. I refuse this relief and hold that the dismissal of the Claimant was not wrongfully done. It was not null. It was not void. I must add that dismissal as a disciplinary measure has far more consequences attached to it. It is trite for instance that it carries with it public ignominy, odium and disgrace. It is also trite that a dismissed employee loses entitlement to any benefits whatsoever. Thus having so fund and held respecting relief 1, reliefs 2,3 &4 as sought must necessarily since their umbilical cords are tied to relief 1. Accordingly, I refuse and dismiss reliefs 2,3 & 4. Relief 5 is for an order of this Honourable Court, mandating the Defendant to reverse all interest and arbitrary deductions made by it in respect of the MORTGAGE FINANCE facility availed the Claimant in the course of his employment with the Defendant, from the 25th day of January, 2011, until final judgment in this suit. Relief 6 is for a restraining order against the Defendant from obstructing Claimant’s equitable right to redeem the three Bedroom Bungalow lying and situate at MAHFASS Sunshine Estate, Kurudu, Abuja, covered by the aforesaid Mortgage Finance Facility. I perused and evaluated all the evidence led in this case. I found no evidence of '' all interest and arbitrary deductions made by it in respect of the MORTGAGE FINANCE facility availed the Claimant in the course of his employment with the Defendant ... ''. Neither is there any evidence seen led with respect to the 6th relief sought. When a litigant approaches the Court, prayers sought by him and not just for grab. It is beyond asking and receiving. The asking must be backed with cogent evidence. Otherwise, the litigant who ask will not receive. These reliefs, not having been supported with cogent and reliable evidence are refused and dismissed. Reliefs 7, 8 & 9 are for special damages, general damages and cost of action respectively. It is apparent from the trend of this Judgment thus far that the Claimant has failed to prove entitlement to any of the first 6 reliefs sought. Claims for either special or general damages or both are necessarily predicated on the success of the main claims. In order words, they are subsidiaries and dependent on reliefs already granted if any. In the instant case, no remedy or redress or prayer has been granted to the Claimant. There is therefore no basis for this Court to grant either special or general damages or even cost. The last final 3 reliefs are therefore refused and dismissed for lacking in merit. Having therefore been decided against the Claimant, his entire case collapses like a pack of cards. I thus hold that the Claimant has not led sufficiently credible, cogent and admissible evidence in support of his case. I have no hesitation in dismissing the entire case of the Claimant and I so do. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge