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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE DATE: January 9, 2014 SUIT NO. NICN/LA/45/2012 BETWEEN Mr Muktair Beyi Akinnibosun - Claimant AND Union Bank of Nigeria Plc - Defendant REPRESENTATION B.A.Aderosin, with him Alhaji A.O,Akinyemi, Segun Aleshinloye for claimant. F.O.Ogungbemi, with him Mrs A.O.Adekoya, Adebayo Adebola for defendant. JUDGMENT The claimant filed this complaint against the defendant on the 16th February 2012 seeking the following reliefs: I. Declaration that the purported dismissal of the claimant by the defendant vide a letter dated 5th October 2009 on criminal allegation on mere suspicion is null, void and of no effect based whatsoever since it violated the claimant’s constitutional right of fair hearing. OR ALTERNATIVELY: Declaration that the purported dismissal of the claimant by the defendant vide a letter dated 5/10/2009 for gross misconduct and without being brought before any tribunal and or court recognized by law court is a breach of the claimant’s constitutional right of fair hearing and thereby null and void and of no effect whatsoever. II. An order for the payment of N6,000,000,00 (Six Million Naira) yearly by the defendant to the claimant being a financial member of National Union of Banks Insurance and Financial Employees (NUBIFE) and Association of Senior Staff of Banks and Financial Institution (ASSBFI) respectively as his entitlement/emoluments from the year 2009 until judgement is delivered in this suit based on the last compensation package made by the defendant as stated in the letter dated 3rd November 2008. OR ALTERNATIVELY An order directing the defendant to pay all the claimant’s entitlement and terminal benefits as stipulated in the claimant’s new compensation package dated April 20th 2009, the defendant pension and gratuity scheme rules, collective agreement of the said NUBIFE and ASSBFI and other conditions of service made by the defendant as compensation for the wrongful and illegal dismissal of the claimant. III. N5,000,000.00 (Five Million) cameral damages in the said wrongful dismissal as a financial member of the said NUBIFE and ASSBFI respectively. Accompanying the complaint is the statement of claim, written statement on oath, name of witness and copies of documents to be relied upon. The defendant entered appearance on the 3rd May 2012. An amended statement of defence and copies of documents to be relied on was filed on the 31st July 2012. The witness statement on oath was filed on November 9, 2012. The claimant filed a reply on the 11th January 2013. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that he is a confirmed and pensionable staff of the defendant employed vide a letter dated 02/05/06 with staff number 1115608. He pleaded that he has no bad record and was the defendant’s Branch Manager at New Gbagi Ibadan Oyo State up till September 2009. He pleaded that he has put in over ten years of service in accordance with the collective agreement between the defendant and its staff. The claimant pleaded that a call from the defendant’s Eket Branch on Branch Multilink Telephone line directed the Branch to pay one Segun Bankole the sum of N620,000.00. That after due care and diligent enquiries the sum was paid to the payee. The claimant averred that the said payee called again for the sum of N985,000.00 on 28th May 2008 and the sum was paid after necessary presentation and due confirmation of the said payee by Clement Iyitor of page 2797 from Eket Branch in favour of Segun Bankole. The claimant averred that another sum of N895,000.00 was paid to the payee and the sum of N2,750,000.00 paid to Ovayora Johnson after due diligence and confirmation from the defendant’s Branch at Eket. The claimant pleaded that he was surprised when he was informed that all the chaques were forged despite all the necessary inquiries conducted before the payments were made. He pleaded that the cheques were paid in accordance with banking practice and in line with the defendant’s laid down instructions/rules and regulations via circular no 00/2006 dated 5th August 2006 signed by Vic Anyachor. The claimant pleaded that after the alleged fraud by the payee at the New Gbagi Branch Ibadan, it was discovered that the same payee Segun Bankole had used different names in company of his cohorts to defraud the defendant in eight other branches and that a criminal case T/12/2009 COP v Taiwo Adeyemi Quadri is pending before the court in Lagos. That though he appeared before the defendant’s disciplinary panel, he was exonerated, and as a result he was made a star witness in the prosecution of the culprits. He pleaded that he was not charged to court for any criminal offence neither was he found negligent for dereliction of duty. The claimant pleaded that he was not the defendant’s officer that paid the cheque on the counter to the fraudsters and that same was done by such officers based on the guidelines in place as at the time of the incidence. The claimant averred that he was dismissed without an investigation being carried out by the Inspection Department and that he is being punished for an offence he did not commit. That his dismissal via a letter dated 5th October 2009 is in bad faith and wrongful and has made life difficult for his family. The claimant testified as the only witness in support of his case. His evidence in chief was by witness statement on oath which was in terms of the pleadings. Under cross examination he told the court that the method of confirmation he used before paying the cheques was telephone confirmation, signature confirmation through the server and physical examination of the instrument. He told the court that it was not absolutely correct to say that N250,000.00 is the maximum limit for on line payment. He said N250,000.00 is the limit set for his grade with a clause that he can go above for a high network customer so that the customers interest will not be in jeopardy. The claimant told the court that he complied with the directives in the flex cube circular. He admitted that the means of identity used by him is the company identity card of the payee. The claimant then closed his case. The case of the defendant on the pleadings is that the claimant upon being employed signed a contract of employment with the defendant and that the collective agreement does not form part of the claimant’s contract of service. The defendant averred that the Procedural and Main Collective Agreement between Union Bank of Nigeria Ltd Pension and Gratuity Scheme Rules is unknown to the defendant who is not a party to it. It pleaded that the claimant is not a pensionable staff and was not diligent in his duties. The defendant averred that as Branch Manager he should not have given value on mere conversation but should have taken further steps in line with the defendant’s laid down rules and regulations on online payments of third party cheques to confirm the instruments before effecting payment. It pleaded that the claimant did not exercise due care and diligence and was negligent in the performance of his duties as Branch Manager which resulted in the defendant being defrauded to the tune of N7,750,000.00. The defendant pleaded that under and by virtue of the terms of his contract of service, the claimant owed the defendant a duty of care to exercise diligence in the performance of his duty and also to obey all rules and regulations laid down. It averred that the claimant did not follow its laid down procedures for confirming online transactions when he failed to confirm the cheques in line with the rules and regulations governing the paying of online cheques and approved the payment of five purported Eket Branch cheques totaling N7,750,000.00 between 28/5/2008 and 3/6/2008. The defendant pleaded that the claimant was aware that by the rules he could not approve and pay online cheques that exceed N250,000.00; and that each of the cheques is above the limit of N250,000.00 and was forged. The defendant pleaded that one of its regulations is that before any online cheque is paid an email must be sent on the Banks Intranet to the Branch were the account on which the cheque was issued is domiciled to confirm the genuineness of the transaction. The defendant pleaded that the claimant did not send an email to Eket Branch and went on to pay the money. The defendant pleaded that there were apparent and material alterations and discrepancies on the five cheques which were clear enough to put the claimant on notice not to pay the cheques but that the claimant was negligent and decided to effect payment. It averred that the last genuine cheque issued on that account which the claimant saw was No 90197 dated 27/5/08 in the sum of N700,000.00. That on the next day 28/5/08 one of the cheques with No 90222 in the sum of N620,000.00 was presented for payment. The defendant averred that the wide gap in the customers sequence was enough notice for the claimant not to approve but he was negligent and went ahead to effect payment. The defendant averred that by its rules the proper means of identifying a customer before online third party cheque is paid is limited to International Passport, National Identification Card and Driving License but that the claimant approved the payment of the five cheques by other means of identification contrary to the three approved means. The defendant pleaded that the claimant was given a query to which he responded and appeared before the disciplinary panel. It averred that the investigations conducted by the disciplinary panel revealed that he was negligent and failed to comply with its laid down regulations that governed the transactions. It pleaded that the claimants appeal was considered by the defendant and was dismissed for lacking merit. The defendant pleaded that the claimant was not a member of the union and did not pay union dues from the time of his appointment to when he was disengaged. The defendant pleaded that the claimant was not dismissed for fraudulent activities but for negligence, lack of diligence and failure to comply with the defendant’s rules and regulations. The defendant called one witness, Mr Ola Odeyemi (DW) a retail banking officer. His evidence in chief was by witness statement on oath which was in terms of the pleadings. Under cross examination DW told the court that he worked closely with the claimant for more than a year; that he was the marketing and advances officer in the branch when this transaction came up while the claimant was the branch manager. DW said he was not involved in the transaction but he heard about it. He said he knew the claimant was involved in this matter. DW told the court that the branch manager at that time had so much powers and could give physical cash to a high net work customer and pass the physical cheque to the teller for posting. DW said he did not see the claimant approve the cheques and pay the cash to the customer. DW told the court that the fraudsters were arrested and that he gathered all the information he has given to the court from other people. The defendant then closed its case. The parties were ordered to file their final addresses. The claimants address is dated 2nd September 2013 and filed on the 5th September 2013. The defendant’s address is dated 12th September 2013 and filed on the 13th September 2013. Learned counsel to the claimant submitted one issue for determination as follows: Whether the claimant is not entitled to all reliefs sought for by the writ of complaint and statement of claim dated 4th January 2012 and filed on 16th February 2012. He submitted that the facts and documents pleaded by the claimant were not controverted by the defendant and that facts admitted by the other party need no further proof citing Egbunike v ACB [1995] 2 SCNJ 58. He submitted that the burden of proving negligence is on the defendant who has now alleged same as the claimant was dismissed for gross misconduct. It was his submission that the defendant failed to exhibit sufficient particulars to enable it succeed in its allegation of negligence against the claimant citing UTB v Ezeomano [2007] All FWLR (Pt 358) 1014 at 1018, Torti v Ukpabi [1984] 1 SCNLR 214. Counsel submitted that DW gave hearsay evidence which is inadmissible citing N.R.A v A.I Co [2010] 3 NWLR (Pt 1182) 487 at 491. He submitted that it has been established that the claimant’s dismissal was without fair hearing. He then urged the court to grant the claimants reliefs. Learned counsel to the defendant formulated the following issues for determination: 1. Whether the claimant committed an act of gross misconduct to warrant his dismissal by the defendant for gross misconduct. 2. Whether the claimant was given fair hearing by the defendant before he was dismissed. 3. Whether the defendant’s witness, Mr Ola Odeyemi, who was not directly involved in the transactions that led to the dismissal of the claimant can testify for the claimant. 4. Whether considering the evidence placed before the court at the trial, the claimant has discharged the burden placed on him by law to establish that his dismissal by the defendant was wrongful. He submitted that an employer can summarily dismiss an employee who commits an act of gross misconduct citing Ajayi v Texaco Nig Ltd [1987] 3 NWLR (Pt 62) 577, Azenabor v Bayero University Kano [2009] 17 NWLR (Pt 1169) 115,Abdulraheem v Olufeagba [2006] 17 NWLR (Pt 1008) 280, Olatunbosun v NISER [1988] 5 NWLR (Pt 80) 25 at 55. He submitted that failure to comply with the defendant’s rules and regulations and the claimant’ negligence in relation to the payment of the five cheques constitutes acts of gross misconduct which the defendant has established. He submitted that the claimant was given a fair hearing as he was given a written query which he responded to and appeared before the disciplinary committee. He cited Imonikhe v Unity Bank Plc [2011] 12 NWLR (Pt 1262) 624, NEPA V Ango [2001] 15 NWLR (Pt 737) 627. Counsel submitted that the evidence of DW is not hearsay and is admissible being an officer of the defendant and referring to Ishola v S.G.Bank [1997] 2 SCNJ 1 at 20, Anaja v UBA Plc [2011] 15 NWLR (Pt 1270) 377 at 404. It was his submission that the claimant has not discharged the burden of proof on him to establish that he was wrongfully dismissed and neither has he placed his contract of service before the court which is fatal to his case referring to section 131(1) & (2) of the Evidence Act 2011, Katto v CBN [1999] 6 NWLR (Pt 607) 390, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589 at 630, Eze v Spring Bank Plc [2011] 18 NWLR (Pt 1278) 113 at 149. He then urged the court to dismiss the claimant’s case. I have carefully considered all the processes filed, the documents in support, authorities and arguments canvassed by counsel in this matter. There is no dispute on the following facts; that the claimant was an employee of the defendant and its Gbagi Ibadan Branch Manager; that there was a fraud of N7,750,000.00 perpetrated by fraudsters in the Branch, and that the fraudsters have been apprehended and are being prosecuted. The issues for determination in this judgement are therefore: (i) whether the defendant has established the reason for which it summarily dismissed the claimant; (ii) whether the claimant was given a fair hearing; (iii) whether the claimant is entitled to the reliefs sought. It is trite law that an employer is not bound to give any reason for terminating the appointment of its employee but where the employer gives a reason, the law imposes on him a duty to establish the reason to the satisfaction of the court. See Olatunbosin v NISER Council [1988] 1 NSCC 1025; [1988] 3 NWLR (Pt 80) 25. The defendant’s letter dismissing the claimant and addressed to the Deputy General Manager Ibadan Zonal Office states that ‘Your above named staff has been Dismissed with effect from 5th October 2009 for his gross misconduct’. Having given the reason of “gross misconduct”, the onus is on the defendant to establish that the claimant was indeed guilty of the alleged offences that led to his dismissal. The defendant’s flexcube circular No 06/2006 is headed LIMITS FOR ON-LINE TRANSACTIONS. There is a limit of N250,000.00 for Third Party Cheques. The circular also gives four precautionary measures to be taken by Branch Managers and contains a NOTE. For the purpose of this judgement I will reproduce the relevant two: 1. There must be proper identification of the customer, i.e. International Passport, National ID Card or Driving License, before payment is authorized. 2. Ensure customers signature and picture are available in the system and verified. Indeed, Managers must ensure that all requests and payments are made in accordance with the mandate. Where signature cannot be obtained on the system, account-holding branch should be contacted by fax or phone for confirmation. NOTE Branch managers are to make cautious efforts to satisfy high networth customers who request for cash transactions above the approved limits by contacting account holding branch(es) on telephone, fax or email, especially in off-line situations. Each of the five cheques for which cash was withdrawn by the payee was in excess of the N250,000.00 approved limit. The claimant told the court that the means of identification used by him was the company identity card of the payee. This is not one of the defendant’s authorized modes of identification as contained in the circular. On the 21/05/2008 a cash withdrawal of N620,000.00 was made through cheque no 90222. On 29/05/2008 two cash withdrawals were made. One on cheque no 03025 for the sum of N895,000.00 and the second on cheque no 9024 for the sum of 985,000.00. On 02/06/2008, two cash withdrawals were made; one on cheque no 9027 for the sum of N2,500,000.00 and the other on cheque no 9029 for the sum of N2,750,000.00. The evidence before the court shows that the claimant received a call from Eket Branch about the transaction. He admitted that he was not certain about the identity of the caller from the Eket Branch, he did not e-mail the Eket Branch to confirm the genuineness of any of the cheques and agreed that there were apparent and material alterations on the cheques. In the NOTE, the circular advises Branch Managers to make “cautious efforts”. The Gbagi Branch was to make the call to Eket from the onset and not the other way round. I find that the claimant was not cautious when he approved the payment of these sums of money which were ordinarily above his limit. This exposed the defendant to financial loss which it suffered. I find this to be gross misconduct of a grave and weighty character which is against the interest of the defendant and has undermined the confidence which should exist between an employer and employee. See U.B.N. v Ogboh [1995] 2 NWLR (Pt 380) 647, Eze v Spring Bank Plc [2011] 18 NWLR (Pt 1278) 113, Olatunbosun v NISER [1988] 5 NWLR (Pt 80) 25. I hold that the defendant has established to the satisfaction of the court the reason for which it dismissed the claimant from its services. The claimant has alleged that he was not given a fair hearing. Nothing can be further from the truth. Fair hearing is opportunity to be heard. The evidence before the court shows that he was given a query on this transaction dated the 16th July 2008. He responded on the 17th July 2008. The defendant pleaded that the claimant appeared before the disciplinary panel and put in evidence a document containing written questions by the panel and the written answers by the claimant. The claimant in his pleadings admitted that he appeared before the disciplinary panel. I am satisfied that the claimant was given a fair hearing. In Imonikhe v Unity Bank Plc [2011] 12 NWLR (Pt 1262) 624 at 640, the Supreme Court held that where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirement of fair hearing because he answered the queries before he was dismissed from his employment; that fair hearing simply means ‘Hear the other side’ and once the employer does not find the answers satisfactory, he can dismiss the employee. The defendant did not find the claimant’s answers satisfactory and dismissed him. The claimant has not placed before the court any document stating what benefits an employee whose service is determined is entitled to in the defendant Bank. However, on the authority of U.B.N Ltd v Ogboh supra, an employee who is guilty of gross misconduct could be lawfully dismissed summarily without notice and without wages. See also Nigerian Communications Commission v Motophone Ltd [2007] LPELR-CA/A/189/05. Having found the claimant to have committed gross misconduct, he is not entitled to the payment of terminal benefits. For all the reasons given above, I find that the claimant has not proved his case. It is hereby dismissed in its entirety. Each party is to bear its own cost. Judgement is entered accordingly. -------------------------------------------- Hon Justice O.A.Obaseki-Osaghae