Download PDF
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: December 12, 2014 SUIT NO. NICN/LA/98/2012 BETWEEN MR. NINIOLA OLOYEDE - CLAIMANT AND WEMA BANK PLC - DEFENDANT REPRESENTATION Enitan Afolabi Esq for the claimant. Joseph Okobiemen Esq for the defendant. JUDGMENT The claimant filed this complaint against the defendant on the 21st day of March 2012. Accompanying the complaint is the statement of claim, name of witness, witness statement on oath and documents to be relied upon. By an amended statement of claim, he is seeking the following reliefs: (a) A declaration that the summary dismissal of the claimant from the employment of the defendant as contained in the letter dated 10th February 2010 is null and void and of no effect as the defendant lacked the authority claimed in the said letter of dismissal. (b) An Order of this Honourable Court directing the defendant to pay Salaries; Allowances and bonuses due and payable to the claimant from December 2009 till date as stated above. (c) An Order directing the defendant to pay the entitlement of the claimant. (d) An Order reinstating the claimant back to work and/or alternatively the defendant should pay the claimant his benefit and entitlement which is as follows: CALCULATION OF GRATUITY LESS PENSION AS AT MAY 2012 DEPUTY MANAGER TOTAL EMOLUMENTS Basic Salary - N1,635,334.50 Housing Allowance - N1,251,250.00 Transport Allowance - N 565,082.50 Luncheon Allowance - N 347,493.75 Total N3,799,160.75 Formula used 75% multiply by (No of years multiply by 10 divided by 100) multiply by total emolument. Name Date of Appointment No of Years Spent Due Gratuity as at May 2012 Niniola Oloyede July 4th 1990 21 years 10 months i.e. 21.83 years N6,220,176.00 The defendant entered appearance on 7th May 2012 and filed its statement of defence, copies of documents, name of witness and witness statement on oath on 14th May 2012. The parties joined issues. By order of court on the 27th June 2012, this suit was consolidated with the three sister cases Suit No NICN/LA/99/2012, NICN/LA/100/2012, NICN/LA/101/2012. It was agreed by the parties and their counsel that the decision in this Suit will also be applicable to the three sister cases. The matter then went to trial. The claimant’s case on the pleadings is that he was a Deputy Manager with the defendant till February 10, 2010 when his employment was terminated by summary dismissal. He pleaded that he was employed by the defendant on 18th June 1990 by a letter of employment and his appointment was thereafter confirmed. He averred that he worked in various branches of the defendant assiduously and diligently without any blemish until his summary dismissal by the defendant on 10th February 2010. The claimant averred that he was never given any query on any matter whatsoever by the defendant until 10th December, 2009 when an internal memo was sent to him to furnish the defendant with some information concerning the financial affairs of Wema Bank Social Club within 24 hours. That consequent upon the letter from the requiring himself and other executive members of Wema Bank Social Club to furnish it with details of the financial affairs of the club from January 2006 to December 2009, he in conjunction with other executive members of the club responded by furnishing the defendant with copies of the Club's financial statement from 2006 to 2009. The claimant pleaded that another internal memo dated 14th December, 2009 was sent to him concerning the Financial Affairs of Wema Bank Social Club from January 2006 to December, 2009 and same was responded to accordingly. He averred that on 28th December 2009, he received an electronic mail from the defendant directing him to proceed on an indefinite suspension without pay pending further directives. He pleaded that while on indefinite suspension, he received a telephone call on 7th January, 2010 at about 2pm to appear before a Disciplinary Committee the next day, by 10am and when he got to the venue he was handed a hard copy of the invitation letter to the Disciplinary Committee dated 5th January 2010. He averred that the Chief Inspector of the defendant, Mr. Kunle Onitiri started asking questions based on the audit report before him, without giving him a copy of the said audit report. That his name and phone numbers had been removed from the annual report of the defendant's contrary to the usual practice even before he was summarily dismissed. The claimant pleaded that he was still on indefinite suspension when the defendant summarily dismissed him by letter dated 10th February 2010 and that before the dismissal letter was given to him, the defendant had sent the dismissal notice to all the staff through a notice dated 12th February 2010 captioned "DISCIPLINARY SANCTIONS". The claimant averred that he protested his summary dismissal from the defendant's employment in writing through his Solicitors letter dated 22nd February 2010 but to no avail and a fact which compelled him to institute this action having waited for definite and positive response from the defendant. He pleaded that the defendant lacked the authority to summarily dismiss him from its employment without following the due process. The claimant averred that his executive position and membership of the defendant's Social Club is a secondary assignment which is solely governed by Wema Bank Social Club Constitution which has a laid down procedure for erring members of the club and that his primary assignment to the defendant was usually carried out diligently and dutifully without any formal queries whatsoever. The claimant pleaded that the defendant wrote a Petition to the Nigeria Police Force, Special Fraud Unit, Ikoyi against him alleging conspiracy and stealing of N11.6 Million and he was arrested. He averred that on the instruction of the Police officers he led them to arrest his other colleagues, Mr. Abiodun Alabi and Mr. Adedeji Adegboyega in their respective houses and they were subsequently interrogated and detained. The claimant averred that he made statements and was later released on bail on the 26th April, 2010. The claimant averred that the allegations of conspiracy, stealing, fraudulent enrichment and financial misappropriation of N11.6 Million made against him and his other colleagues were investigated by the Police for several months and the file was subsequently forwarded to the Federal Ministry of Justice for legal advice. That the legal advice given by the Department of Public Prosecutions, Federal Ministry of Justice, exonerated and acquitted him and his colleagues of the alleged offences of conspiracy and stealing of N11.6 Million. He averred that before his suspension and subsequent dismissal by the defendant he was entitled to a monthly remuneration of N542,930.50. The claimant testified as the only witness in support of his claims. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross-examination, the claimant told the court that he was a Deputy Manager before his dismissal and is knowledgeable about the procedures. He informed the court that through out his employment, there was no time he did not feel obliged to the defendant. He admitted that he was accountable to the defendant in all his dealings. He told the court that he was the Treasurer of Wema Bank Social Club. The claimant told the court that the membership is made up of Wema Bank Staff and its subsidiaries. He said that as Treasurer he was only accountable to the members of the club and not accountable to the defendant. The claimant told the court that the Executive Directors of the defendant Bank are Patrons of the Club while the Group Managing Director is Grand Patron of the Club. He informed the court that the defendant supports the Club morally and financially. The claimant said that he sought the Management approval in respect of holding an Annual General Meeting for the club; and said he and all the Club executives were arrested in relation to their activities with the Club. He told the court that the defendant queried him and he directed his reply to the Chief Inspector; that before the defendant dismissed him and his colleagues in the three consolidated cases, they were invited to the disciplinary panel and had the opportunity to defend themselves. He told the court that it would be surprising to hear they were not given a fair hearing. He admitted that the defendant retains the power to terminate his services with it. Under re-examination, he said they were not given fair hearing. The claimant then closed his case. The defendant’s case on the pleadings is that it offered the claimant a temporary appointment as a clerical which appointment was subsequently confirmed. The defendant pleaded that the claimant was regularly and properly dismissed from its services for acts of gross misconduct. The defendant averred that the claimant was queried by it in respect of his conduct as Treasurer of Wema Bank Social Club when financial impropriety was discovered in the club. That it conducted an audit and constituted a disciplinary committee with a mandate to investigate the claimant's conduct in the affairs of Wema Bank Social Club and submit its findings to the defendant's management for action. The defendant averred that the disciplinary committee meeting was held in accordance with the invitation letter to the claimant and that audit queries in the form of internal memos variously dated in December, 2009 were duly served on and written responses were received from the claimant by the defendant. The defendant pleaded that the disciplinary committee read out the charges against the claimant from the queries and audit report duly served on the claimant before eliciting oral responses to the charges. The defendant averred that upon the conclusion of the investigation into the conduct of the claimant in his role in the defendant's social club, the disciplinary committee found the claimant in conjunction with the other executive members of the Club culpable for acts of financial impropriety, misappropriation and unjustifiable utilization of a large sum of money belonging to the defendant's Social Club. The defendant pleaded that the disciplinary committee also found the claimant lacking in accountability, stewardship and transparency generally and in particular in the management of Wema Bank Social Club. That these acts were considered by the disciplinary committee to be acts of gross misconduct and recommended the appropriate sanction of summary dismissal of the claimant to the defendant. That upon the receipt of its disciplinary committee report, it duly considered the same and found it weighty and grave and concluded that the claimant no longer enjoyed its confidences and accordingly summarily dismissed him from its services. The defendant pleaded that in accordance with due process, it summarily dismissed the claimant amongst others, from its service and published a notice to the other staff members accordingly in order to forewarn other members of its staff to halt any further official dealings with the claimant. The defendant averred that having been fairly heard, recommendation of the disciplinary committee accepted and acted upon, it desired the claimant no more in its service. The defendant pleaded that as a Bank and custodian of people’s treasure, its employees are expected to be and are measured by the highest financial probity, accountability, fidelity both in the services of the defendant, its subsidiaries affiliates either in its business or social activity or indeed in their personal lives and are expected to be above board at all times and in any manner of assignment. It averred that the Wema Bank Social Club is its exclusive social club admitting mainly members of staff and it derives its funds mainly from the defendant and its staff monthly contribution from salaries payable by it. The defendant averred that the claimant was neither diligent nor dutiful while in its services and that in line with its civic duties, it reported the claimant's unsatisfactory conduct as executive of the Social Club to the Nigeria Police and no more. That the claimant along with the members of the Social Club subsequently instituted an action against it along with the Nigeria Police at the Lagos High Court alleging a breach of their fundamental rights and the Lagos High Court in its judgment dismissed their claims and exonerated the defendant from any alleged wrong doings in its report to the Police. The defendant averred that the claimant was dismissed from its employment on grounds of gross misconduct so weighty and grave leading to the complete erosion of confidence, fidelity and trust in him to continue as a staff of the defendant. The defendant called one witness Ahmed Babalola (DW) in support of its case. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross-examination, DW told the court that every employee is a member of the Wema Bank Social Club and that it is governed by a constitution. He told the court that the claimants committed financial impropriety against the Club and this brought them before the disciplinary committee. DW told the court that the money misappropriated belongs to the employees of the defendant who are members of the Club and that the defendant petitioned the Police in respect of the misappropriation of N11.6 Million. He said that he served the claimant with the audit report and that it was shown to him at the disciplinary hearing. DW stated that the claimant and the others were dismissed from their jobs in accordance with their employment contracts before the defendant petitioned the Police. He said he was not aware that there was a report from the Ministry of Justice exonerating the claimant and the others involved. The defendants then closed their case. The parties were ordered to file final addresses. The defendant’s final address is dated 4th October 2013 but filed on the 27th October 2013. The claimant’s final address is dated 5th May 2014 and filed the same day. The defendant’s reply on point of law is dated 26th May 2014 and filed the same day. Learned counsel to the defendant submitted the following issues for determination: (a) Whether the defendant cannot or does not possess the power under the contract of employment of the claimant to summarily dismiss the claimant from its employment? (b) Whether the trial and conviction of the claimant who was dismissed for gross misconduct bordering on allegation of crime is sine qua non to the summary dismissal of the claimant from the employment of the defendant? (c) If, which is not conceded, that the claimant's dismissal was unlawful, whether the claimant's claims for reinstatement in alternative to payment of salaries, allowances and bonuses are available to the claimant or competently claimed? He submitted that this is a case of mere master and servant contract of employment with no provision in the contract denying the defendant of powers to dismiss the claimant for gross misconduct. He submitted that an employer can terminate or summarily dismiss an erring employee at any time, for any reason or indeed, for no reason at all without notice and without wages if he is guilty of gross misconduct citing Eze V. Spring Bank Plc [2011] 18 NWLR (Pt. 1278) 113 at 131, Anaja V. Uba Plc [2011] 15 NWLR (Pt. 1270) 377, Union Bank Ltd v. Ogboh [1995] 2 NWLR (Pt. 380) 647. He further submitted that the employment of the claimant and those of others in the consolidated suits being governed by general law of contract and the terms of employment, the defendant possesses the power to discipline and dismiss the claimant and the others for acts of gross misconduct. Learned counsel submitted that it is rather too late in the day for the claimant or any of the other executive members dismissed to now claim that for their role in Wema Bank Social Club, they were only accountable to the Club or the Club's constitution and not the defendant. That on the evidence adduced, the claimant and his colleagues were clearly accountable to the defendant who has the powers and authority in the circumstance to discipline and dismiss the claimant and the others for acts of gross misconduct in their activities in the financial improprieties of the club. It was his submission that gross misconduct is a conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer referring to Anaja V. Uba Plc Supra @ 398-399, UBN Ltd V. Ogboh Supra, Shuaibu V. N.A.B Ltd [1998] 5 NWLR Part 551, 182. He further submitted that the claimant's financial improprieties in the club constitute such misconduct of grave and weighty character that the defendant after the process of audit of the club's account, written answers to queries from the claimant and a disciplinary committee hearing and recommendations considered the actions of the claimant to work against its deep interest and consequently dismissed him and his colleagues. It was his submission that the defendant has discharged the burden of proving gross misconduct. Learned counsel submitted that the question whether the defendant can proceed to take disciplinary action against the claimant and other members of the Wema Bank Social Club on the allegation of gross misconduct bordering on the commission of a criminal offence without first of all securing a conviction in a competent court has been laid to rest by the Supreme Court in P.C. Eze V. Spring Bank Plc [2011] 18 NWLR (Pt1278) 1113 @ 135 paras D-E, per Mohammed JSC: "In other words, it is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offences under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service or employment”. He stated that the Supreme Court had earlier in the case of Arinze V. First Bank Of Nigeria Ltd [2004] 12 NWLR (Part 888) 663 @ 673 per Belgore JSC (as he then was) described the commonly held interpretation in Garba V. University Of Maiduguri [1987] 1 NWLR (Pt 18) 550 as "unfortunate" and "erroneous" and held that "in statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct”. It was his contention that even though the acts of gross misconduct i.e. financial misappropriation and embezzlement for which the claimant and others were dismissed borders on the commission of crime, the outcome of Police investigation, the legal opinion from the Federal Ministry of Justice or even the proceeding from a court of law is not a bar to any disciplinary measure taken against the claimant referring to Eze V. Spring Bank Plc Supra, Yusuf V. Union Bank Plc [1996] 6 NWLR (Pt 457) 632, Billie V. Multilinks Telecoms Ltd (2012) NLLR (Pt 84) 463. He argued that the defendant was justified to have dismissed them from their employment without waiting for the outcome of any criminal investigation or prosecution. Learned counsel submitted that the claimant and the other claimants in the consolidated suits are not at all entitled to the specific order of reinstatement to their erstwhile positions in the defendant neither are they entitled to the alternative claim to the payment of their salaries, allowances or bonuses. He argued that the claimant has not discharged the burden on his shoulders that his dismissal was wrongful and the terms of his contract of employment which were allegedly breached by the defendant to justify the court declaring the dismissal as a nullity. That being a declaratory relief, their claim for nullification of their dismissal cannot be granted without evidence even where the defendant expressly admitted same in the pleadings, the said relief being equitable in nature citing Ogolo V. Ogolo [2006] 10 WRN 92 @ 115. He further submitted that the relief of re-instatement is a plea for specific performance and incapable of being granted as this action is a mere master and servant relationship and not one with statutory flavour neither was the claimant dismissed on the allegation of taking part in trade union activities referring to UBN Ltd V. Ogboh Supra at 671, Ilodiba V. NCC LTD [1997] 7 NWLR (Pt. 512), 174 @ 198 paras D-E, Olaniyan V. University Of Lagos [1985] 3 NWLR (Pt. 9) 599, Nwobosi V. ACB Ltd [1995] 6 Nwlr (Pt. 404) 677, Murphy Shipping And Commercial Service Ltd V. Maritime Workers Union Of Nigeria [2012] NLLR (PART 75) 385 @ 309. Learned counsel submitted that where there is wrongful dismissal which is not conceded, the law is settled that the servant's remedy is an action in damages only. That having not claimed any relief for damages, the court is without jurisdiction and or competence to grant the claimant reliefs not claimed. He finally submitted that on the issues raised, the claimant has woefully failed to prove that he or any of the other of his colleagues is entitled to the reliefs claimed. He then urged the court to dismiss the action with substantial costs in favour of the defendant. Learned counsel to the claimant submitted the following issues for determination: 1. Whether the defendant and Wema Bank Social Club are one and the same as to give the defendant the power and competence to investigate the claimant for alleged financial improprieties committed by the claimant against Wema Bank Social Club. 2. Whether the correct procedure was followed or employed by the defendant as stipulated in the terms of employment when it dismissed the claimant from its employment having regard to the alleged financial impropriety committed by the claimant against the club? 3. Whether from the respective evidence of the parties the claimant is entitled to the reliefs sought in the complaint and statement of claim. He began by submitting that there are material contradictions in the evidence of DW and he is therefore not a witness of truth citing Alhaji Maigoro V Alhaji Bashin [2000] FWLR (Pt 19) 553 at 571, Iroagara v Ufomadu [2001] FWLR (Pt 61) 1753 at 1757,Ubani v State Vol 1 [2004] MJSC 91 at 106-10 among others. He submitted that the defendant came into being through its incorporation vide the founding promoters and/or shareholders who bind themselves together for their common good as provided for in the Memorandum and Articles of Association. He submitted further that Wema Bank Social Club is the creation of the employees of Wema Bank Plc who from the preamble to the constitution of the Wema Bank Social Club formed themselves into the club. He referred to Section 37 of the 1999 Constitution and submitted that the claimant is invested with the right to form an association with others for the protection of his interests. It was his contention that the differences between the club and the defendant are further pronounced by its finances; that whilst the finances of Wema Bank Social Club is sourced under Article VIII section 6 of the constitution to wit subscription, Donations, Banks Grant, Proceeds from Economic and Social Activities of the club and other legal sources, that of the defendant comes from various types of deposits and operations governed by its memorandum of association and the law. Learned counsel argued that the finances of the defendant are distinct, separate and independent from and of the finances of the club. He submitted that the club constitution is supreme and is the guiding document to anything done under its provisions including finance thereby regulating the relationship between members and between members and officers. Learned counsel submitted that any law or practice or action which contravenes any part of the club constitution will be regarded as inconsistent, and to the extent of that inconsistency void citing Tony Momoh v. Senate of the National Assembly and others [1981] 1 Nigeria Constitutional Law Reports 21, Federal Minister of Internal Affairs & Others v. Shugaba Abdurrahaman Darman [1982] 3 Nigerian Constitutional Law Reports Pages 915 – 1031. He submitted that where allegations of financial improprieties, offences are made against officers or members of the club recourse should be to the constitution of the club to determine the guilt of the officers because of its supremacy and not to management of the defendant. That in the same vein, if the allegations of financial improprieties, embezzlement, conspiracy and stealing is against the defendant the procedure to follow in investigating the criminal conduct of the claimant is as stipulated in his contract of employment. He submitted that the effect of entrenching a provision in the constitution is that it over-rides all contrary provisions in any law of the land be they substantive or adjectival citing Unibiz Nig. Limited v. C B. C L Ltd [2003] F.W.L.R. (Part 152) Attorney General- Federation v. Attorney-General Abia State and 35 Ors [2002] FWLR (Pt. 102) 1. Attorney-General Zamfara State v. Attorney-General of the Federation [2003] F.W.L.R. (Pt 152) 132-204. Learned counsel submitted that where there is departure from the prescribed procedure or a violation of the rules of natural justice, then the dismissal is unlawful referring to Olaniyan v. University of Lagos [1985] All Nigeria Law Reports 363-466; Adedeji v. Police Service Commission [1968] All Nigeria Law Report page 102; Nwobosi v. A.CB. Ltd [1995] 6 NWLR (Pt. 404) page 677. He submitted that it is necessary for a prior judicial determination before further disciplinary action could be meted out on a person accused of the commission of a crime. He argued that not allowing this to be done in the special circumstances of this case is to throw overboard the doctrine of Natural Justice citing Dangote v. C S. C Plateau State [2001] 9 NWLR (Pt. 717) 132. Learned counsel further argued that the defendant has no role in the affairs of the club as stated in paragraph 4 of the constitution: "No member or group of members of the club shall make any other rule or regulations. If so made, such rule or regulation shall be null and void". He submitted that the defendant's role in the accusation, charge, arraignment, trial and conviction of the claimant is a case of the defendant constituting itself into the complainant prosecutor and judge in its own cause which is against the rule of natural justice as has been enshrined in section 36 (1) of the 1999 Constitution. He cited Alakija v. Medical Disciplinary Committee [1959] 4 F.S.C. 38, Otapo v. Sunmonu [1987] 2 N.W.L.R (Pt. 58) 586, Aiytan v. NIFOR [1987] 3 N.W.L.R (Part 59) 48, WAEC v. Mbamalu [1992] 3 N.W.L.R. (pt. 230) 481 at 493-494, P. H. M. B. v. Edosa [2001] F.W.L.R. (Pt 41) 1799 -1814 at page 1811, NEPA v. Elfandi [1986] 3 NWLR (pt. 32) 884, Garba & Ors v. University of Maiduguri [1986] 1 NWLR (pt. 18) 550, Awe Odessa v. Federal Republic of Nigeria & 6 others Economic And financial Crimes Law Reports Vol3 [2006] 60-109, United Bank for Africa Ltd and Anor v. Mrs. Ngozi Achoru [1990] 6 NWLR (pt. 156) 254, (1990) 10 SCNJ-93, Alhaji Osumah v. Edo Broadcasting Service & Ors [2005] All FWLR (pt. 253) 773 at 787-788. He urged the court to hold that the defendant did not serve the audit report on the claimant and hence breached the principle of fair hearing, referring to Union Bank of Nigeria Ltd v. Patrick N. Ajagu [1990] 1 NWLR Part 126, 328 at 331 (CA). Learned counsel further submitted that the dismissal is not in line with the terms of contract between the parties as none of the terms of employment before the court stipulated dismissal as a way of bringing the relationship of parties to an end. That while the defendant is at liberty not to give any reason for determining the employment of the claimant, where he puts forward a reason for doing so it must establish the reason to the satisfaction of the court citing Shell Petroleum Development Co. Ltd v. Chief Victor Sunday Olanrewaju [2009] 6 W.R.N 53-83,h UBA v. Oranuba [2013] 37 W.R.N. 90-132. He submitted that the defendant has not justified the alleged criminal misconduct of the claimant and that where an employee's dismissal is wrongful and set aside, the employee is entitled to all claims and damages due to him even though his re-instatement is not ordered. He then urged the court to grant the reliefs in the statement of claim. Replying on point of law, learned counsel to the defendant submitted that the contract of employment having been brought to an end, the claimants are not entitled to the claims of salaries, gratuities, allowances or pension. He submitted that contradiction occurs where a piece of evidence affirms the opposite of what the other piece of evidence has stated on the same matter citing Okonkwo V. Okonkwo [2003] 51 WRN 112 at 146. He submitted that for there to be a contradiction in evidence, such contradiction must be material and the gravity of the mistake must be very high to create a doubt in the mind of the Judge of the core issue at stake. He submitted that the law is settled that he who alleges or desires the court to give him judgment based on the facts he alleges must prove those facts in order to succeed referring to Sections 131 and 133 of the Evidence Act, 2011, B.A. Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt 1262) 624. It was his submission that the claimant has not proved that the defendant has no power to dismiss him and his colleagues from its employment against the well-known principles of law that every employer retains the rights to discipline its employee citing Cooperative Dev. Bank Plc v. Essien [2001] 4 NWLR (Pt 104) 479, Yusuf v. VON Ltd [1996] 7 NWLR (Pt 462) 746. Learned counsel submitted that the facts and principles of fair hearing in relation to real likelihood of bias as stated in FAWEHINMI v. LPDC [1982] 3 NCLR VOL. 3, 719 which was cited in support of the argument of claimants counsel are cited out of context and unrelated to the facts in this case. He submitted that the facts of bias or real likelihood of bias were not pleaded by the claimants neither were those alleged facts made issues in this case and that no evidence was led to show the bias in the constitution of the various panels of the defendant referring to Saliba V. Yassin [2002] 13 WRN 69 at 77. He submitted that Aiyetan V. Nifor Supra, Olaniyan Vs Unilag Supra, Garba V. University Of Maiduguri Supra are cases decided by the courts on the basis that they are cases with statutory flavour as distinct from the facts of this case which is a mere master/servant relationship. He finally urged the court to dismiss this action with costs. 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 issues for determination in this judgement are: (i) whether the defendant has established the reason for which it summarily dismissed the claimant; (ii) whether the claimant was given a fair hearing on the allegations; (iii) whether on the pleadings and evidence the claimant ought to be entitled to the reliefs sought. I will begin with the preliminary issue of material contradictions raised by the claimant’s counsel. I have not seen any material contradiction in the evidence of DW and I so hold. There is no dispute from the evidence adduced that the claimant was employed by the defendant, was in its service for about twenty years and had risen to the position of Deputy Manager before he was dismissed by the defendant. It is settled that the burden of proof of establishing the terms of the contract of service that provides for the rights and obligations of the parties is on the claimant. See Section 131(1) & (2) of the Evidence Act 2011, Idoniboye-Obe v NNPC [2003] 2 NWLR (Pt 805) 589 at 630. The claimant has put in evidence only his letter of offer of probationary appointment dated 18th June 1990 and his letter of confirmation of appointment dated 5th February 1991 both given by the defendant. I therefore find established an employer/employee relationship between the parties. It is the law that an employer is not bound to give any reason for doing away with the services 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 claimant has alleged that his summary dismissal is null and void and the defendant lacked the authority to dismiss him. The defendant’s letter is reproduced as follows: February 10, 2010 WMB/146/02908 Oloyede Niniola Remedial Assets Management Group SUMMARY DISMISSAL In line with the terms of your Contract Agreement with this Bank, Management has decided to summarily dismiss you from the services of the bank with immediate effect for an act of gross misconduct. You should surrender the entire Bank’s property in your possession including your staff identity card to the GH, Remedial Assets Management Group. Yours Faithfully, For: Wema Bank Plc Femi Olowoyeye Head, Human Capital Management Having given the reason “for an act of gross misconduct”, the onus is on the defendant to establish that the claimant committed gross misconduct. From the pleadings and evidence, the claimant in his role and conduct as Treasurer of Wema Bank Social Club in conjunction with the other executive members of the club was alleged by the defendant to be involved in acts of financial impropriety, misappropriation and unjustifiable utilization of a large sum of money belonging to the Wema Bank Social Club. Neither of the parties has put in evidence an employee handbook or other document stipulating conduct regarded as gross misconduct by the defendant. However, gross misconduct has been defined in U.B.N. v Ogboh [1995] 2 NWLR (Pt 380) 647 to be conduct of a grave and weighty character which is against the interest of the employer leading to loss of confidence in the employee by the employer as to warrant his continued retention. See also Anaja v UBA Plc [2011] 15 NWLR (Pt 1270) 377. I find the allegations against the claimant and other executive members fall under the category of gross misconduct. In establishing its justification for the dismissal of the claimant and other executive members of the club, the defendant has put in evidence the audit queries issued to the claimant and other executive members. Also in evidence is the reply of the claimant and the joint reply of the claimant and other executive members of the club. Being dissatisfied with the replies, the defendant invited the claimant in writing to appear before its disciplinary committee. The claimant’s evidence on this is reproduced as follows: Before the defendant dismissed us, we were invited to a disciplinary panel and had the opportunity to defend ourselves. It will be surprising to hear we were not given any fair hearing. In the light of this evidence, it is surprising that learned counsel to the claimant has still gone on to argue extensively that the claimant was not given a fair hearing. Fair hearing simply means opportunity to be heard. In B.A. Imonikhe v Unity Bank Plc [2011] 4 SC (Pt 1) 104, the Supreme Court per Rhodes-Vivour JSC at 135 restated the principle in employment disputes as follows: Audi alterem partem is a maxim denoting basic fairness…It simply means hear the other side….Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed. I find that the two cardinal principles of natural justice were not breached by the defendant in the exercise of its disciplinary powers. I therefore hold that the claimant and the other executive officers were given a fair hearing by the defendant. The disciplinary committee recommended the summary dismissal of the claimant and other executive members of the club in its report to the Executive Management Committee. The defendant believed that the claimant and other executive members of the club committed gross misconduct and consequently approved the recommendation and summarily dismissed the claimant and other executive members. I hold that the defendant has established the reason for which it dismissed the claimant and the other executive members from its services to the satisfaction of the court. See Bamgboye v University of Ilorin [1999] 10 NWLR (Pt 622) 290 at 326, Yusuf v Union Bank Plc [1996] 6 NWLR (Pt 457) 632, Bamgboye v University of Ilorin [2001] FWLR (Pt 32) 12. It is not a requirement of the law that before an employer summarily dismisses his employee, the employee must be tried before a court of law where the accusation against him is for gross misconduct bordering on criminality. This position has been settled by the Supreme Court in P.C Eze v Spring Bank Plc [2011] 18 NWLR (Pt 1278) 113. See also Yusuf v Union Bank Plc [1996] 6 NWLR (Pt 457) 632, Bamgboye v University of Ilorin [2001] FWLR (Pt 32) 12. Therefore, the legal advise given by the Federal Ministry of Justice to the Commissioner of Police that a prima facie case of financial misappropriation cannot be established against the claimant and the other executives becomes irrelevant to this employment dispute. Learned counsel to the claimant has submitted that the defendant and the club are not one and the same and that the defendant did not have the authority to take the actions it did because of the supremacy of the club’s constitution which contains provisions for dealing with financial misappropriation. It is the law that an employer has the powers and authority to terminate or summarily dismiss an erring employee at any time. It is completely illogical for counsel to make copious submissions that equate the constitution of the social club to the same level as the 1999 Constitution of the Federal Republic of Nigeria. The Supremacy of the Constitution of the Federal Republic of Nigeria is entrenched in Section 1 (3) of the 1999 Constitution as amended. The doctrine of Supremacy of the Constitution is a serious legal principle that is applied where subordinate legislation is inconsistent with the provisions of the 1999 Constitution as can be clearly seen from the authorities cited by the claimant’s counsel. It is not to be used to draw parallels with the constitution of a social club. Article II clause 4, of the club constitution provides that one of the aims and objectives of the Club is “to protect and advance the socio-economic and cultural interests of WEMA BANK PLC” while Article III clause 1 provides that “membership of the club shall be all serving members of staff employed by WEMA BANK PLC or its subsidiaries whether confirmed or unconfirmed”. The Preamble to the club constitution is that the provisions are binding on all members of the club. The evidence before the court is that the defendant supports the club morally and financially and the claimant and other executive officers always seek its approval and blessing. I make the following findings from the evidence adduced: the purpose of the club is to protect and advance the defendant’s interest; the defendant is a major stakeholder in its role as promoter and financial contributor to the club; employment in the defendant bank and its subsidiaries is what qualifies a person to be a member of the club. I therefore hold that the defendant as employer of the claimant and a stakeholder of the club has the authority and moral obligation to take necessary action to protect its interests and that of the members of the club. The claimant seeks an order for the payment of his salary, allowances and gratuity. In the case of U.B.N. Ltd v Ogboh [1995] 2 NWLR (Pt 380) 647 at 669 paragraph F-G, the Supreme Court per Iguh JSC stated the position as follows: No doubt, were an employee is guilty of gross misconduct, and this has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employers or working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages. See also P.C Eze v Spring Bank Plc [2011] 18 NWLR (Pt 1278) 113. I therefore hold that the claimant having been lawfully dismissed for gross misconduct, is not entitled to any of the reliefs he is seeking. For all the reasons given, this case is hereby dismissed in its entirety. As agreed by the parties and their counsel, this decision shall abide the following Suits: NICN/LA/99/2012, NICN/LA/100/2012 and NICN/LA/101/2012 consolidated with this suit. Costs of N10,000.00 is awarded in favour of the defendant. Judgement is entered accordingly. _______________________________ Hon. Justice O.A. Obaseki-Osaghae