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REPRESENTATION: Chief M. I. Ahamba SAN; with him, E. Ichie esq, A. E. Anuforom (Miss), and K. O. Ahamba esq, for the Claimant D. C. Denwigwe SAN; with him, O. S. Akinola esq, Defendant JUDGMENT By a Complaint dated and filed on the 11th day of December 2012, the Claimant claimed the following reliefs against the Defendants: a) A Declaration that the Claimant was never involved in any fraudulent activity with Paul Raul Resources account No. 0012350000372 or any other account at the Eziukwu Road Branch Aba, or elsewhere. b) A Declaration that the dismissal of the Claimant from the employment of the Defendant was wrongful and malicious, the same being without any just cause. c) A Declaration that the blacklisting of the Claimant by the Defendant at the Central Bank of Nigeria was wrongful and malicious. d) Special and general damages for wrongful dismissal and libel made up as follows:- i. Special damages for wrongful dismissal made up of loss of emolument until the determination of this suit calculated at N6.5 million per annum. ii. N217, 000,000.00 (Two hundred and seventeen million naira) damages being anticipated future earning in the banking industry. iii. N200,000,000.00 (Two hundred Million Naira) being general damages for wrongful dismissal. iv. N200,000,000.00 (Two hundred Million Naira) being general damages for libel published to the Central Bank of Nigeria relating to claimant’s profession. The Complaint was accompanied with Statement of Claim establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance on the 11th day of February 2013. Thereafter, on the 24th of June 2013, the Defendant filed a Statement of Defence, list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The Claimant on the 4th of July 2013 filed a Reply to the statement of defence along with additional documents in support of his case. The case proceeded to hearing on the 10th day of October 2013. The parties fielded a witness each. The claimant testified on behalf of himself as CW1, while Kenechukwu Nwosu, an Employee’s Human Resource Manager with the defendant testified as DW1. Hearing was concluded by the 17th day of December 2013, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on the 31st day of December 2013 and the Claimant’s written address was filed on the 27th day of January 2014. Thereafter, the Defendant filed a Reply on points of Law on the 31st day of January 2014. They adopted their respective written addresses on the 26th day of February 2014. Before I proceed, let me point out that the Claimant referred to his pleadings as “Statement of Claim” rather than “Statement of Facts” as provided for in Order 3 Rule (4) (i) of the National Industrial Court Rules 2007. This the court views as a mere irregularity, and in accordance with the provisions of Order 5 Rule 1 of the Rules of Court, will refer to it as “Statement of Claim” all through this judgment, for the purpose of consistency. In his written address, the learned silk, counsel for the defendant nominated 5 issues for the determination of the court as follows:- (a) Whether the jurisdiction of the National Industrial Court extends to any claim of damages for defamation and if not, then whether the relief number 25(d)(iv) in this suit is competent; (b) Whether the claimant’s reliefs numbers 25(d) (i) to (iii) amount to a claim for double compensation; (c) Whether the claimant has proved that the defendant blacklisted him at the Central Bank of Nigeria; (d) Whether the documents which were admitted in evidence as Exhibits “C3”, “C4”, “C14” and “C18” have any evidential value; (e) Whether the claimant has proved any claim to a relief against the defendant. In arguing issue (a) which is whether the jurisdiction of the National Industrial Court extends to any claim of damages for defamation and if not then whether the relief number 25(d)(iv) in this suit is competent; it was submitted that the jurisdiction of the National Industrial Court, being a special court, is established for those subject matters which are clearly spelt out in Section 254C(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Reference was made to various papers presented on the subject at various fora. It was further submitted that the claim for damages for libel is a substantive relief sought by the Claimant, and that a claim for damages for defamation is a subject matter which is not justifiable in the National Industrial Court, and that even if it was, the Claimant will not be entitled to the relief because he has not alleged slander, but has alleged libel by communication in writing by the defendant to the Central Bank; and this requires that it be specifically pleaded and proved, in order to succeed. GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (Pt. 1256) 574 @ 588 – 589; that the offending article must be produced verbatim, and not a mere reference to it as in this case where the claimant simply pleaded and testified that Standard Chartered Bank terminated his employment because a background check with CBN revealed that he had been blacklisted as a fallout from his previous employment with the defendant, in view of which they are unable to recommend the Claimant for employment. To the defendant, having pleaded and testified that it had a duty to submit to the Central Bank of Nigeria, reports on its activities, the defence of privilege will avail the defendant of any defamatory effect of such reports. See AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) 3NWLR (Pt.1181) 338 @ 351; EDEM vs. ORPHEO (NIG) LTD. (2003) 13 NWLR (Pt. 838) 537 at 558. Counsel urged the court to resolve this issue in favour of the defendant. In arguing issue (b) which is whether the Claimant’s reliefs No 25(d) (i) to (iii) amount to a claim for double compensation, it is the defendant’s submission that the reliefs, having not been sought in the alternative, would amount to double compensation if granted. He said the object of award of damages for breach of contract (which seems to be the Claimant’s claim), is “restitutio in integrum” (i.e. to restore the aggrieved victim to the position which he would have occupied if the breach had not occurred). The Claimant’s claim (summed up to N617m), the defendant states, offends sound principles of law, and cannot be granted, as it would amount to double compensation. He referred the court to the cases of ODIBA vs. AZEGE (1998) 9NWLR (Pt. 566) 370; IYERE vs. B.F.F.M. LTD (2008) 18 NWLR (Pt.1119) 300; OANDO (NIG.) PLC. vs. ADIJERE (W/A) LTD. (2013) 15 NWLR (Pt. 1377) 374 at 395; and also S.P.D.C. vs. OKONEDO (2008) 9NWLR (Pt.1091) 85; and urged the court to resolve this issue in favour of the defendant. On issue (c), whether the claimant has proved that the defendant blacklisted him at the Central Bank of Nigeria, it was argued that Exhibits C3, C4, C14 and C18 have no evidential value as they are not signed; and the fact that they were admitted without objection does not ascribe any value to them. In urging the court to expunge the said documents for being legally inadmissible and therefore decide this issue in favour of the defendant, counsel cited the cases of DANTIYE vs. KANYA (2009) 4 NWLR (Pt. 1130) 13 @ 39; SLB CONSORTIUM vs. NNPC (2011) 9 NWLR (Pt.1252) 317 @ 331 – 332; FASEHUN vs. A-G FEDERATION (2006) 6NWLR (Pt.975) 141 @ 157 and NWOGU vs. ATUMA (2013) 11 NWLR (Pt. 1364) 167 @136-137. On issue (d), whether the documents which were admitted as Exhibits “C3”, “C4”, “C14”and “C18” have any evidential value, it was submitted that the Claimant, having not called any witness from the Central Bank of Nigeria or from standard Chartered Bank to prove that the defendant blacklisted him, that assertion of being blacklisted, remains bare without any credible or reliable evidential support, especially having been denied by the defence, and the claimant having admitted under cross examination that the defendant has a duty to file reports to CBN. The court was urged to also decide this issue in favour of the defendant. On issue (e), whether the claimant has proved any claim to a relief against the defendant, Counsel stated that the employment of the claimant did not have a statutory coloration but regulated by the domestic policies of the defendant and the Central Bank of Nigeria; a fact which he said, claimant admitted under cross-examination. It was further argued that the Claimant never pleaded any existence of any staff conditions of service between him and the defendant, and the fact that the terms and conditions of the employment of the claimant is not in evidence on record is fatal to the Claimant’s suit. That the best the court can do is to treat the relationship between the Claimant and the Defendant as a mere contract of employment at common law with its legal incidentals. It was further submitted that the defendant satisfied all the legal requirements of common law for the lawful dismissal of the claimant, and that the claimant as CW1, admitted under cross-examination the following; i. The fact that the bank suspected a fraud ii. The bank set up an investigation into the fraud. iii. That he the claimant was among the suspects iv. That he appeared before the investigative panel and answered to the query. v. The bank did not exonerate him from the fraud vi. The bank did not accede to his appeal against his dismissal. Counsel also stated that the Claimant admitted that he was cautioned on June 12 2008 for flagrant abuse of the defendant’s Term over Draft (TOD) policy. It was then submitted that at common law, the defendant is not required to comply with any other condition before its lawful dismissal of the claimant, relying on the authority of DUDUSOLA vs. N. G. CO. LTD (2013) 10 NWLR (Pt. 1363) 423@436 where it was held that where the contract of employment is a mere master and servant relationship, the master has unfettered right and liberty to terminate his servant’s employment at any time with or without reason, provided the terms of the contract of service between them are complied with; and that the court will have no business to the motive, but will only give effect to the contract of service between the parties. See AYANRU vs. MANDILAS LTD (2007) 10 NWLR (Pt. 1043) 462 at 477 – 478. The Defendant, in urging the court to decide this issue in favour of the defendant, concluded by stating that the documents the Claimants have tendered are not helpful to the Claimant, and that he never tendered the terms of employment which may have helped to exempt the case from a mere employment at common law. In his own final written address, the learned silk, counsel for the Claimant formulated the following 4 issues for determination: Issue 1: Whether the statutory jurisdiction of the National Industrial Court extends to any claim of damages for defamation and, if not, whether the relief number 25 (d)(iv) in this suit is competent. Issue 2: Whether the dismissal of the claimant by the defendant was wrongful. Issue 3: If the answer to issue 2 is in the affirmative, whether the claimant is not entitled to the damages sought for wrongful dismissal. Issue 4: If the answer to issue 1 is in the affirmative, whether the claimant is not entitled to damages for libel. Issues 1 and 4 were argued together because issue 4 hangs on the Court’s competence to entertain the relief based on libel. On this, the defendant had under its Issue A challenged the competence of the Court to adjudicate on a claim of libel. Claimant states that the National Industrial Court could adjudicate a claim of libel under the circumstance where the facts of the suit bestride two judicial jurisdictions. Citing the Supreme Court case of ALUMINIUM MANUFACTURING COMPANY (NIGERIA) LTD vs. NIGERIAN PORTS AUTHORITY (1987) 1 NWLR (Pt. 51) 475 @ 484, Claimant submitted that the facts that gave rise to the claim of wrongful dismissal include the facts that gave rise to the claim of libel. This court could therefore assume jurisdiction to entertain the matter as it is not about libel simpliciter, and that it is only where the suit is on libel alone that this Honourable Court would have no jurisdiction. He urged the court to hold that the inclusion of libel claim in this suit does not render the suit or that particular claim incompetent. He further submitted that in the event that the court declines jurisdiction to adjudicate over relief No 25(d) (iv), the consequence ought to be striking out the relief and no more. If however, as expected, the relief is sustained as competent, in determining whether the relief is available to the Claimant, learned silk submitted, relying on IFEANYICHUKWU OSONDU vs. AKHIGBE (1999) 11 NWLR (Pt. 625) 1 at 16F that the case of each party is contained in the pleadings filed by each party, which is essentially a statement of candour as to what each party relies on, to prove his case. It was further submitted that the onus cast by law on a party could be discharged through pleadings since one does not need to prove what is admitted. In determining whether or not the Claimant discharged the burden to plead and prove that the alleged words were published to a third party, Learned Counsel in urging the court to hold that there was a verbatim reproduction of the alleged libel, submitted that Paragraph 21 of the Statement of Claim pleaded a verbatim reproduction of the publication concerning the Claimant to the Central Bank, a third party; and that the claimant’s testimony in paragraph 23 of his sworn deposition is consistent with this pleaded fact. It is further submitted that Exhibit 18 was tendered as further proof of the libelous material, and that the defendant never pleaded that what was quoted was different from the admitted information sent to the Central Bank. He submitted that in a situation of agreement by both sides that a documentary report was sent by the defendant to the Central Bank in respect of the claimant’s dismissal, the specific pleading of the content of that information in paragraph 21 of the statement of claim must be deemed proved, same having not been specifically responded to or rebutted to put it in issue by the defendant’s evasive pleading. He relied on the case of AKINTOLA vs. SOLANO (1986) 2 NWLR (Pt.24) 598 @623 where Oputa JSC held that there must be a specific denial or a specific non-admission; and that general traverse or general denial should not be adopted in respect of essential and material allegations in a statement of claim. Claimant therefore urged the court to resolve issue 4 in his favour; the burden of pleading and proving publication of the libelous material having been discharged through the pleadings. It was further submitted by Counsel to the Claimant that the plea of justification in Paragraphs 3, 4 and 5 of the defendant’s Statement of Defence carried with it an onus of proof of the truth of the publication to the CBN that the Claimant was liable for unethical practices of cash suppression, an onus which the defendant never attempted to discharge. No fact was adduced to support that assertion by the defendant. The Claimant’s appearance before the Panel was in respect of opening the Paul Raul Resources Ltd account and not ‘unethical practices of cash suppression’. Counsel also stated that the content of Paragraph 18 of the Statement of Claim stood proved, having not been traversed in the Statement of Defence. In reaction to the Defendant’s query of the evidential value of Exhibit C18, Counsel pointed out that the defendant never disclaimed Exhibit C18 which was duly frontloaded, and did not present a counter-evidence to it. Instead, the defendant, through DW1 owned up under cross-examination that the content of Exhibit C18 was consistent with the reason for which the Claimant was dismissed. Therefore, after both parties had identified and relied on Exhibit C18, the defendant cannot now argue that it has no probative value. Arguing issue 2, which queries whether the dismissal of the claimant by the defendant was wrongful, it was submitted that the fact in the pleadings of both parties accept that there was a dismissal which the defendant pleaded was justified. The Claimant, in responding to the Defendant’s issue (d) which queried the evidential value of Exhibit C3, C4, C14 and C18, submitted that the said documents which were frontloaded, even though they are unsigned computer print-outs, the defendants never disclaimed the documents, either in the statement of defence or in evidence. Besides, notice to produce was issued for each of the documents in the statement of Claim, and the defendant failed to produce any of them, knowing their relevance in the proper determination of this case. Having not joined issues on the said documents in the pleadings, the defendants must be presumed to have accepted the documents as being the same as those in its custody, and the pleaded documents must be presumed to be against the defendants, whether they are eventually tendered or not. See Section 167(d) of the Evidence Act 2011. Since the documents have been accepted in evidence, they are already before the court on record, and should not be denied at the address stage. Counsel pointed out that under cross-examination, DW1 identified and testified on Exhibits C3 and C4 as a representative of the defendant, and indeed Exhibit C4 is stamp dated and signed, contrary to the Defence Counsel’s assertion that it is unsigned. It was further submitted that the legal authorities relied upon by the defence, are distinguishable from this case; therefore, they should not be relied upon. Claimant contends that the uncontroverted and uncontradicted facts both documentary and oral, on record as presented by the claimant and admitted by the defendant show clearly that the dismissal had no justifiable cause and was therefore wrongful. While conceding that an employer has the right to terminate the appointment of an employee with or without reason, Claimant submitted that where the employer gives reasons for such termination, he has a duty to prove the reason or pay damages, especially where such reason is capable of rendering the employee unemployable as in this case. Exhibit C16 which is the letter of dismissal gave the following reasons for the Claimant’s dismissal: (a) That the claimant authorized the opening of a mirror account against the banks policy; (b) The account turned out to be fraudulent; (c) The bank policy was breached by the claimant authorizing the release of the funds from a customer’s account without the customer’s instrument. It is submitted that these allegations were thoroughly debunked by a combined consideration of Exhibits ‘C3’, ‘C4’, ‘C14’,‘C18’ and the DW1’s testimony on record. The court was urged to hold that the dismissal was wrongful, having been based on overt falsehood, the claimant having not committed the offence for which he was dismissed. The panel did not find the Claimant guilty of the offence for which he was dismissed. While conceding that at common law, the existence of a serious misconduct could warrant a lawful dismissal, Claimant pointed out that where the basis of that dismissal is denied and challenged in a law suit, then the employer is bound to prove the misconduct alleged. To the Claimant, the defence had misrepresented facts in submitting that the defendant had proved the misconduct; and that the Claimant admitted all under cross-examination. It was counsel’s submission that the panel did not find the Claimant guilty of the offences for which he was dismissed. He was not dismissed because he was cautioned in 2008. Rather, he was dismissed for an offence for which another person had been held accountable in respect of the Paul Raul Resources Ltd account. Again it was submitted, citing the dictum of Oputa JSC in BELLO vs. A-G OYO STATE (1986) 5NWLR (Pt. 45) 929 that the jurisprudence in Nigeria still upholds the principle of Ubi jus, ibi remedium (where there is a wrong, there must be a remedy). The defendant is not licensed to treat the Claimant anyhow simply because there is no Staff Condition of Service, a document which the defendant had the onus to produce. Exhibits C19 (Letter of offer as Trainee) and Exhibit C25 (Letter of offer as Executive Trainee), both make provision for termination of employment, but contain no clause on dismissal. In the case of UBN PLC vs. SOARES (2012) 11 NWLR (Pt. 1312) 550 @ 572, the Court of Appeal gave a clear distinction between termination and dismissal thus: while termination gives the parties the right to determine the contract of employment at any time by giving the prescribed notice, dismissal is on the other hand, a disciplinary measure which earns no benefits. It was therefore submitted that no law in Nigeria allows an employer to visit an employee with a disciplinary measure based on an alleged misconduct without proof of the said misconduct. In this case, counsel stated, there is no such proof. It was further submitted that neither common law nor any statute known to be in force allows any employer to dismiss an employee based on a false cause, and that no misconduct has been established against the claimant, and therefore a dismissal on false allegation as in this case is a wrong which ought to be remedied. Counsel said the cases cited by the defendants such as OBAJE vs. N.A.M.A. (2013) 11 NWLR (Pt. 1365) 286@302-303; GARUBA vs. K.I.C. LTD (2005) 5 NWLR (Pt. 917) 160 @ 162; EKUNLOLA vs. CBN (2013) 15 NWLR (Pt. 1377) 224 @269; DUDUSOLA vs. N.G. CO LTD (2013) 10 NWLR (Pt. 1363) 423 are not applicable, and relying on them would be a misapplication of judicial dicta, and that they are distinguishable from this case, and therefore inapplicable. Learned Counsel therefore urged the court to resolve issue 2 in the affirmative and hold that from the totality of evidence on record, the dismissal letter Exhibit C16 was not justified and was therefore wrongful. In arguing Issue 3 which raises the question whether the establishment of wrongful dismissal would not entitle a dismissed employee to award of damages claimed, counsel submitted that the defendant’s submissions in their issue B was misconceived, and that the Claimant’s claim for special and general damages for wrongful dismissal does not amount to double compensation as alleged by the defendant. He urged the court to so hold. Claimant’s Counsel further submitted that the cases relied upon by the defendant was again misconceived. The Claimant in his written address went further in reaction to the defendant’s assertion that the court by relief 25(a) is being invited to go into the domestic affairs of the defendant, submitted that if the defendant had an iota of justification for Exhibit C16, reliance would not be placed on a caution that was issued to the claimant in 2008, for which there is no other reference or facts in support. Exhibit C27 specifically pleaded in paragraph 23 of the statement of claim, Counsel submitted, is the Claimant’s second letter of promotion, which the defendants did not feature in their inventory of exhibits. It forms the basis for the Claimant’s claim of N6.5 million per annum contained in relief 25(d)(i). Relief 25(d)(ii) is based on the claimant’s retirement age of 65 years, as he is 36 years old now. While conceding to the fact that the quantum for reliefs 25(d)(iii) is discretionary, Counsel submitted that it is based on the suffering and inconveniences occasioned by the wrongful dismissal (Exhibit C16) which is different from the withheld emoluments that would naturally have been made available to the Claimant by virtue of his employment. Relief 25(d)(iv) is on the defamation or libel and not on wrongful dismissal. It is submitted that the Claimant is entitled to cleansing, as his professional image has been tarnished by Exhibit C18 which led to the Exhibit C17 which is the sack letter from Standard Chartered Bank. The court was urged to cleanse him by award of damages to him so that he may continue his life in his chosen profession away from the defendant. Claimant drew the court’s attention to the fact that the defendant’s only traverse to paragraphs 23 and 24 of the Statement of Claim is a general denial in paragraph 8 of the Statement of Defence. He therefore urged the court to hold that the figures in paragraph 23 having not been disputed, stands proved, as the defendant was in a position to have produced the correct figure if those pleaded by the claimant were considered wrong. The court was urged to enter judgment in favour of the Claimant. The defendant, in its reply on points of law filed on the 31st day of January 2014, responded to the issues addressed by the Claimant’s Counsel as follows: As regards whether the decision of the Supreme Court in ALUMINIUM MANUFACTURING COMPANY NIGERIA LTD. vs. NPA (1987) NWLR (Pt. 51) Pg. 475 at 484 enables the National Industrial Court to assume and exercise jurisdiction over the common law tort of libel, it is submitted that the decision of the Supreme Court in that case does not create any confusion about its application. The jurisdiction of the National Industrial Court is special and is specifically spelt out by the constitution in no mistaken terms, for the sole purpose of removing labour and employment related matters from the vagaries and entanglements of other causes and matters. The Supreme Court in that case held that where the Federal High Court finds that it has no jurisdiction over a matter, the proper order is one of transfer of the suit to the High Court. The Supreme Court never decided that a court should assume jurisdiction over any subject matter which does not fall within its jurisdiction because a litigant chose to lump such a subject matter with other subject matters which are within the jurisdiction of that court. Counsel urged the court to follow the better precedence of JOHN ONYEBUCHI EZE vs. F.R.N. (1987) 1 NSCC (Pt. 1) Vol. 18 Pg. 249 to the effect that where a charge is laid under a law over which the Federal High Court has jurisdiction, and the statement of offence and evidence to support it are not within the jurisdiction of the court, the jurisdiction of the Federal High Court over the charge will be ousted. “………It is not for a court to stretch its jurisdiction by interpretation, in order to accommodate a charge.” As regards whether the defendant sufficiently traversed the claimant’s Paragraph 21 and whether the defendants attack on Exhibit ‘C18’ is well taken, it is submitted that the defendant expressly and pointedly denied paragraph 21 of the statement of claim in paragraph 2 of the statement of defence which is reproduced thus: “The defendant denies every other averment of fact in the Statement of claim including the facts set out in paragraph 3, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the Statement of claim.” Also, that Paragraphs 3 to 5 of the Statement of Defence offer further averments of fact which if believed will render paragraph 21 of the Statement of Claim impotent, and that it cannot be argued rightly that averments in a Statement of Defence which contradict the averments in a Statement of Claim are not an effective traverse. Citing the case of MESSRS LEWIS & PEAT (N.R.I.) LTD vs. AKHIMEN (1997) 7 SC 157; BUHARI vs. OBASANJO (2005) 2 NWLR (Pt. 910) 241 at 385- 386; AKANI vs. ODEJIDE (2002) 3 SC 80 at 83; and ARCHIBON vs. ITA (2004) 1 SC 108, Counsel submitted that a denial by simple traverse that the defendant does not admit an allegation is sufficient. He further submitted that the substance of the Claimant’s averments in his pleadings were duly traversed, therefore the Claimant’s submissions on this point were mistaken. Also, Exhibit C18 was said not to have been adopted or admitted by the defendant under cross-examination as alleged by the Claimant. As regards whether a failure by the defendant to produce a document implies admission that the document exists and that if it were produced it will speak against the person withholding it, Counsel cited the case of UZOHO vs. TASK FORCE (2003) FWLR (Pt. 166) 606 at 614 on the effect of failure to produce pursuant to a notice to produce, and submitted that it’s only effect is that it enables the person who served the notice to tender secondary evidence of the document. He submitted further that the unsigned document which was admitted as Exhibit ‘C18’cannot be the secondary evidence intended by law, as an unsigned document is worthless. See DANTIYE vs. KANYA (SUPRA). Defence Counsel again submitted that the claimant bears the burden to prove that the unsigned document – Exhibit “C18” is in the custody of the defendant before he can invoke Sections 91(b) and 167(d) of the Evidence Act; that the claimant did not plead or give notice to the defendant to produce any unsigned document. And that a document submitted to CBN cannot still remain with the defendant, therefore whatever the claimant tendered in evidence cannot be the same document which is alleged to be with the CBN. The claimant, counsel said, mandatorily needs evidence from the CBN. See AWOSILE vs. SOTUMBO (1986) 3 NWLR (Pt. 29) 471. Further on this point, it was submitted by the defence that what the claimant listed in his list of documents is a report dated October 8, 2010, and that that document is not Exhibit “C4”; but that however, the said, Exhibit “C4” which is dated 18/10/2010 indicted the claimant on pages 7, 8 and 9 thereof. He then stated that this court is not empowered to substitute itself for the investigative panel of the defendant to determine if the court would have believed what the panel believed or whether this court would have applied the same disciplinary measures as the defendant chose to apply against the claimant. The jurisdiction of the court, counsel said, is limited to finding out whether the defendant afforded the claimant an opportunity of hearing. The claimant himself confessed that he was mentioned among the persons to be investigated, he appeared at the proceedings of the investigation and gave his own evidence. The defendant considered the outcome of the investigation, the defendant did not exonerate him. Therefore, to the defendant, all the common law procedures were complied with. As to whether the authorities relied on by the defendant are apt as precedents on this case and whether the principle of Ubi jus ibi remedium avails the claimant in this case, it was submitted by the defence that a decision is a precedent on what it decides, and no more. That the central principle on which those decisions are ad idem is that the requirement that a document should be signed is not a mere procedural matter. Failure to sign a document is not a mere irregularity. It is a fundamental defect which deprives the document of admissibility and weight. Still relying on the said decisions as precedent, Counsel stated that for a case to be a precedent, the parties and the facts need not be an ipsinsima verba reproduction of each other. The binding element of a decision is the ratio decidendi. See ADETOUNOLADEJ (NIG) LTD. vs. N.B. PLC (2007) 5 NWLR (Pt. 1027) 415 at 436. To the defendant, the golden principle which requires a court to find a remedy where there is a wrong will only avail where: (i) the claimant has proved a wrong which is recognized by law as a wrong done to him or against him; and (ii) Where the law has not provided a remedy. In this case the claimant has not discharged the burden of proving that his employment at common law has been determined in terms of a wrongful dismissal, which burden rests squarely on him. It is a hard question of law and facts and does not fall within the realm of sympathy which counsel states, is not a fore runner of justice. See UDE vs. OJOECHEM (1991) 2 NWLR (Pt. 174) 497 at 508. To the defence, the remedy for wrongful dismissal are clearly spelt out by a legion of decided cases, and the court needs not look elsewhere when the law already provides a remedy. The remedies are: (i) for employment with statutory colouration - voiding of the dismissal and restoration of the employee to his status quo ante bellum; and (ii) for employment at common law - award of damage i.e. the equivalent of the three months’ salary in lieu of notice. An employee cannot be imposed upon an employer at common law. The employer needs not give any reason for dispensing with the services of the employee. See DUDUSOLA vs. N.G. CO. LTD (SUPRA). The cases relied upon by the Claimant in paragraphs 3.025(1) to 3.025(iv) of his Written Address relate to employments with statutory coloration. A distinction, counsel said, needs to be made between those decisions founded on the pensionability element of the disputed employment and those which are of general principles. The cases the Claimant referred to dealt with employments with statutory coloration. See certified copy of the decision of the National Industrial Court (Enugu Division) per Hon. Justice A. Ibrahim dated 16th January, 2014 in Suit No. NICN/EN/21/2012 - BARRISTER C. EMMANUEL vs. INEC. In urging the court to dismiss the suit, the defendant submitted that the Claimant has failed to plead or prove the onus which rests on him to plead what constitutes the lawful procedure for dismissal in his relationship with the defendant, and then prove that the defendant did not follow that procedure. And that the Claimant cannot place reliance on DUDUSOLA vs. N.G. CO. LTD (SUPRA) because the employment disputed therein had a statutory coloration, therefore the Supreme Court still placed the burden on the appellant therein to prove that the termination of his employment is unlawful. I have carefully considered the processes, evidence, arguments and submissions of the parties in this matter. The issues that arise for determination are: 1. Whether the jurisdiction of the National Industrial Court extends to any claim of damages for defamation and if not, then whether relief No 25(d)(iv) in this suit is competent. 2. Whether the dismissal of the Claimant by the defendant is wrongful, and if so, whether the Claimant is entitled to damages for wrongful dismissal. The brief facts of the case as can be distilled from the statement of facts, the sworn deposition on oath and the Claimant’s oral testimonies are as follows: On the 16th day of July, 2001 the defendant employed the claimant as a trainee. He was promoted to the level of Banking Officer on 1st November, 2005, and then to Senior Banking Officer effective 1st March, 2007. At various times, he had been deployed to Nnewi I branch, Nnewi 2 Branch, Awka 1 Branch and Akpakpava, Benin Branch before he was deployed to Aba Eziukwu Road Branch as Customer Services Manager on 12th February, 2007. In his capacity as Customer Service Manager, he was not in charge of the branch which was headed by a Branch Manager known as Marilyn Joan Obioha who along with co-conspirators, now faces criminal charges at the Federal High Court, Umuahia at the instance of the EFCC. Following the discovery of financial improprieties in some branches in Aba, the defendant set up an investigation Panel to investigate suspected fraudulent, illegal, or non-compliant activities of some Officers of the defendant. The Claimant was specifically listed as one of those to be investigated in respect of Paul Raul Resources Account Number 0012350000372 which had been opened at the Aba Eziukwu Road Branch. The Claimant was suspended from duties vide a suspension letter dated 15/9/2010 indicating that the said Paul Raul Resources Account was opened on February 13th 2009 without sighting the customer, and that the customer was availed credit facility of N20,000,000 (Twenty Million Naira) which was moved out by two Manager’s Cheques of N10.6 million for Nnenna Kalu and N9,000,000.00 for Olayinka Joseph; and that all instructions were done on ordinary paper. The Claimant contends that he gave no such instruction. When he was invited for further explanation in December 2010, he meticulously detailed the flex cube transaction/authorization screen proof of the said transaction which revealed the actual staff of the bank that inputted and authorized transactions from customers’ accounts on the banks software. The claimant’s name did not feature in this bank record. The Panel Report specifically identified those involved in the Paul Raul Resources Account Affair on which the claimant was investigated, which report expressly excluded the claimant. In spite of the findings of the Panel which clearly exonerated the claimant from the fraud perpetrated with the Paul Raul account for which he was investigated and suspended, or indeed any other account, yet he was dismissed from the employment of the defendant by a letter dated January 31st, 2011 (Ref HEM/DN/16003/01/2011) for the purported reasons that: (a) He authorized the opening of mirror account against the bank’s policy; (b) The account turned out to be fraudulent; and (c) The bank’s policy was breached by the claimant authorizing the release of the funds from a customer’s account without the customer’s instrument. The claimant subsequently wrote several passionate letters of appeal protesting the dismissal and asserting his innocence in the alleged fraud. The defendant’s response was to the effect that there was no change in the defendant’s position. The defendant also forwarded the claimant’s name to the Central Bank of Nigeria as a dismissed employee for the purpose of blacklisting the claimant as a fraudulent banker guilty of ‘unethical practices of cash suppression’, a totally different reason from that for which he was investigated, and even from that contained in his letter of dismissal; thereby making the Claimant ineligible for employment in any bank or financial institution, and thereby ruining the his professional integrity. This, the Claimant discovered when he secured a job at Standard Chartered Bank, which appointment was promptly terminated on grounds that he has been blacklisted. In determining the first issue as regards whether the jurisdiction of the National Industrial Court extends to any claim of damages for defamation, it is trite law that jurisdiction is the life wire of any case. When a court assumes jurisdiction in a matter where it lacks jurisdiction, such action will be a nullity no matter how well conducted. This was well settled in the case of MADUKOLU & OTHERS vs. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR 587 where the Supreme Court laid down the guiding principles to be considered in determining the jurisdiction of a court. (Per Bairamian, F.J) “A court is competent when - 1. It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another; and 2. The Subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of a court is fatal for the proceedings and are a nullity however well conducted and decided: the effect is extrinsic to adjudication.” The Supreme Court has aptly answered the question as to what determines the jurisdiction of a court in the case of ADETAYO & ORS. vs. ADEMOLA & ORS. (2010) 15 NWLR (PT 1215) 169 when it held thus: "As to what determines the jurisdiction of a court, it is now firmly settled that the jurisdiction of a court, is determined by the Plaintiff's claim - i.e. by the subject-matter and claim before the court..." Per Ogbuagu, J.S.C. (P.30, para.A-B). The Claimant, by his complaint dated 11th December 2012, claimed the following reliefs against the defendants: a) A Declaration that the Claimant was never involved in any fraudulent activity with Paul Raul Resources account No. 0012350000372 or any other account at the Eziukwu Road Branch Aba, or elsewhere. b) A Declaration that the dismissal of the Claimant from the employment of the Defendant was wrongful and malicious, the same being without any just cause. c) A Declaration that the blacklisting of the Claimant by the Defendant at the Central Bank of Nigeria was wrongful and malicious. d) Special and general damages for wrongful dismissal and libel made up as follows:- i. Special damages for wrongful dismissal made up of loss of emolument until the determination of this suit calculated at N6.5 million per annum. ii. N217, 000,000.00 (Two hundred and seventeen million naira) damages being anticipated future earning in the banking industry. iii. N200,000,000.00 (Two hundred Million Naira) being general damages for wrongful dismissal. iv. N200,000,000.00 (Two hundred Million Naira) being general damages for libel published to the Central Bank of Nigeria relating to claimant’s profession. It is apt to ask the question whether the “subject matter of the case is within this court’s jurisdiction, and whether or not there is any feature in this case which prevents this court from exercising its jurisdiction.” Section 254 (C) (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria as amended by the third alteration Act 2010 confers jurisdiction on the National Industrial Court to hear and determine among others, (a) matters relating to or connected with any labour, employment, trade, unions, industrial relation and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; (b) Matters relating to or connected with unfair labour practices or international best practices in labour, employment and industrial relations; etc. Salami JCA in the case of ZABUSKY vs. ISRAELI AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070) 109 at P. 134, paras. C-F has held that "By jurisdiction, it is meant the authority which a court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means. In the instant case, the High Court of Lagos State is statutorily conferred with jurisdiction by the provisions of sections 10 and 11(1)(a) of the High Court Law, Cap. 60, Laws of Lagos State of Nigeria, 1994 to hear and determine actions in tort committed within Lagos State. [SPDC v. Isaiah (2001) 11 NWLR (Pt. 723) 168.]" Per Salami, JCA Reliefs a, b and c above are clearly covered by the provisions of Section 254 (C) (1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, thereby bringing them within the contemplation of matters triable by this court. Relief d however, introduces the subject of libel, while d (iv) seeks to claim general damages for libel. To qualify for an award of damages for libel, the court must satisfy itself that the allegation of libel has been proved against the defendants. The question is: “can this court delve into the proof of the allegation of libel in the present circumstance?” or “can this be construed as one of those matters incidental to employment as contemplated in Section 254 C (1) (a)?” In answering this, regard must be had to the act complained of, in relation to the employment relationship. The libelous act purportedly committed against the Claimant occurred after the dismissal. It did not occur during the pendency of the employment. It wasn’t the reason for dismissal of the Claimant. Rather, it was done after the dismissal, which makes it a totally different cause of action that may or may not be sustainable in a separate suit at the appropriate forum. Even though this court can pronounce on whether or not the act of blacklisting the Claimant is a wrongful act, delving into the arena of libel would be going totally out of the scope on my jurisdiction. For instance, this court will not entertain a murder charge, even if it was committed at the workplace by an employer or employee. The appropriate court will entertain the said allegation using the appropriate standards of proof, and award adequate sanctions or penalties. This court has the same attitude towards libel cases. This is not to say that the Claimant does not have a right of action. The action can only be sustainable in the appropriate forum. See ZABUSKY vs. ISRAELI AIRCRAFT IND. (Supra). It is my holding therefore that the claim for damages for libel as contained in relief d falls outside the scope of my jurisdiction. Consequently, relief number d (iv) is hereby struck out. In determining the second issue whether or not the dismissal of the Claimant by the defendant is wrongful, certain questions need be answered. Pertinent is the question raised by the defendant as to whether Exhibits C3, C4, C14 and C18 have any evidential value. The defendant’s argument regarding these documents is that they are not signed. The question whether an unsigned document attracts any evidential weight was recently answered by the Court of Appeal in the case of ABEJE & ANOR. V. APEKE (2013) LPELR-20675(CA) where it was held thus: "Unsigned documents our courts have held, should attract little or no evidential weight. See Jinadu & Ors vs. Israel Esurounbi-Aro & Anor. (2009) 9 NWLR part 1145 page 55 at p.81. Indeed many decisions say that an unsigned document is a worthless piece of paper that has no evidential value. See Amaizu vs. Nzerube (1989) 4 NWLR part 118 page 755. It has to be said though that it is not everything in writing that goes under the rubric of "document" that will lose its evidential worth simply because it is not signed. For example, where parties do not deny the existence of a contract of affreightment, the fact that they did not sign it cannot be a ground that they are not bound by it, barring a statutory provision. See Awolaja vs. Seatrade GBV (2002) 4 NWLR part 758 Page 520 at p.532." Per DANIEL-KALIO, J.C.A. (Pp. 23, paras. B-F) I therefore hold in line with the above authority that the absence of signatures in Exhibits C3, C4, C14 and C18 does not make them completely lose their evidential worth. They are capable of attracting weight, albeit little weight, especially where the contents are not denied and the authenticity unquestioned. In determining the position of unsigned documents, it has been held in NWANCHO vs. ELEM (2004) ALL FWLR (PART 225) 107 that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. This prompts the question whether Exhibits C3, C4, C14 and C18 are documents which ought to be signed. It is noted that Exhibit C3 is the investigation report which ex facie originated from the website of the defendant at www.diamondbank.com., Exhibit C4 is an e-mail instruction to the Claimant to raise a draft, Exhibit C14 is a print-out of Flex-cube authorization screen relating to the account of Paul Raul resources, for which notice to produce was given. Exhibit C18 is a copy of the poster blacklisting the Claimant at the Central Bank of Nigeria. The possibility of the Claimant obtaining the relevant signatures on Exhibit C3 after printing it from the website would have been an uphill task, considering that the parties were already on a war path. I doubt if he could have been obliged with a signed report even if he had requested for it. All these documents were pleaded and frontloaded and notice to produce was given in respect of some of them. They were tendered and admitted in evidence. The authenticity of the documents, especially Exhibit C3 was not disputed, given the fact that DW1 testified under cross-examination that Exhibit C3 is the report of a panel set up to investigate Aba branches, and that the Claimant was one of the persons so investigated. DW1 also answered questions relating to Exhibit C4 under cross-examination and C18 under re-examination. In a continuously developing world of improved technologies and communication methods, where e-mails, and indeed the internet have become a globally accepted mode of transmitting information, there is the urgent need to frequently review or upgrade rules of evidence to bring them in compliance with modern technology. It should be noted that a lot has happened in the world of communication and technology since the last review of the Evidence Act in 2011. This court, by Section 15 of the NIC Act 2006, is allowed to apply equity where there is conflict between the rules of equity and the rules of common law. Also, by Section 12(2)(b) of the NIC Act, this court is allowed to depart from the Evidence Act in the interest of justice. Even if the said were not tendered, and admitted in evidence, for the fact that they were frontloaded, they are deemed admitted on the authority of Kurt Severinsen vs. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454, where this court, in determining how frontloaded documents are to be treated held thus: “This Court made it clear to the parties that the practice in the Court is that all frontloaded documents are deemed admitted unless specifically objected to, in which event the Court will then make a ruling on the admissibility or otherwise of the documents. Once deemed admitted, all that is left is the weight or probative value that will be placed on them by the Court. All of this is made possible given that this court is generally enjoined to be flexible and less formal; and while it is enjoined to apply the rules of evidence, it may depart from it in the interest of justice. In this regard, this Court, for instance, admits secondary evidence of documents, not necessarily the primary evidence where there is no dispute regarding the authenticity. See sections 36 and 37 of the Trade Disputes Act 2004 and section 12 of the National Industrial Court Act 2006.” Given the informality enjoined by sections 36 of the TDA and 12 of the NIC Act and the necessity to dispense with the cases expeditiously, it is even a valid procedure at the National Industrial Court for parties to agree to what is termed at the NIC as trial on record. By this procedure, parties are at liberty to agree that they will not lead evidence and so would only rely on the documents they have frontloaded. Order 19 Rule 9(ii) of the NIC Rules 2007 provides that “Documentary evidence shall be put in and may be read or taken as read by consent”. It has been variously held in Akinola vs. VC, UniIlorin [2004] 11 NWLR (Pt. 885) 616; Agbaisi vs. Ebikerefe [1997] 4 NWLR (Pt. 502) 630 and Agbahomoro vs. Edieyegbe [1999] 3 NWLR (Pt. 594) 170 that a court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. In view of the foregoing, coupled with the provisions of Section 15 and Section 12 (2) (b) of the NIC Act 2006, it is my holding that the documents were rightly admitted in evidence and the court is entitled to look at them. In determining the weight to be attached to an unsigned but admissible document, while Oguntade JSC did not consider an unsigned minutes of meeting inadmissible in evidence, he held in JINADU & ORS. vs. ESUROMBI-ARO & ANOR (2009) 9 NWLR(Pt. 1145) 55 S.C. that they should attract little or no weight. The court hereby exercises it’s discretion in favour of attaching weight, albeit minimal or reasonable in the circumstance, to the documents it has admitted in evidence, and that includes Exhibits C3, C4, C14 and C18, and to that extent, I hold that they have evidential value. To answer the main issue as to the wrongfulness or otherwise of the dismissal of the Claimant, the first thing to determine is “what is the reason for the dismissal?” This can be found in the letter of dismissal Exhibit C16, which is reproduced below: HCM/DN/16003/01/2011 January 31st 2011 Chibueze Chiagorom Sapele Road Branch Benin Edo State Dear Chibueze CESSATION OF EMPLOYMENT Recall that you were placed on suspension pending investigation into your involvement in the abuse of Diamond Bank customer’s funds in the Aba branches. You were also given the opportunity to explain your role before the Personnel Management Committee (PMC) on December 15 2010. The bank has determined that you breached the bank’s policy by authorizing the opening of a mirror account. As you are aware, the account turned out to be a fraudulent one. It was also determined that you breached the bank’s policy by authorizing the release of funds from a customer’s account without the customer’s instrument. Consequently, be informed of the cessation of your employment with the bank by DISMISSAL effective immediately for these acts which violate the Human Capital Management Policy of the bank. Kindly submit the entire bank’s property in your possession including your staff identity card Yours faithfully, For: DIAMOND BANK PLC Hilary Ogbonna Donald Nosiri Head, Staff Support & Compensation Head, Human Capital Management The defence has made reference to a judgment delivered on the 16th day of January 2014 by this Honourable court sitting at Enugu in the case of Barr Owette C. Emmanuel vs. INEC (NICN/EN/21/2012) as it relates to the issue of staff conditions of service, and has urged the court to hold that the absence of staff conditions of service is fatal to the Claimant’s case. The Claimant has submitted in reaction, that he has not complained against termination of appointment without notice, but against the disciplinary measure of his dismissal, which he says are two different things. He placed reliance on the case of UBN PLC vs. SOARES (supra) which gave a clear distinction between termination and dismissal thus: while termination gives the parties the right to determine the contract of employment at any time by giving the prescribed notice, dismissal is on the other hand, a disciplinary measure which earns no benefits, and therefore requires proof which is absent in the case at hand. To the defendant, in the absence of a formal contract of employment or any staff conditions of service before the court, the court ought to treat the relationship between the claimant and the defendant as a mere contract of employment at common law. While agreeing with this submission, may I quickly add that the law is that, in a master-servant relationship, a master needs not state the reason for the dismissal of an employee. But where he decides to state a reason, then that reason must be proved. See Fakuade vs OAU Teaching Hospital Complex (1993) 6 SCNJ 35. Having therefore stated the reason for dismissal in Exhibit C16 above, the employer ought to prove the said reasons stated therein. The same position was recently taken by the Court of Appeal in UBA PLC v. ORANUBA (2013) LPELR-20692(CA) where it was further held that in a contract of employment between a master and a servant, the master may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason. In my view, the defendant has not established or proved the reasons stated in Exhibit C16, and I so hold. From Exhibit C16 captured above and the testimony of DW1, the following facts are clear: • The Claimant was suspended pending investigation into the abuse of customer’s funds. • He explained his role to the Personnel Management Committee. • The bank determined that he opened a mirror account which turned out to be fraudulent. • The bank also determined that he authorized the release of funds without the customer’s instrument. The investigation report (Exhibit C3) was pleaded in Paragraph 10 of the Statement of Claim and the Defendant was given notice to produce the report at the hearing. The Claimant testified that Exhibit C3 had no signature. However, DW1 confirmed under cross-examination that Exhibit C3 was the report of the investigating panel. He also testified that Exhibit 16 (dismissal letter) relates to the same Paul Raul account for which Marilyn Joe was indicted in the investigation report. DW1 stated that Page 5 of the report, particularly clauses 3.22 to 3.26 contained the findings relating to Paul Raul Resources account. For the avoidance of doubt, the findings in respect to the Paul Raul Resources Account as reflected in Page 8 Clauses 3. 22 – 3.26 of the investigation report are reproduced below: Paul Raul Resources Limited 3.22 Paul Raul Resources Limited 0782010003030 opened an account on October 14 2008 with Aba, Asa Road Branch. The account as operated on a non-borrowing basis. On February 13 2009, Marilyn Joan Obiora opened a fraudulent mirror account for the customer in Aba, Eziukwu Road 0012350000372. The fictitious customer was availed an overdraft facility for N20million on February 23 2009. The facility was billed to mature after 270 days from date of initial draw down (February 27, 2009). The sum of $305,000.00 was used as security for the facility and it was domiciled in account number 0781520000021belonging to Joshua Ezechukwu Ohaka a customer of Aba, Asa road Branch. 3.23 The N20million was moved out in twofold: N10.6 million Manager’s cheque opened for cash (OFC) for Nnenna Kalu and N9million for Olayinka Joseph. Nnenna Kalu was discovered to be a business associate of Marilyn Joan Obiora while Olayinka Joseph’s account was being operated by Emmanuel Nwosu. We discussed with the customer Mr Paul of 29 Owerri Road, Aba and with mobile number 080---------, he claimed ignorance of the facility or the account in Eziukwu Road. 3.24 The debit balance of N21.4 million in the account was hurriedly paid off in April 2010 from the proceed of Ujuaku Investment account collapsed by Marilyn Joan Obiora and Emmanuel Nwosu. The balance in the account as at October 6, 2010 was N2, 793.08 (Cr). We queried the staff that packaged the facility, Ikenna Nzeribe. He stated that Marilyn mandated him to prepare the credit and also provided all the required documents. He stated further that during the recovery drive ‘The issue of having a facility with Diamond Bank sounded a big surprise to Mr Paul Ofegbu (the director of Paul Raul resources Ltd) who I engaged in a telephone conversation because he resides in Cameroun but comes into Nigeria once in a while to make purchases (though he has an apartment here too). I was confused at that point on February 2, 2010 and I told my colleagues of my observation and went further to send a mail to Marilyn the next day telling her what I encountered in the course of our joint recovery drive for Paul Raul, asking her to explain what that could mean (thinking the customer was trying to be smart), but surprisingly she did not respond.” 3.25 The customer whose fund was used as collateral of the fraudulent loan, Dr Joshua Ohaka claimed that Marilyn Joan Obiora and Emmanuel Nwosu misappropriated his funds totaling USD434,000 and about N76million. The investigation revealed that the Bank was liable for negligence as most of the withdrawals from the customer’s account were done illegitimately by the relationship managers. To forestall litigation and reputational cost, the bank negotiated and settled with USD 105000.00. 3.26 Emmanuel Nwosu and Eze Nwekwe denied knowledge of the fraudulent Paul Raul Resources Limited account despite the fact that Emmanuel operated the account and the investment used as collateral was domiciled in the branch managed by Eze Nwekwe. When confronted with the allegation, Marilyn acknowledged that the account was fraudulent. From the foregoing narration and the testimonies of the witnesses, and the averments in Paragraph 5 of the Statement of Claim (which is admitted in Paragraph 1 of the Statement of Defence) which reads thus: “At all times material to the fraudulent event under which guise the claimant was dismissed from the services of the defendant, the branch manager of Eziukwu Road, Aba Branch was one Marilyn Joan Obiora . The said Marilyn Joan Obiora is now facing charges together with her co-conspirators in the frauds perpetrated at the branch at the Federal High Court, Umuahia at the instance of the Economic and Financial Crimes commission (EFCC).” it is apparent that it was Marilyn Joan Obiora that was indicted for opening “a fraudulent mirror account” for the customer Paul Raul Resources Ltd, and she in fact admitted the impropriety. These facts remain uncontroverted. Reason probably being why the Claimant is not one of those facing charges at the Federal High Court, Umuahia. The defendant in Paragraph 3(vii) of its statement of defence, stated that “the investigation revealed that the claimant authorized the opening of fraudulent mirror account for Paul Raul Limited and he also authorized the release of fraudulent proceed from Paul Raul Limited account without instrument.” This statement is consistent with the content of the dismissal letter (Exhibit 16). In the light of this consistency, it would appear that an attempt by the defendant to suggest that the Claimant was fired for other reasons would amount to a contradiction. DW1 in his testimony, referred to page 8 of the report which indicated that the Claimant had been suspended earlier for deposit and loan abuses, which DW1 said, is not the same thing as opening a fraudulent mirror account. Paragraph 3 (ix) of the Statement of Defence also stated that the Claimant was cautioned on June 12, 2008 for flagrant abuse of the Bank’s TOD Policy, while 3(x) states that on September 15, 2010, the Claimant was suspended indefinitely for deposit and loan abuses. For further clarity, the panel’s finding from the staff investigated, as it relates to the Claimant and as captured in Page 8 of the investigation report is hereby reproduced below: CHIAGOROM CHIBUEZE He was employed as a trainee on July 09 2001an d deployed to Nnewi Branch Operations effective September 03 2001. He rose to the grade level of a banking officer on November 01 2005 and was redeployed to Awka branch as Customer services Manager on November 28 2005. He was promoted to a Senior Banking Officer effective March 01 2005 and subsequently redeployed to Aba Eziukwu Road branch as Customer Services manager on February 12 2007. He was cautioned on June 12 2008 for flagrant abuse of the Bank’s TOD policy. On June 10, 2010, he was redeployed from Benin, Sapele Road Branch to Aba, Eziukwu Road Branch Business Banking unit. He was suspended indefinitely on September 15, 2010 in Aba for deposit and loan abuses. One wonders whether the indefinite suspension of September 15, 2010 (15/9/2010) was not in relation to the Paul Raul account. The investigation report is dated October 18, 2010, and no further facts were supplied by the defendants to suggest that the suspension of September 15, 2010 had nothing to do with the said investigation. Considering the timing and the flow of events as gathered from the testimonies of the parties, it is apt to conclude that the suspension of September 15, 2010 was the same as what was referred to in Paragraph 3 (iv) of the Statement of Defence thus: “Like the other affected members of staff who were being investigated, the Claimant was placed on suspension”. I so hold. Reference was also made to the fact that the Claimant was cautioned on June 12, 2008 for flagrant abuse of the Bank’s TOD policy. This statement was replicated in Paragraph 3 (ix) of the statement of defence. No further facts were supplied to shed more light on this statement. My understanding of this is that on June 12, 2008, the claimant was cautioned, and the reason for the caution was that he abused the bank’s TOD policy. I hold that the “caution” imposed on June 12 2008 is a sanction or disciplinary measure. It therefore follows that the Claimant had already been disciplined or sanctioned or punished for the offence of flagrant abuse of the Bank’s TOD policy. That case was therefore closed and no longer in issue. This court has held in the case of Miss Ayotunde Arijenja George vs. First Bank of Nigeria Plc; unreported suit No NIC/LA/54/2011, in a judgment delivered on 2nd December 2013 that in such a circumstance, the plea of estoppel will be available to the employer. By the authority of Udegbunam vs. FCDA [2003] 10 NWLR (Pt. 829) 487, an employer has the discretion to give a lesser punishment to an employee. Similarly, by the authority of Ekundayo vs. University of Ibadan [2000] 12 NWLR (Pt. 681) 220 CA, if after the knowledge of fraud committed by an employer the employer elects to retain him in his services, the employer cannot at any subsequent time dismiss him on account of that which he has waived or condoned. It was also held in Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 CA – that an employer cannot just at his whims and caprices resurrect that which has been buried. The Defendant having therefore chosen to merely caution the Claimant in June 2008 for flagrant abuse of the Bank’s TOD policy, that case was closed. It would therefore be absurd for the defendant to attempt to resurrect the matter and to refer to it as another offence deserving dismissal. What is more, the dismissal letter made no reference to it. Having considered the totality of the evidence before the court and indeed the testimonies of the parties, I find that there is no compelling reason before the court to justify the dismissal of the Claimant. I therefore hold that the dismissal of the Claimant was wrongful, unfair and unjust. By virtue of Section 254C (f) of the amended Constitution, this Court has exclusive jurisdiction to determine matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters. I hold that this case is one of such cases covered by Section 254C (1) (f). In this regard, the equitable jurisdiction of this Court as provided by Section 15 of the NIC Act 2006 enjoins the court to do away with the rigidity of the common law in preference for the rules of equity to aid and assuage the hapless employee. In a judgment delivered on the 19th day of June 2013 in the case of Mrs. Abdulrahaman Yetunde Mariam vs. University of Ilorin Teaching Hospital Management Board and Another, unreported suit No NICN/LA/359/2012 an unlawful suspension or denial of a deserved promotion was held by this court to amount to an unfair labour practice over which this court has jurisdiction. I therefore hold in line with the above authority, that an unfair labour practice has occurred by the wrongful and unjust dismissal of the Claimant in this case. Having thus held, the Constitution expects that the unfair labour practice in question be remedied as may be just and fair under the law. In doing this, Section 245C (1) (f) and (h) of the 1999 Constitution of the Federal Republic of Nigeria as amended by 3rd Alteration Act permits the Court to apply international Best Practices or International Labour Standards. The Constitution makes this Court free to apply the principles of justice, equity and good conscience when adjudicating on the ‘rights’ and ‘wrong’ of a claim made, and in so doing, to apply best practice. See the case of Mrs. Abdulrahaman Yetunde Mariam vs. University of Ilorin Teaching Hospital Management Board & Anor (supra). In the case of Charles Ogbazuaye vs. First Bank of Nigeria Plc. Unreported Suit No: NIC/LA/186/2011 recently decided by this Court on October 30, 2013 the position of this Court on issues like the present one is succinctly put as held this way: “This Court must be free to apply the principles of justice, equity and good conscience when adjudicating on the ‘rights’ and ‘wrong’ of a claim made. Consequently, the Equity of the instant case, to my mind, requires that the summary dismissal of the claimant, which I have already declared wrongful, unjust and a manifestly unfair labour practice be remedied.” Since I have held earlier in this judgment that the dismissal of the claimant is wrongful, unfair and unjust, the equity in the circumstance as required by the provision of section 15 of the NIC Act, 2006 is that the said wrong be remedied in a manner the court would consider reasonable and just. Before I make further progress, it is pertinent to touch on whether or not the act of blacklisting the Claimant was also wrongful and malicious. Having held that the dismissal was wrongful and unjust, it follows that all other acts done in furtherance of the dismissal as it affects his employment rights, was also wrongful. Paragraphs 17, 18 and 22 of the Statement of Claim and paragraphs 4 and 5 of the Statement of Defence and indeed the testimonies of the parties are all at one in establishing that the Defendant submitted the Claimant’s name as a dismissed staff to Central Bank, with the effect that the Claimant became unemployable as eventually shown in his subsequent employment with Standard Chartered Bank which was promptly terminated on account of the said report sent to Central Bank, as shown in Exhibit C17 which is reproduced below: September 8, 2011 Chibueze Chiagorom Standard Chartered Bank Aba Dear Chibueze TERMINATION OF APPOINTMENT The background check conducted with CBN revealed that you have been blacklisted as a fall-out of your previous employment with Diamond Bank Plc, in view of which they are unable to recommend you for employment. Based on this, we write to inform you that effective September 8 2011, your services are no longer required by the bank. In line with the terms and conditions of your employment, you will be paid for one week in lieu of our notice to you. Upon receipt of this letter, you will be required to hand over all of the Bank’s property in your possession to your line manager. We use this opportunity to wish you every success in your future undertakings. Yours sincerely SADE KILASO CAROL OYEDEJI EXECUTIVE DIRECTOR – HR REGIONAL HEAD, CB – WA The content of Exhibit C17 above, speaks for itself. It is a direct consequence of the dismissal of the Claimant which this court has here held to be wrongful. From the above analysis, it is right to conclude that the Claimant is entitled to award of compensation of damages for wrongful dismissal and indeed the consequence thereof. The Claimant has pleaded in Paragraph 23 of his Statement of Claim that at the time of dismissal, he was on a salary of N6.5 million per annum. It is also noted that the Claimant puts the Special damages payable for wrongful dismissal made up of loss of emolument until the determination of this suit at N6.5million per annum. This the defendants have denied in Paragraphs 2 and 8 of their Statement of Defence, by a mere statement of denial and nothing more. Be that as it may, in paragraph 5 of the Statement of Claim, the Claimant pleaded that he was deployed to Aba Eziukwu Road Branch as Customer Services Manager on 12th February 2007. This the Defendant admitted in its paragraph 1 of its Statement of Defence. Since the Claimant has not exhibited any document in support of the figure of N6.5 million Naira per annum earning, the court will fall back on the document of last promotion of the Claimant dated 28th December 2006 (Exhibit C26), by which the Claimant was promoted to the post of Senior Banking Officer on a remuneration of N4, 338, 000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) with effect from 1st March 2007. It is safe therefore to hold that the annual remuneration of the Claimant at the time of his dismissal was N4, 338, 000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) only, and I so hold. The Claimant was wrongfully dismissed on the 31st day of January 2011. Okoro J.C.A. has held in UNION BANK OF NIGERIA PLC vs. SOARES (2012) LPELR-8018(CA) thus: "The Apex Court has clearly stated that the measure of damages for wrongful dismissal is, prima facie, the amount the Plaintiff would have earned had he continued in the employment”. See also Obot v. C.B.N. (1993) NWLR (Pt. 310)140. It is my holding therefore that the Claimant is entitled to damages for wrongful dismissal made up of loss of emolument from the date of the wrongful dismissal being 31st day of January 2011until the judgment day today the 31st day of March 2014. This is calculated at N4, 338, 000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) only per annum. The Claim for damages for anticipated future earnings, the Claimant has put at N217 Million. The claimant did not, however, particularize how he came about the sum of N217 million. Having held that the defendant’s action of wrongfully and unjustly dismissing the Claimant and indeed rendering him unemployable, amounts to an unfair labour practice, and having also held earlier that a finding of an unfair labour practice on the part of an employer must be remedied as may be just, section 19(d) of the NIC Act 2006 permits this Court to make an award of compensation or damages in favour of the claimant. Now, section 19(d) of the National Industrial Court (NIC) Act 2006, dealing with the power of the Court to make certain orders, provides that the Court may and where necessary make any appropriate order, including “an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. Considering that the Claimant has been out of work and has not been able to get another employment because he has been blacklisted by the defendant, he is entitled to general damages for loss of earnings and loss of reputation and integrity. In UBN Plc. vs. Onuorah & ors. [2007] LPELR-11845(CA) the Court of Appeal held that “general damages are such as the law will presume to be the direct natural or probable consequences of the act complained of and that the court can make an award of general damages even when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man”. Not only has the Claimant been wrongly dismissed, his reputation has also been tainted by his being blacklisted thereby rendering him unemployable in the banking industry. I therefore hold that he is entitled to an award of compensation and damages as contemplated by Section 19(d) of the NIC Act, premised on the blacklisting of the Claimant resulting in his unemployability occasioned by the wrongful dismissal. In view of the above, I award the sum of N4, 338, 000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) only, to the Claimant, being his salary for one year, as compensation, pursuant to Section 19(d) of the National Industrial Court Act 2006. I agree with Counsel for the Defence that the law frowns at double compensation in award of damages to a successful litigant. It was however held in S.P.D.C. v. Okonedo (2007) ALL FWLR (Pt. 368) 1104 at 1139 - 1140 Paras. H - B; (CA) Per Abba - Aji JCA that “the award of two million naira general damages by the trial court in addition to the award of special damages did not amount to double compensation.” I therefore hold that the award of damages and compensation in this judgment does not amount to double compensation. On the whole and for the avoidance of doubt, I hereby hold and order as follows: 1. The Claimant was not involved in fraudulent activity relating to the Paul Raul Resources Account for which he was dismissed. 2. The dismissal of the Claimant from the employment of the Defendant is wrongful and unjust and amounts to an unfair labour practice. 3. The Defendant’s act of blacklisting the Claimant following his wrongful dismissal is wrongful, unjust and unfair. 4. The Defendant is hereby ordered to pay to the Claimant, damages for wrongful dismissal made up of loss of emolument from the date of the wrongful dismissal being 31st day of January 2011 until the judgment day being today the 31st day of March 2014. This is calculated at N4,338,000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) per annum. 5. In line with the provision of section 19(d) of the NIC Act 2006, compensation of N4, 338, 000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) only is hereby awarded to the Claimant, being his salary for one year, for the wrongful act of blacklisting the Claimant, and the resultant unemployability causing injury to his reputation and professional credit. 6. The defendant is to pay the judgment sums as ordered in (4) and (5) above, to the claimant within 30days from today, failure of which it begins to attract interest of 15% per annum from the time of default until the final liquidation of the judgment sum in line with the provision of Order 21 Rule 4 of the NIC Rules, 2007. 7. The Defendant is to pay N200,000.00 cost to the Claimant. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge