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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: September 25, 2014 SUIT NO: NICN/CA/108/2012 BETWEEN Mr. Joseph Onoriotakpo Clarke - Claimant AND 1. Keystone Bank Ltd 2. Mr Peter Akpaudo - Defendants REPRESENTATION Seun Ajobiewe for claimant E.A.Ochaten, with R.A.Manga, U. Onochie, P.E. Oyama G.C.Anyanwu for defendants. JUDGEMENT The claimant filed this complaint on the 18th December 2012 against the defendants seeking the following reliefs: a) A declaration that the claimant’s advice to resign his employment is null and void as it does not amount to termination of employment and was not done in accordance with his terms of employment. b) A declaration that the claimant remaining in the 1st defendants employ is entitled to all his salaries, allowances and entitlements. c) An order directing the defendants to pay all outstanding salaries/entitlements or benefits accruing to the claimant from June 2009 till the determination of this suit and continuously so, until the claimant’s employment is lawfully determined. d) 10% interest on the claimant’s salaries, allowances and entitlements calculated from June 2009 till when same is completely liquidated. e) 10% interest on the judgement sum until completely liquidated. f) N5,000,000.00 (Five Million Naira) special damages. g) N50,000,000.00 general damages. h) An order directing the 1st defendant to give favourable reference to any company seeking and willing to employ the claimant. i) At the determination of the claimant’s employment, one year salary as severance package should be paid to the claimant. j) N5,000,000.00 (Five Million Naira being the cost of this action. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon. The defendants entered appearance, filed their statement of defence, witness statement on oath and one document to be relied upon on April 8, 2013. The claimant filed a reply on the 6th May 2013. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that he is a staff of Bank PHB Plc that was taken over by the 1st defendant on 5th August 2011 and he was the Head of Operations at its Branch office along Abak Road in Uyo Local Government. He pleaded that he was employed as an Investment Analyst in 2007, rose to the position of Assistant Associate in 2007 and had worked in two branches of the 1st defendant before his posting to the Branch office at Abak Road. He pleaded that on or about the 28th April 2009, while he was away having lunch at about 6.30pm, the 2nd defendant called the Cash Officer Mr Bruno Iyama and demanded that he be paid the money he had earlier requested for delivery to the Government House. That Mr Bruno called him to inform him and requested for his keys to release the sum of N75,000,000.00 (Seventy Five million Naira) to the 2nd defendant who was the Branch Manager. The claimant averred that he reminded the Cash Officer to confirm the cash before he releases it to the 2nd defendant who should also do the same being the cash payment/confirmation procedure. The claimant pleaded that in his absence, the cash officer allegedly confirmed and paid the sum of N75,000,000.00 (Seventy Five million Naira) to the 2nd defendant who left with the sum to Government House. He pleaded that he later received a call from the 2nd defendant who said the amount he left with was N70,000,000.00 (Seventy Million Naira) and asked him to come over to Government House which he refused to do on the grounds that he was not the one who released the sum. The claimant pleaded that the 2nd defendant and the cash officer were both involved in the cash handling and failed to observe the strict banking procedure of confirmation before leaving the banking hall with the said cash. He pleaded that the 2nd defendant and the Branch Internal Control Officer reported the incident to the Police who then arrested him and other members of staff of the Branch on an allegation of stealing. The claimant pleaded that on his release fro police custody on 12th May 2009, he made effort to resume at his duty post but was refused entry on the orders of the 1st defendant. The claimant pleaded that the 1st defendant suspended him alongside the 2nd defendant and the cash officer and that it was not until a month after that he was served with a letter of suspension by a memo dated 16th June, 2009 which was back dated to 12th May 2009. He pleaded that the defendant set up a disciplinary panel to investigate the matter during his suspension; that he made entreaties to the defendant to seek the reversal of his suspension but he was not given a hearing. That thereafter the 2nd defendant and the cash officer were recalled back to work and posted outside the Uyo Branch to shield them. The claimant pleaded that he was detained, tortured and forced to write an undertaking while in detention to pay the alleged missing sum within a stipulated period of time as condition for his release. He pleaded that he was re-arrested and detained for six days for failing to produce the missing sum. That his Solicitor wrote a petition to the Inspector General Of Police who ordered an unbiased investigation into the matter by the Assistant Inspector General of Police, Zone 6 Calabar Municipality. The claimant averred that the report of the Police Investigation found him not culpable and that the Police advised the 1st defendant’s Management to recall him from suspension and re-instate him. He pleaded that he was recalled on or about the 17th December 2009 by memo; only to receive another memo a few days later also dated 17th December 2009 advising him to resign which is not in accordance with his terms of employment. The claimant pleaded that he made an appeal in line with the 1st defendant’s sanction grid and did not resign his employment. He averred that he has not been served with a letter terminating his appointment nor paid any salary in lieu of notice; that his account was frozen and he has not been paid any salary from June 2009 till date and has been forced into a state of indebtedness. The claimant pleaded that he instituted an action HU/35/2010 against the defendants at the Akwa Ibom State High Court but this was struck out after hearing had commenced in 2012 for want of jurisdiction. He pleaded that the 1st defendant maliciously instigated and initiated criminal proceedings HU/18c/2010 against him, the 2nd defendant and the cash officer during the pendency of HU/35/2010 to further intimidate him in spite of the Police report and that the suit was struck out. The claimant pleaded that he has been victimized, harassed, tortured and deprived of his right to a fair hearing and that he has suffered untold hardship, physical and psychological trauma. He pleaded that he has been rendered jobless, has suffered disdain and opprobrium with his esteem has being lowered in the eyes of right thinking members of the public and his colleagues who now look at him as a common thief. He pleaded that he spent close to N5,000,000.00 to bail himself on the various occasions he was arrested. The claimant testified as the only witness in support of his claims. His evidence in chief was by witness statement on oath and was in the exact terms of the pleadings. Under cross examination, the claimant said that he was in court to challenge the advise to resign because of the missing N5,000,000.00. He told the court that the 1st defendant had done something wrong in dismissing him because he was not involved in the fraud. The claimant then closed his case. The defendant’s case on the pleadings is that through an acquisition, it took over the management, assets and liabilities of Bank PHB Plc. It pleaded that the claimant is a former staff whose employment was properly determined by the letter of termination of 4th January, 2010 and he has ceased being the 1st defendant’s staff from that date. The defendants pleaded that the claimant was served with the letter of termination which he refused to acknowledge and also refused to comply with its directives to hand over the 1st defendant’s properties in his possession and his identity card. They pleaded that as a result of the claimant’s refusal to acknowledge receipt of his termination letter, his salary in lieu of notice and other entitlements were not processed. The defendants pleaded that it is not unusual for the claimant to be advised to resign his appointment as it no longer required his services. That by his refusal to comply with the advise, he waived any right to a further notice to terminate his employment except that issued him on 4th January 2010. The defendants’ called one witness Christopher Paul (DW), the Business Manager in the 1st defendant’s Calabar Branch support of their case. His evidence in chief was by witness statement on oath and was in the exact terms of the pleadings. DW told the court that he was conversant with the facts of the case. Under cross-examination DW told the court that he had no idea whether the 1st defendant reported the fraud to the Police, had no idea the Police absorbed the claimant of any wrong doing, had no idea the claimant was suspended, had no idea whether the claimant was paid his entitlements during the suspension and did not know if he was recalled from suspension. DW further told the court that the claimant was issued a letter of termination but refused to acknowledge the letter of termination. DW told the court he did not know how the claimant was served the letter of termination and admitted that there is no acknowledgement of receipt of the letter of termination by the claimant. DW told the court that the claimant was not paid salary in lieu of notice because he refused to acknowledge the letter of termination and that he had no idea whether the claimant handed over his identity card. He confirmed and that no amount was paid into the claimant’s account. The defendants then closed their case. The parties were directed to file their final addresses. The defendants’ final address is dated 23rd April 2014 and filed on the same day. The claimant’s address is dated 19th May 2014 but filed on the 26th May 2014. The defendant did not file a reply on point of law. Learned counsel to the defendant raised one issue for determination as follows: Whether from the facts and evidence before this Honourable Court the claimant is entitled in law to the reliefs sought? He submitted that on the facts and evidence before the court, the claimant is not entitled in law to any of the reliefs sought by him. He submitted that a master (the 1st defendant) can abridge formal procedures in repudiating his relationship with his servant for gross misconduct or in the face of acts prejudicial to his interest citing Michelin Nig Ltd v Alaribe [2010] All FWLR (Pt 543) 1998 at 2014. He submitted that relief (a) is untenable in law and therefore the other reliefs which are dependent on relief (a) must fail as one cannot put something on nothing citing Ativie v Kabelmetal Nig Ltd [2008] All FWLR (Pt 430) 667, Katto v C.B.N [1999] 6 NWLR (Pt 607) 390, Unity Bank Plc v Abiola [2009] All FWLR (Pt 452) 1082. Counsel submitted that the claimant failed to plead and adduce evidence on the special damages he is seeking. He then urged the court to refuse the reliefs sought and dismiss the claimant’s case. Learned counsel to the claimant raised the following issues for determination: 1. Whether the 1st defendant served the claimant with exhibit DW1 the letter of termination of employment. 2. Whether the claimant having refused to resign his employment upon being served with the 1st defendant’s memo advising the claimant to resign his employment amounts to termination of employment and whether the said memo is not in contravention of the Articles 6, 7.1.1 and 8 of the 1st defendant sanction grid (Exhibit CW10)? 3. Whether from the facts and evidence before this Honourable Court, the claimant is entitled in law to the relief sought He submitted that when issues are not joined, there is no burden on the claimant to prove the facts pleaded as they are deemed admitted referring to Kotun v Olasewere [2010] 1 NWLR (Pt 1175) 411. He argued that paragraphs 5 – 30, 31 – 38, and 40 – 45 of the statement of facts are admitted and require no further proof. He submitted that a party who asserts a state of facts must prove the existence of such facts referring to Oladipo v Moba L.G.A [2010] 5 NWLR (Pt 1186) 117 at 125. He further submitted that there is no evidence adduced by the defendants to show that the claimant was served with a letter of termination and that where a pleading is not supported by evidence, it is deemed abandoned citing Akande v Adisa [2012] 15 NWLR (Pt 1324) 538 at 548, Ndulue v Ojiakor [2013] 8 NWLR (Pt 1356) 311. Counsel submitted that the evidence shows that the claimant was suspended and subsequently issued with the advise to resign as a result of the missing N5,000,000.00. It was his further submission that the evidence shows that the claimant was not given a fair hearing by the 1st defendant as he was never queried neither was the advise to resign in accordance with the 1st defendant’s sanction grid. He stated that the law is settled that where an allegation is made against an employee and a panel is set up to investigate the allegations, the employee must be given an opportunity to refute, contradict or exculpate himself by making a representation to the panel citing UBA Plc v Oranuba [2014]2 NWLR (Pt 1) 6, Adeogun v Fasogbon [2011] 8 NWLR (Pt 1250) 427. Counsel submitted that from the evidence adduced, the claimant is still an employee of the 1st defendant and is entitled to all his salaries and allowances till date and an award for damages for the damage done to his reputation. He urged the court to grant all the reliefs sought by the claimant. I have carefully considered all the processes filed, the documents in support, authorities and arguments canvassed by counsel in this matter. In my view the issue for determination in this judgement is whether on the pleadings and evidence, the claimant ought to be entitled to the reliefs sought. The law is settled that the burden of proof of establishing the terms of the contract of employment is on the claimant. The claimant has placed before the court his contract of employment comprising his letter of employment, promotion and remuneration details, and the 1st defendant’s Disciplinary Policy and Sanctions Grid. These documents provide for the rights and obligations of the parties. See Fakuade v. O.A.U.T.H. [1993] 5 NWLR (Pt. 291) 47 and Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. I will begin with the issue raised by learned counsel to the claimant that issues have not been joined in respect of the facts pleaded in paragraphs 5 – 30, 31 – 38, and 40 – 45 of the statement of facts; and as such are deemed admitted and require no further proof. I find that in addition to the general traverse in the statement of defence, the defendants’ traverse in paragraphs 4, 10 and 11 of their statement of defence is specific. They have denied the facts and stated that they are strictly within the claimant’s knowledge and have no nexus with his employment they aver was properly terminated. This traverse does not amount to an admission of the claimants claim as the case the defendants have put up materially conflicts with the claimant’s case. Both parties have joined issues and I hold that the defendants’ traverse is not an admission. See Aja v Okoro [1991] 7 NWLR (Pt 203) 260 at 282. The defendants have not denied that the claimant was advised to resign his appointment. However DW in his statement on oath has denied that it was as a result of the fraud. The evidence adduced by the claimant is that there was a report to the Nigeria Police of a missing sum of N5,000,000.00 (Five Million Naira) belonging to the 1st defendant which led to the arrest of the claimant, the 2nd defendant and some other employees of the 1st defendant. The claimant was put on indefinite suspension with effect from May 13, 2009 by a memo dated May 12, 2009 from the Ag Group Head, Human Capital Management as evidenced by exhibit CW5. I find from the evidence adduced that the missing sum of N5,000,000.00 led to the claimant’s indefinite suspension from duty and I so hold. I will now reproduce some extracts from the Police Investigation Report Zone 6 Headquarters Calabar which is Exhibit CW8: 3.0 FINDINGS: vii That Seventy Five Million Naira (N75,000,000.00) was the actual amount released to Mr Peter Akpaudo by Mr Iyamba Bruno and not Eighty Million Naira (N80,000,000.00) as quoted. viii That the exchange of the amount between Mr Iyamba Bruno and Mr Peter Akpaudo took place in the absence of Mr Joseph Clarke. xi That there is no evidence whatsoever to link any other staff of the bank with the missing amount other than Mr Peter Akpaudo. 4.0 COMMENTS/RECOMMENDATIONS: 4.3 From all indications, Mr Peter Akpaudo collected Seventy Five Million Naira (N75,000,000.00) and took advantage of the Eighty Million Naira (N80,000,000.00) misrepresented by Mr Iyamba Bruno and thereby fraudulently converted the missing amount to his own and came up with false alarm of the missing amount. 4.4 In view of the foregoing, it is my considered opinion that Mr Peter Akpaudo is liable for fraudulent conversion contrary to section 390(b) of the criminal code, while other staff who are suspects in this case be exonerated from any criminal responsibility of the missing amount. I find from this report that the claimant and other staff arrested were exonerated and the 2nd defendant alone was indicted for the fraud. I therefore hold that from the Police Investigation Report, the claimant is not responsible for the missing N5,000,000.00. The evidence before the court shows that the 1st defendant recalled the claimant from suspension by memo dated December 17, 2009, Exhibit CW7. He was directed to resume duty on December 18, 2009. The documentary evidence adduced shows that the claimant’s salaries and allowances were stopped since June 2009. On his resumption to duty, he was not paid his outstanding salaries and allowances; instead he was immediately advised by the 1st defendant to put in his letter of resignation of appointment. This he refused to do. Now, the Guiding Policy of the 1st defendant’s Disciplinary Policy and Sanctions Grid Exhibit CW10 states that it is premised on the consideration that no form of injustice is meted out on the innocent and that all are given a fair hearing. It also states that staff under suspension on allegations of fraud and conversion and who are found not culpable at the end of investigation shall be paid the balance of all entitlements irrespective of the case. The evidence adduced shows that the claimant has not been paid till date in spite of not being found culpable by the Police to the knowledge of 1st defendant. There is also no evidence before me that the claimant was given a query or any form of a hearing by the 1st defendant in respect of this fraud. In the sanctions grid, a staff is only advised to resign for general misdemeanor, absenteeism, dereliction of duty, refusal to obey lawful instruction, gross insubordination, inability to pay established debt, use of unprofessional language, over drawing of staff account, poor attitude to work, sexual harassment, soliciting goods and services during official hours, committing the bank to financial obligation without approval. There is no evidence before me that the claimant committed any of these offences to warrant him being advised to resign. I find the 1st defendant to be clearly in breach of its own guiding policy and sanctions grid when it neglected to pay the claimant his outstanding salaries, refused to give the claimant a hearing and advised him to put in his letter of resignation. I hold that the claimant’s refusal to put in a letter of resignation is not a termination of his employment by the 1st defendant. The evidence adduced shows that the claimant’s Solicitors wrote two letters exhibits CW11 and CW12 dated 4th January 2010 and 28th January 2010 to the 1st defendant with the heading: AN ATTEMPT BY BANK MANAGEMENT TO SHIELD/PROTECT PERSONS INDICTED IN THE POLICE REPORT AND FORCE MR JOSEPH CLARKE TO RESIGN. The 1st defendant replied by exhibit CW13 on January 29, 2010 asking the claimant’s Solicitors to “Kindly refrain from taking further action till you hear from us in this regard. Thank you for your understanding.” The claimant’s Solicitors did not hear from the 1st defendant and this led to the action Suit No: HU/35/2010 filed by the claimant on the 2nd March 2010 at the Akwa-Ibom State High Court and on being struck out due to want of jurisdiction, this instant action. The 1st defendant asserts that it properly terminated the claimant’s appointment. The law is that he who asserts must prove. See Section 131(1) and (2) of the Evidence Act 2011. The letter of termination of appointment is dated January 4, 2010. There is no evidence that the letter was ever delivered to the claimant. There is also no evidence that the claimant was paid his salary in lieu of notice. DW could not tell the court how the letter was served on the claimant, the place, the date or time. Indeed, DW had no knowledge and was not conversant with the facts of this case. I therefore attach no weight to his evidence. I find that the 1st defendant did not write a letter terminating the claimant’s employment. I hold that the claimant still remains in the employment of the 1st defendant and is entitled to all his salaries and allowances to date until his employment is lawfully determined. For all the reasons given above, I hereby declare and make the following orders: 1. The 1st defendant’s advice to the claimant to resign his appointment is not a termination of his employment. 2. The claimant remains an employee of the 1st defendant and is entitled to all his salaries and allowances from June 2009 till date and until his employment is lawfully determined. 3. The 1st defendant is to pay all the claimant’s outstanding salaries, allowances and entitlement from June 2009 till date and until his employment is lawfully determined. 4. The outstanding salaries and allowances are to be paid within 14 days. Thereafter it will attract 10% interest until the amount is liquidated. 5. Costs of N50,000.00 is to be paid to the claimant by the 1st defendant. Judgement is entered accordingly. ------------------------------------------- Hon Justice O.A.Obaseki-Osaghae