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By his Complaint dated 4th June, 2012 and filed same date the claimant seek the following reliefs: 1. A declaration that the dismissal of the claimant vide the respondent’s letter dated 17th April, 2012 is null and void and of no effect whatsoever having been done in contravention of the conditions of service of the respondent. 2. An order of court reinstating the claimant to his employment with the respondent and payment of all his emoluments from the date of his suspension up to date of judgment. 3. An order directing the respondent to pay the claimant’s salary for the month of December, 2011. 4. Cost of filing and prosecuting this suit. Accompanying the Complaint is Statement of Claim, Documents to be relied upon at trial, Witness Statement on Oath and List of Witness. In response, the respondent filed a memorandum of appearance dated 16th July, 2012, Statement of Defence, Document to be relied upon at trial, List of Witnesses and Witness Statement on Oath. From the Statement of Claim, the claimant pleaded that he joined the employment of the respondent in September, 1998 as a Clerk on salary of N7,655.00 per annum. That in recognition of his dedication to duty and hard work the respondent in October, 2004 promoted him to Senior Clerk, Notch 10 with effect from 18th October, 2004 and in March, 2008 was once again promoted to Supervisor. That while in the employment he acquired additional qualification which led the respondent to grade him as Officer II with effect from 1st May, 2010. That in 2011 he was promoted from the rank of Supervisor II to Assistant Manager with effect from 1st January, 2011. That his employment with the respondent is an employment with statutory flavor as it is governed by the conditions of service of the respondent tagged: “Human Resources Manual”. That in October, 2010 he was recalled from leave and on his resumption, he was assigned a new portfolio as the Head of Operations, a terrain he was treading on for the first time. He pleaded that in process of discharging his duties he had to counter sign some cheques which later turned out to be fraudulent which he did not know of. That when the respondent detected the fraudulent dealings it caused a query dated 12/04/11 to be issued to him and he replied. On receipt of the reply, the respondent suspended him from duty and ordered him to repay the amount involved along with two other staff of the respondent. The claimant pleaded that according to the letter of suspension the respondent undertook to inform him of any further discoveries if made. That he was not confronted with any new allegations but to his utmost shock and disbelief, he was served with the respondent’s letter dated 6th March, 2012 disengaging him from service with effect from 29th February, 2012. That he was invited to a meeting by a letter dated 20/02/12 but he was not confronted with anything new. That on 30th March, 2012 he had to complain to the respondent for non-payment of his December, 2011 salary and in response via its letter dated 4th April, 2012 the respondent stated that it had noted his complaint while at the same time requesting him to return the original letter of disengagement given to him for rectification. That he dutifully returned the said letter of disengagement through a forwarding letter dated 12th April, 2012. That to his shock and disappointment the respondent made a u-turn by serving him a letter of dismissal dated 17th April, 2012 but the dismissal was back dated in an attempt to avoid the payment of his December, 2011 salary. That having answered the query and considering the allegation against him which tantamount to gross misconduct his case ought to have been referred to the Staff Promotion and Disciplinary Committee as provided in paragraph 4.3 1 (d) of the respondent’s condition of service. That the respondent by executive fiat denied him his salary for the month of December, 2011 as contained in the salary review of 17th January, 2011. He finally repeated his claim as per his complaint. In its defence the respondent denied paragraphs 11 and 12 of the Statement of Facts but stated that it was the claimant who initiated and executed the fraudulent deal using his new found position as Acting Account and Head of Operation, Bauchi Branch in perpetuating the fraud in order to settle his indebtedness. That the fraudulent dealings which led to the claimant’s dismissal were not from lack of experience but insatiability and greediness. The respondent pleaded that it was the claimant that masterminded the fraudulent transfer using back office procedure and consequently sought the assistance of two other staff of the respondent by names Nasiru Abdu and Ahmed Gimba in order to succeed and all the vouchers and cheques used therein were cleared by the claimant. That it was not the respondent that detected the fraud contrary to the averment in paragraph 12 of Statement of Facts. That it was the claimant that exposed the deal by reporting to the Managing Director explaining how it was carried out. That the claimant sought the assistance of respondent’s branch managers of Azare and Bauchi in reaching the Managing Director and appealing for leniency. The respondent pleaded that the claimant has on several occasions accepted full responsibility of the fraud and one of such instances was when he appeared before the investigation panel on 8/4/2011. That in response to paragraph 13 of Statement of Facts, the respondent states that the claimant deliberately omitted the copy of reply to the query as part of document to rely upon having known that he has admitted the fraud therein and appealed to the management of the respondent to give him more time to pay his own portion of the loot. That in addition to the claimant’s admission of the fraudulent dealings in his reply to the query, he sent along with the reply an undertaking to pay the sum of N4,347,501.20k. That the respondent denies paragraphs 16 and 17 of the Statement of Facts and pleads that the claimant was invited for a meeting on 13/12/11 and 15/12/11 and had made further clarifications and admission relating to the fraudulent transfer. In denying paragraph 19 of Statement of Facts and the respondent states that the claimant was confronted with new fraud discovered by the respondent amounting to N7,000,000.00 consequent upon which he made an undertaking to make any information available to the respondent. That the claimant in complying with the demand of the respondent in respect of the invitation letter for a meeting dated 20th February, 2012 attended the meeting with his brother Alhaji Farouk Gambo Jahun who agreed to serve as surety for him and equally signed the letter of undertaking. The respondent further pleaded that owing to the claimant’s acceptance of responsibility and in his effort to settle his own portion of fraudulent transfer willingly surrendered his landed property including an Opera Astra car to the respondent and made several payments as earlier undertaken in his reply to query. That copies of the said title documents, valuation report, power of attorney executed by the claimant in favour of the respondent, claimant’s letter forwarding his Opera Astra vehicle dated 7/6/11 and Bank tellers indicating refund made by the claimant are attached and pleaded to be relied upon. That a committee did investigate the claimant and he was accorded fair hearing throughout the period of the investigation. That part of the committee’s interim report to the management recommended the involvement of the Police into the investigation activity and same was approved by the management. That as a result of the involvement of the Police in the investigation process, more revelation and recoveries were achieved from the claimant and his allies which cumulatively led to the Board of Directors’ resolution directing the summary dismissal of the claimant and his accomplice. The respondent pleaded that its decision to withdraw the letter of disengagement from service and issued the claimant with a dismissal letter has been clearly stated in the letter dated 17th April, 2012. That the respondent did not contravene any of the provisions of its conditions of service and the claimant’s dismissal was in order. That the claimant is not entitled to December, 2011 salary. The respondent urged the court to dismiss the claimant’s claim in paragraph 27 of Statement of Facts as being frivolous, unfounded and an act of gold digging. Trial in this case commenced on 27th September, 2012 when the claimant opened his case testifying on his own behalf as PW1. He adopted his Witness Statement on Oath sworn to on 4th June, 2012 which was in the same terms as Statement of Facts as well as the documents attached thereto. During cross-examination, the PW1 stated that before his dismissal he was acting head of operations at Bauchi Branch of the respondent but presently engage in selling land. He stated that he has not taken any formal appointment. That he was not appointed Special Assistant to the Bauchi State Governor. That he was not given fair hearing before dismissing him. The PW1 admitted that he was invited to a meeting on 8/4/2011 and that he made a written statement. That he was queried on 12/4/2011 to which he made a written reply on the said date and that in the query he admitted the fraud that led to his dismissal. That it is true that he undertook to pay the sum of N4,357,501.20 in his own handwriting. He admitted that he was again invited for a meeting on 13th and 15th December, 2012 in respect of fraud and in the meeting of 13th December, 2011 questions were put to him and he answered them. That he was again invited for a meeting on 21st February, 2012 in respect of the issue of fraud. That he signed an undertaking to make information available to the respondent in respect of the fraud. That in pursuance of the undertaking he surrendered his title documents to the respondent and donated power of attorney dated 16th June, 2011 in favour of the respondent donating his property in fulfillment of the undertaking of 12/4/2011. He admitted donating his Opel Astra car to the respondent in fulfillment of the agreement of 12/4/2011 and made several payments to meet up the payment of the said sum involved in the fraud. He admitted being invited severally to the Criminal Investigation Department of the State Police Command in respect of the said fraud. That he made some of the payments through the Investigation Police Officer. The PW1 admitted that the said fraud was committed between 4th November, 2010 and 17th December, 2010 and that he counter signed some of the vouchers used in committing the fraud. He admitted benefitting from the fraud and he reported the fraud to the management of the respondent. There was no re-examination and the claimant closed his case. The respondent’s counsel informed the court that the respondent did not wish to call any witness but will rely on the case of the claimant and the documents filed to argue its case. Consequently, the court ordered the parties to file their respective Final Written Addresses in line with Order 19 of the NIC Rules, 2007. The claimant’s Final Written Address is dated 10th October, 2012 but filed on 11th October, 2012. The respondent’s Final Written Address is dated 7th November, 2012 but filed on 8th November, 2012. The claimant also filed a reply on points of law dated 28th November, 2012 but filed on 29th November, 2012. The claimant’s counsel formulated three issues for determination by this court as follows: 1. Whether the respondent has the power in law to dismiss the claimant retrospectively. 2. If the answer to (a) is in the negative, whether the dismissal letter dated 17/4/12 issued to the claimant can stand. 3. Whether if the above issues are resolved in the claimant’s favour the claimant has a remedy in law. On issue one, Learned Counsel to the claimant conceded that in view of the allegations against the claimant and his response in consequence of which he admitted participating in the fraud, the respondent has the power to dismiss the claimant but such power cannot be exercised to operate retrospectively citing the case of Abenga v. B.S.J.S.C [2006] 14 NWLR (pt. 1000) p. 610 at pp 620 – 621, Benue Cement Company Plc v. Ager [2010] 21 N.L.L.R (pt. 59) p. 256 at 259 v. 3. He submitted that based on the authorities cited the respondent cannot back date the dismissal of the claimant to 1st November, 2011 as it purported to have done. On issue two, Learned Counsel adopted his submission in issue one above and submitted that the dismissal letter dated 17/4/12 but back dated to take effect from 1/11/11 cannot stand as same is a nullity and accordingly urged this court to so hold. On issue three, the Learned Counsel submitted that if the dismissal letter issued to the claimant is declared a nullity, then the claimant is entitled to reinstatement since his employment is one with statutory flavor. He cited the case of Omidiora v. F.C.S.C [2007] 14 NWLR (pt. 1053) p. 17. He submitted further that the claimant is also entitled to payment of his salary from December, 2011 to date of judgment citing Tamti v. N.C.S.B [2009] 7 NWLR (pt. 1141) p. 631 at pages 658 to 659. The respondent on its part formulated five issues for determination as follows: 1. Whether non-compliance with the statute regulating the claimant’s appointment with the respondent by the claimant before instituting this action is fatal. 2. Whether the claimant’s dismissal by the respondent which was made after conclusion of investigation could be said to be retrospective. 3. Whether the respondent gave the claimant fair hearing before dismissing him from service having regard to the facts and circumstances in this suit. 4. Whether the claimant can be allowed to introduce a new issue at address stage which was not his case at the trial. 5. Whether the court can force an unwanted employee on the employer who has complied with the enabling statutes in dismissing the employee. Arguing issue one, Learned Counsel submitted that the claimant failed to comply with the provisions of Chapter 8 paragraph 8.2 of the Human Resources Manual a statute regulating his employment with the respondent before instituting the present action and that the said non-compliance is capable of robbing this court of its jurisdiction to try this matter. Learned Counsel further submitted that the claimant’s employment is governed by the respondent’s condition of service tagged “Human Resources Manual”. He submitted that the relevant paragraphs are 8.2, 8.2.1, 8.2.2, 8.2.3, 8.2.4 and 8.2.5. That the claimant having failed to explore the grievance procedure inherent in the Human Resources Manual has indeed abused the condition precedent before commencing this action and such non-compliance is fatal to his action and capable of robbing the court of its jurisdiction. He referred the court to the case of Gafar v. Kwara State [2007] 4 SCM p. 110 at 115, Abdulhamid v. Akar & Anor [2006] 8 – 9 SCM p. 1 at p.6, Mozie & Ors v. Mbamulu & Ors [2006] 12 SCM pt. 1 306 at 306. On issue two, Learned Counsel submitted that the claimant was dismissed after conclusion of investigation by the respondent and that it is in evidence that the fraud which led to the claimant’s dismissal was committed between 4th November and 17th December, 2010. Counsel stated that it was an uncontroverted fact that the claimant admitted involvement in the fraud and promised to pay whatever amount he benefited from and that he was dismissed from service on 17th April, 2012 but effective from 1st November, 2011. He submitted further that in determining whether or not the claimant is dismissed retrospectively recourse must be had to the date the misconduct was committed and the statute. He submitted that investigation was deemed concluded from the time the claimant admitted the allegation of misconduct against him. He also submitted that the only thing that vitiate a retrospective dismissal is when it is done without hearing as held by Supreme Court in Bakare v. Lagos State Civil Service Commission [1992] 8 NWLR (pt. 262) p. 642 at 676 – 677. Learned Counsel submitted that the evidence before the court show that the claimant was accorded fair hearing by the respondent before finally dismissing him and his dismissal was done in accordance with the statute governing his service. That the claimant could not point to a single provision of the statute that was breached in his trial and dismissal. That the dismissal of the claimant is not retrospective in the sense in which it is used in the cases cited by the claimant and therefore distinguishable. Learned Counsel further submitted that to determine whether the dismissal of an employee is proper or unlawful is to determine whether the procedure adopted in effecting the dismissal conform with the conditions laid down in the terms of employment of aggrieved employee citing Ndili v. Akinsunmade [2000] 8 NWLR (pt. 668) p. 293 at 34. He submitted that the claimant failed to discharge the duty imposed on him to prove that his dismissal was unlawful, null and void as he failed to place evidence to convince the court that there was indeed a departure from the prescribed procedure citing the case of Imonikhe v. Unity Bank Plc [2011] Vol. 46 (pt. 11) NSCQR p. 554 at 558. Counsel submitted that accusing an employee of misconduct by way of a query and allowing him to answer the query before a decision is taken satisfies the requirement of fair-hearing or natural justice citing Imonikhe v. Unity Bank Plc (Supra). That since the claimant answered the queries before he was dismissed, he was accorded fair hearing and his dismissal is not retrospective. Learned Counsel also submitted that assuming that the dismissal of the claimant was retrospective, the claimant did not lead evidence to show that it has occasioned any miscarriage of justice on him. Arguing issue three, Learned Counsel submitted that the claimant was accorded fair hearing by the respondent before dismissing him from service. He referred to exhibits attached to paragraphs 9, 11, 12, 14, 17 and 19 of the Statement of Defence to submit that all necessary steps required in investigating the claimant as laid down in Chapter 9 of the Human Resources Manual were duly complied with. He submitted that paragraph 9.2 (b) (i) of the respondent’s Human Resources Manual empowers the respondent to dismiss the claimant having established a case of gross misconduct against him. He further submitted that it is trite law that once an employee is accused of misconduct by way of query and he answers it before a decision is taken satisfies the requirement of fair hearing or natural justice citing the case of Imonikhe v. Unity Bank Plc (Supra). In his submission, Learned Counsel stated that a dismissal of an employee whose employment has a statutory flavor can only be declared null and void where the employer fails to comply with the procedure laid down by the statute. He referred to the case of Oloruntoba-Oju & Ors v. University of Ilorin [2009] 7 SCM p. 118 at 127. On issue four, Learned Counsel submitted that the claimant cannot by argument of counsel introduce a new case at the trial when no evidence was led in respect of the issue. He submitted that in his address the claimant’s counsel invited the court to determine whether or not the respondent has power to dismiss the claimant retrospectively and concluded his argument on the issue without touching on issues canvassed at the trial. He submitted that a party cannot make out a case on the address of counsel but on facts pleaded and evidence adduced in support of such facts citing the case of Oloruntoba-Oju & Ors v. The University of Ilorin (Supra). He submitted that failure of Counsel to the claimant to address the court on his claim 27 (a) set out in his pleading is fatal to his case. He added that it is trite law that court is without power to grant to a party what he failed to plead and that the court as well as parties are bound by pleading citing the case of Nwaga v. Regd. Trustees Recreation Club [2004] FWLR (pt. 190) p. 136. That the court should not set up for parties a case different from the one set up by them in their pleadings and evidence citing the case of Olufeagba & Ors. V. Abduraheem & Anor [2009] 11 – 12 (pt. 1) SCM p. 125 at 133. Arguing issue five, Learned Counsel submitted that the respondent was able to demonstrate that he has complied with the statute before dismissing the claimant. That it is trite law that a court cannot compel an employer to employ an employee unless special circumstances are shown to compel an employer to employ an employee. He referred to the case of Olatunbosun v. N.I.S.E.R [1988] 3 NWLR (pt. 80) p. 25. He submitted that by the condition of service of the respondent it has power to discipline erring employee and such discipline could be dismissal or otherwise and that the power of the respondent to dismiss is a disciplinary measure especially in case of gross misconduct has received judicial approval by the Supreme Court in the case of Eze v. Spring Bank Plc [2011] 11 – 12 (pt. 1) SCM p. 93 at 95. He urged the court to uphold the submission of the respondent and dismiss the claimant’s suit. In his Reply on Points of Law, he submitted that the position taken by the respondent that the claimant had failed to comply with paragraph 8 of the Human Resource Manual and concludes that the matter was incompetent for the same reason is not only misconceived but baseless. That paragraph 8 of Human Resources Manual was merely inserted for administrative convenience and its contravention cannot have any legal consequences. Learned Counsel also submitted that the argument of the respondent that a new issue cannot be introduced in address is mischievous and a calculated attempt to mislead the court. He submitted that the only issue the claimant addressed the court is borne out not only by the pleadings but also by the issues raised. Counsel urged the court to discountenance the submission of the respondent. I have carefully considered the facts of this case, the processes filed, the evidence adduced, the submissions of counsel and the judicial authorities cited. From the evidence before the court, the claimant who was a staff of the respondent as Head of Branch Operations, Bauchi Branch was involved in fraud in company of two other staff. The claimant and his cohorts admitted to have fraudulently transferred the sum of N13,076,056.60 belonging to the respondent through back office transfer at the Bauchi Branch of the respondent bank, a fact which is common ground between the parties. The claimant was queried to explain his involvement in the fraud and in his answer admitted committing the fraud and agreed to refund the respondent’s money. Consequently, the respondent suspended the claimant from duty pending investigation by a letter dated 4th May, 2011. Thereafter, by its letter of 6th March, 2012 the respondent disengaged the claimant from service with effect from 29th February, 2012. The respondent further dismissed the claimant from service via a letter dated 17th April, 2012 with effect from 1st November, 2011. It is important to point out the misconception of the law by counsel in this case. Counsel for both parties in this suit argued that the employment of the claimant is with statutory flavor the terms of the contract having being regulated by the Human Resources Manual of the respondent. It is on this misconception that the claimant’s counsel argued that if the dismissal of the claimant is a nullity, and so he is entitled to reinstatement since his employment is with statutory flavor. In the case of Azenabor v. Bayero University, Kano & Anor [2011] 25 N.L.L.R (pt. 70) p. 45 at p. 61 it was held that, “an employment is said to have statutory flavor when the appointment is protected by statute. An employment is protected by statute when statutory provisions govern the appointment and determination wherein the procedure for employment and discipline of an employee are clearly spelt out. Where an appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavor.” See also Udo v. C.R.S.N.C [2001] 14 NWLR (pt. 732) p. 116, Geidam v. N.E.P.A [2001] 2 NWLR (pt. 696) p. 45, NITEL v. Ocholi [2001] 10 NWLR (pt. 720) p. 188. I have carefully considered the Human Resources Manual relied upon by both counsel to the effect that the claimant’s employment is with statutory flavor, but I have been unable to see anything statutory therein. The manual contains terms and conditions that govern the master and servant relationship of the parties in this suit but it is not a creation of statute. The Human Resources Manual referred to is not a statute neither is the respondent a creation of any known law. It is therefore, a misconception of the law to argue that Human Resources Manual makes the claimant’s employment one with statutory flavor. Consequently, I hold that the employment of the claimant is without statutory flavor. The claimant’s counsel argued that the power to dismiss the claimant in this suit cannot be exercised to operate retrospectively. That the respondent cannot back date the dismissal of the claimant to 1st November, 2011. It is in evidence that by its letter dated 6th March, 2012 the respondent disengaged the claimant from its service with effect from 29th February, 2012. The respondent later dismissed the claimant from service by a letter dated 17th April, 2012 to take effect from 1st November, 2011. By the said letter of 6th March, 2012 the respondent has expressed its intention to terminate the employment of the claimant on 29th February, 2012. The respondent’s letter dated 17th April, 2012 dismissing the claimant with effect from 1st November, 2011 is therefore superfluous and an effort in futility. It is like flogging a dead horse. By the time the respondent issued its dismissal letter dated 17th April, 2012, the claimant was no longer in its employment. There was therefore no employment to dismiss. It follows that the respondent did not have the power to dismiss the claimant retrospectively. It is settled law that an employer cannot dismiss an employee with retrospective effect. A decision by an employer to dismiss an employee takes effect from the date of the decision or a later date. See Abenga v. B.S.J.S.C [2006] 14 NWLR (pt. 1000) p. 610 at 620 para F – B, Bakare v. L.S.C.S.C [1992] 8 NWLR (pt. 262) p. 641, Boston Deep Sea Fishing & Ice Co. v. Ansell [1886 – 1890] All ER 65, Benue Cement Company Plc v. Ager [2010] 21 N.L.L.R (pt. 59) p. 256 at 273. In view of the above, the letter of dismissal dated 17th April, 2012 issued to the claimant is hereby set aside. I have earlier held that the employment of the claimant is not clothed with statutory flavor. Therefore, the claimant’s claim for reinstatement in the circumstance cannot be granted. The claimant also claimed an order of this court directing the respondent to pay his salary for the month of December, 2011. The claimant adduced facts in his pleading, that is, Statement of Facts and his Statement of Witness on Oath that the respondent has not paid his December, 2011 salary in the sum of N49,590.59. In his letter dated 30th March, 2012 and 12th April, 2012 the claimant demanded payment of his December, 2011 salary. In its reply letter dated 4th April, 2012, the respondent noted the request of the claimant but did not do anything in respect of the said salary. In its Statement of Defence, the respondent averred that the claimant is not entitled to his December, 2011 salary without more. The defence of the respondent did not appeal to me as substantial denial. It is clear that the respondent denied the claimant’s entitlement to his December, 2011 salary because it served the claimant with a dismissal letter effective 1st November, 2011. This court has hereinbefore, declared the dismissal of the claimant null and void. It follows that the claimant is entitled to his December, 2011 salary as claimed and I so hold. For the avoidance of doubt, I hold and order as follows: 1. The dismissal of the claimant by the respondent vide letter dated 17th April, 2012 is hereby set aside. 2. The dismissal of the claimant is substituted with termination of employment. 3. The claimant’s claim for reinstatement is hereby refused. 4. In consequence, the respondent is to pay the claimant his salary for the month of December, 2011 less any indebtedness to the respondent. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge