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COURT’S JUDGMENT On December 6, 2013 the claimant filed this complaint against the defendant for the following reliefs: 1. Declaration that the Claimant is entitled to her salaries, bonus and allowances from October 2009 to October 2013 (a period of 48 months). 2. An Order of this Honourable Court mandating the Defendant to immediately pay to the Claimant her salaries, bonus and allowances from October 2009 to October 2013 (a period of 48 months). Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its Statement of Defence together with other processes in compliance with the Rules of this Court. CLAIMANT’S PLEADINGS The case of the claimant is that she is a staff of the Defendant at its Regional Office, Ibadan until December 2009 when she was sent on suspension without pay in relation to some anomalies discovered by the management of the Defendant. She avers that she joined the defendant on November 1, 1991 as a clerical officer and she rose through the ranks to become the Regional Operation Team Leader of the defendant at its Ibadan Regional office when she was suspended. She was then queried, which she averred that she promptly answered. A disciplinary committee was set up by the Defendant to investigate the allegation and that she appeared before the Committee. Thereafter, she was not informed of the decision of the committee neither did she have any other communication with the defendant. She, therefore; decided to file this action. DEFENDANT’S PLEADINGS On the other hand, the case of the defendant is that the claimant was invited to appear before the Disciplinary Committee of the defendant on December 4, 2009 on the allegation of authorization of the posting of all expenses incurred by one Olagoke Akande on specie and fueling of specie vehicles without checking whether the expenses were adequately receipted. The bank continued that the team of investigators it set up found as a fact that the claimant released her password to this Adeola Olodeoku the (HAA), thereby violating the Bank Policy and resulting in the perpetration of fraud on specie and fuel expenses. The defendant continued in its averment that the claimant was queried and she answered the query before she was referred to the disciplinary committee that eventually recommended her summary dismissal for violation of operational guideline of the defendant; the decision, which was communicated to the claimant and all other staff of the defendant through their respective emails addresses. That the claimant’s suit is vexatious, an abuse of Court process and should be dismissed AT TRIAL During hearing of the case, the claimant testified as CW1 and tendered 6 Exhibits; which were marked as Documents C1, C2, C3, C4, C5 and C6. The defendant too called one witness; Mr. Abiodun Ajayi who testified as DW1, he tendered 6 Exhibits that were marked as Documents D1, D2, D3, D4, D5 and D6. In line with the Rules of this Court, counsel to the parties were directed to file their final written addresses by the Court and the counsel with the direction. On April 11, 2018 this matter came up for adoption of Counsel’s final written addresses but counsel to the claimant was absent without any explanation. The Court’s Registrar; Bukky Daudu informed the Court that she had called the claimant’s counsel, Mr S.A. Sanni on his Phone No: 08033343932 on April 5, 2018 and informed him of the adoption that came up on April 11, 2018 and that the counsel confirmed that he will be in Court for the adoption. However, the claimant’s counsel was absent on April 11, 2018 and without any explanation. In the circumstance, the Court invoked the provision of Order 45 Rule 7 of the NICN (CP) Rules, 2017 by deeming the final written address of the claimant as having been adopted. The Court further allowed counsel to the defendant to adopt his final written address on behalf of the defendant which he did. Please see the proceedings of the Court on this case at pages 32 to 35 of the Court’s proceedings’ file on this case. DEFENDANT’S WRITTEN ARGUMENTS The defendant filed its final written address through its counsel and formulated the following issues for determination of the court: 1. Whether the Claimant has made out a case that will entitle her to any of the reliefs being sought in this suit and 2. From the totality of evidence led by the parties in this case, whether the Claimant was dismissed by the Defendant. Arguing the first issue, counsel submitted that the claimant has the onus and duty to frontload the terms and conditions of employment between her and the defendant. He went on that in order to determine the rights duties and obligations of the parties in a contract of employment; it is trite that the Court is required to look at the employee’s letter of employment to see the terms and conditions agreed upon by the parties. Such employee succeeds or fails on express terms stated therein, citing Nnoke v. Judicial Service Committee of the Federal Capital Territory [2015] 54 NLLR (Pt. 184) 518 NICN at 597, paragraph D – F; Idufueko v. Pfizer Products Limited [2014] 12 NWLR (Pt. 1420) SC 96 at 115 and FMC, Ido-Ekiti v. Olajide [2011] 11 NWLR (Pt. 1258) 256. Counsel noted that throughout her depositions in her statement of facts and her evidence in this case, the Claimant did not raise any challenge against her suspension without pay and that she has no claim before this Court for an order to declare the said suspension without pay invalid null and void. In effect, he argued that the suspension without pay still stands and remains in force. Counsel contended that, since the letter of employment of the claimant and the terms and conditions of her employment with the defendant are not before the Court, this Court has no required materials from which it can determine the rights and obligations of the parties in this case; citing the unreported case of Mr. Bamidele Popoola v. African Newspapers of Nigeria Plc. with Suit No: NICN/IB/59/2014; judgment of which was delivered on 16th June 16, 2016. Therefore, counsel urged the court to hold that the claimant, having failed to put his letter of employment and the terms and conditions of her employment in evidence, her case must fail and same should be dismissed; he urged the Court to so hold. Arguing issue two, counsel submitted that the evidence of the DW1 in respect of Exhibit D5 and D6 is in conformity with the provisions of section 84 (1) & (2) of Evidence Act, 2011 and urged the court to admit the content of Documents D5 and D6 as established. He also contended that the claimant was aware of Documents D5 and D6. That this is the same claimant who gave evidence in her written deposition on oath of 6th December, 2013 paragraph 25 thereof that she was placed on suspension without pay through e-mail. Curiously, she denied the receipt of Documents D5 and D6 dismissing her through the same e-mail address. He canvassed that the claimant is not a witness of truth on the issue of receipt of Documents D5 and D6 because they were sent to her via e-mail. He urged the Court to hold that the claimant was dismissed by the defendant and that same was communicated to her through Documents D5 and D6. That since the claimant did not made her dismissal an issue before this court in this suit, it will be inappropriate to go into the merit of her dismissal; citing Longe v. F.B.N. Plc. [2016] 6 NWLR (Pt. 1189) P1 at 37 paragraph A-B. By way of counsel’s short reply on points of law on the claimant’s opposition to the admissibility of Docs. D.4, D.5 and D.6 in its paragraphs 3.15 – 3.17 of her counsel’s address; the defendant’s counsel maintained that the further written statement on oaths of D.W.1 on January 28, 2016 at page 211 of the record and which was adopted on May 31, 2016 at page 22 of the proceedings file; takes care of the provisions of section 84 Evidence Act, 2011 in respect of Documents D.5 & D.6. He went on that D.4 is an internal memo of the defendant; and so, it is not covered by the provisions of section 84 of the Evidence Act. He urged the Court to dismiss the claimant’s claims. CLAIMANT’S WRITTEN ARGUMENTS Counsel to the claimant raised an issue for Court’s determination in his final written address as: Whether or not from the totality of the evidence before the Court, the claimant had discharged the onus of proof placed upon her by law on the preponderance of evidence to entitle her by law on the relief sought in this suit. Arguing the said issue, counsel submitted that the onus is on the claimant to prove and show that he was entitled to all the items listed in his particular of claims; relying the provisions of Sections 136, 137 & 138 if the Evidence Act. He also cited in support, the case of Sunday Uzokwe v. Dansy Industries Nigeria Limited and Anor [2002] 2 SCM 159. Counsel argued further that in the instant case, the claimant’s evidence in chief as contained in her depositions sworn to on December 6, 2013 and October 27, 2014; which were adopted before the Court are to the effect that the claimant’s employment was not terminated in accordance with the terms of her employment. He went on that with effect from August 2009, the claimant became the Regional Operation Team Leader ((ROTL)) of Ibadan Region for the Defendant and that she was in charge of 17 branches at the material; charged with the responsibility of ensuring that every expense incurred was duly authenticated and receipted for before same was posted into the profit and loss ledger of the branches. Counsel continued that this evidence remains unchallenged and uncontroverted by the defendant. In addition, counsel conceded that the law governing master and servant relationship is subject to both statutory and common law rules, whereby the master can terminate the contact of the servant at any time and for any reason or even no reason at all, citing Olaniyan v. University of Lagos [1982/5]2 NWLR (Pt. 9) 599 @ 612 and NITEL v. Akwa [2006] 2 NWLR (Pt. 964) 391. Counsel noted that while it is the contention of the defendant that the claimant was suspended for violation of operational guideline, which amount to misconduct on the part of the claimant and constitutes major basis for the claimant’s dismissal; the purported document upon which the defendant claimed to be the operational guideline upon which the defendant acted was never produced. Hence, counsel urged the Court to hold that the purported operational guide line does not exist and that in the event that same exists, the defendant intentionally withheld it knowing that the tendering of same will speak contrary to the contention of the defendant’s case; citing Iwuanyawu v. Minister for Agriculture & Water Resources & Anor. [2016] LPELR-40208 (CA); Teju Investment and Property Co. Ltd v. Subair [2016] LPELR-40087 (CA) and Babalola v. Badmus-Wellington [1998] 11 NWLR (Pt. 572) 167 @ 176 . Counsel also submitted that the Documents D4, D5 and D6 relied on by the defendant are electronically generated documents and that they are not admissible as the condition precedent to their admissibility were not fulfilled by the defendant; citing Section 84 of the Evidence Act; Dickson v. Sylva & Ors [2016] LPELR-41257 (SC) and N.I.I.A v. Ayanfalu [2007] 2 NWLR (Pt. 1078) 246 @ 270 paras B - C. On the whole, counsel to the claimant submitted that the claimant has discharged the onus of proof placed on her by law on the preponderance of evidence to entitle her to the grant of the relief being sought in this suit and urged the Court to so hold. COURT’S DECISION Having gone through the facts of this case as pleaded, the testimonies of the parties and the written arguments of their counsel, I am of the considered view that the only issue to resolve by the Court is: Whether or not the claimant is entitled to claim from the defendant; her salaries, bonus and allowances from October 2009 to October 2013 (a period of 48 months). Before deciding on the merit of this case, let me determine some preliminary questions raised by counsel to the parties in their written arguments. Firstly, both counsel argued profusely on the merits and demerits of the suspension of the claimant without pay and on whether or not the employment of the claimant was actually determined (summarily dismissed) by the defendant. As shown earlier in this judgment, the claimant is seeking for the Court’s declaration that she is entitled to her salaries, bonus and allowances from October 2009 to October 2013 and for an Order of this Court mandating the defendant to pay her the said salaries, bonus and allowances. The claimant is not asserting that she was wrongly suspended neither is she claiming that her employment was wrongly determined either by termination or by dismissal in her pleadings and in her evidence before the Court. However, at paragraph 3.1 of the claimant’s final written address, her counsel contended that: --- The claimant by her claim contends that even up till commencement of this suit, she remains an employee of the defendant bank by virtue of her contract of employment which subsists same; not having been determined by due process of law. See also the arguments of the claimant’s counsel in paragraphs 3.4, 3.8, 3.11, 3.14, 3.15 and 3.18 of his final written address on the wrongful determination of the claimant by the defendant. It is trite that the claimant’s counsel is not allowed to give evidence in his address; he is rather only allowed to build his arguments on the pleadings and evidence of the claimant before the Court. This is because, address of counsel no matter how brilliant cannot take the place of evidence; see the cases of UBN Plc. & Anor v. Ayodare & Sons (Nig.)[2007] All FWLR (Pt. 383)1 at 42 paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 1623. To this extent, I find and hold that all arguments of the counsel on issues not pleaded and on evidence not given before the Court; like the of service of the dismissal letter on the claimant, whether the claimant was suspended and whether the defendant has power to suspend the claimant without pay; are accordingly discountenanced in this judgment. This is because these issues were not raised by the claimant in her complaint against the defendant and in her pleadings before the Court. Secondly, the claimant’s counsel challenged the admissibility of Documents D4, D5 and D6 relied on by the defendant in this case. Document D.4 is titled ‘Report of the Disciplinary Committee held on December 04, 2009’; Document D.5 is titled ‘Disciplinary Sanctions dated Monday December 21, 2009 to all staff’ while Document D.6 is titled ‘Amended Disciplinary Sanctions dated Tuesday December 22, 2009 to all staff’. Document D.4 was put in evidence to establish the fact that the claimant appeared before the Disciplinary Committee of the defendant on the allegation of authorization of the posting of all expenses incurred by one Olagoke Akande on specie and fuelling of specie vehicles without checking whether the expenses were adequately receipted against her. Documents D.5 & D.6 were put in evidence to confirm the defendant’s position that the Bank gave the claimant notice of her summary dismissal after been dissatisfied with her defence before the Disciplinary Committee. I have held above that the issue of determination of the claimant’s employment by the defendant is not before this Court in this suit. I have also held above that all pleadings, evidence and written arguments on these issues are irrelevant and they are accordingly discountenanced. Hence, I do not need to belabour myself on resolving the admissibility or otherwise of these three documents being challenged by the claimant because they are not relevant on this case and I so hold. Can the claimant claim from the defendant; her salaries, bonus and allowances from October 2009 to October 2013? For the claimant to succeed on this claim, she is required to justify her entitlement to these payments to the satisfaction of the Court. Is the claimant seeking for these payments as arrears that she legitimately earned? If the answer is in the affirmative; then how did she earn the payments and why were they not paid as at when due? In order to buttress her claims, the claimant frontloaded and relied on six documents. Five of them are letters of promotions, one is letter of monetized award and the last one is her letter of appointment as Regional Operation Team Lead. See pages 16 to 21 of the record. None of these Documents shows how the claimant’s salaries, bonus and allowances from October 2009 to October 2013 accrued to her from the defendant. In other words, there is no evidence of the terms and conditions of the contract of employment between the parties before the Court from which this Court can determine whether the claimant is entitled to these reliefs. The Law is that the party who asserts a fact must prove same. He also has the onus to place before the Court, the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of her employer who is the defendant to her action, to prove such breach; see the cases of West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-190 paras D-A at 189 paras; Idufueko v. Pfizer Products Ltd. [2014] 12 NWLR (Pt. 1420) SC 96 at 115 paras C-E; Idehen v. Registered Trustees Ikoyi Club 1938 [2014] 45 NLLR (Pt. 145) 558 and Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083. Since the claimant failed to show the Court how the payments she is claiming from the defendant accrued to her, I find and hold that the claimant is not entitled to the payments in question. The claimant’s claims fail and they are accordingly dismissed. Judgment is hereby entered accordingly. I make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge