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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 23RD FEBRUARY, 2015 Suit No. NICN/ABJ/01/2014 BETWEEN MR. GODFREY OMEZIE MOGBO CLAIMANT AND CENTRAL BANK OF NIGERIA DEFENDANT REPRESENTATION Kolawole Olowokere Esq with O. Olorunisola Esq, Henry Chukwudi Esq, M. A. Awuru Esq, S. A. Ajayi Esq and J. I. Ekeoma Esq for the Claimant. Hamza. A. Gudaji Esq with A. Y. Abubakar Esq for the Defendant. JUDGMENT By a complaint dated and filed on 6th January, 2014, the claimant seeks the following reliefs against the defendant:- The claimant seeks the following reliefs against the defendant:- 1. A DECLARATION that the Defendant’s dismissal of the Claimant from the defendant’s service is illegal and ultra vires the provisions of the defendant’s employee handbook and the rules of natural justice and is therefore null and void and of no effect whatsoever. 2. A DECLARATION that the claimant is deemed to have mandatory retired from the service of the defendant upon his attaining the statutory age of 60 years on 1st February, 2014. 3. AN ORDER setting aside the defendant’s letter of dismissal dated 4th October, 2013. 4. AN ORDER directing the defendant to pay to the claimant his monthly salaries and allowances for the months of October, November, December, 2013 up till January, 2014. 5. AN ORDER directing the defendant to pay to the claimant his gratuity in the sum of N80,000,000.00 (Eighty Million Naira) Only immediately or any such higher sum that the claimant may be entitled to. 6. AN ORDER directing the defendant to issue immediately the necessary clearance to enable the claimant access his pension in Account No. PFN 100550691218 with ARM Pension Funds Administrators in the sum of N77,000,000 (Seventy Seven Million Naira) Only as at 31st January, 2014 and nay such higher sum that may have accrued. 7. AN ORDER directing the defendant to pay the claimant the sum of N2,700,000 (Two Million Seven Hundred Thousand Naira) Only following the assessment of the Year 2012 being the end of year productivity bonus or any higher sum due to the claimant following the said performance evaluation. 8. Payment of the sum of N100,000,000 (One Hundred Million Naira) Only as general damages for trauma and psychological disorientation caused the claimant by the defendant. 9. 10% interest on the Judgment sum from the date of Judgment until final liquidation. 10. Such Further Orders. Accompanying the complaints are the claimant’s statement of facts, statement on Oath, list of witnesses and list of documents to be relied upon. By a memorandum of appearance dated 20th February, 2014 and filed on 24th March, 2014 the defendant entered an appearance. The defendant thereafter filed it’s amended statement of defence, list of witnesses, witnesses statement on Oath and list of document to be relied upon at the trial. The matter went on trial, the claimant testified in his case and tendered Exhibits. The defendant called 2 witnesses. The Defendant submits the following issues for determination:- 1. Whether the claimant was given fair hearing for illegal financial transaction. 2. Whether the employment of the claimant had statutory flavour and the consequences thereof. On whether the claimant was given fair hearing for illegal financial transaction. He submitted that the claimant was afforded ample opportunity for fair hearing by the Central Disciplinary Committee. It was admitted that the sitting of the CDC was for financial embarrassment. But the CDC hearing disclosed facts and evidence pointing to illegal financial transaction against the claimant. However, the claimant was queried based on illegal financial transaction. Prior to the query, the defendant also gave the claimant the opportunity to explain himself vide the letter dated January 10, 2013 to which the claimant responded vide a letter dated 17th January, 2013. Therefore, even without the CDC sitting the claimant had already been given fair hearing vide the query dated March 25, 2013 in respect of the offence of illegal financial transaction. The Court of Appeal in Eigbe V N.U.T (2008) 5 NWLR (Pt. 1081) P. 610 at P. 628 held on import of fair hearing in disciplinary action against an employee s follows:- The issue of fair hearing under the Constitution simply implies that before any disciplinary action is taken against a person, he is first and foremost confronted with whatever allegations his accusers have against him and he is given a reasonable time to prepare for and present his defence either orally and or in a written form before his accusers, in the instant case, the query issued to the appellant showed that he was given 48 hours to present defence which he did in writing. The defendant submitted that the claimant in the instant case was given query dated March 25, 2013 and made a written reply dated 27th April, 2013 as contained in Exhibit DW2. Consequent upon which he was invited before a duly constituted CDC of the defendant wherein he admitted all the allegations levelled against him. Accordingly, the CDC found the claimant guilty of the charge which contravenes chapter 6.4.2.2 (2) ix (financial embarrassment) and xi (engaging in business that conflicts with the Bank’s interest), of the Human Resources Policies and Procedures Manual (HRPPM) which constitutes offences that could lead to Termination of Appointment. Continuing the defendant submitted that the allegation of misconduct which also bordered on criminality as levelled against the claimant need to be prosecuted in court before the claimant can be summarily dismissed. This is in line with the decision in Arinze V F.B.N. (2004) 12 NWLR (Pt. 888) P. 665 wherein it was held thus:- In statutory employment as well as in private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonestly bordering on criminality, and, in such a case, it is not necessary, nor is it required under Section 36(1) of the 1999 Constitution that employee must first be tried in a court of law ........ The defendant further submitted that the list of offences in the condition of service which can attract dismissal is not exhaustive, therefore the defendant can include illegal financial transaction or any other offence it deems fit to the list. Section 6.4.2.2 (b) of the CBN Human Resources Policies and Procedures Manual provides:- All employees are expected to maintain standards of conduct suitable and acceptable in the work environment. Disciplinary action including dismissal shall be imposed for unacceptable conduct. The following examples of unsatisfactory or unacceptable conduct or performance do not constitute an exhaustive list. They are only provided for the guidance of Departmental Directors and line Managers as a broad indication of what the Bank considers to be unacceptable conduct or performance, and of the degree of severity with which different forms of misconduct are regarded. Behavior constituting gross misconduct for which summary dismissal is normally appropriate are ...... (ii) theft, fraud and or forgery & (iv) Breach of trust ... The underline is ours for emphasis. The defendant also submitted that without prejudice to the above submission, aside from engagement in illegal financial transaction, the claimant also engaged in fraud and breach of trust which does not need any proceeding of court or Tribunal before the defendant can determine such offences. In Eigbe V N.U.T. (supra) it was held:- The principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee is not an immutable principle. Consequently, in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. In other words, to satisfy the rule of natural justice and fair hearing in this instance, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. In the instant case, which is one of misconduct bordering on criminality, all that is required of the respondent before summarily dismissing the appellant was to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. See similarly in Arinze V F.B.N Ltd (2004) 12 NWLR (Pt. 888) 663. The defendant then submitted that the claimant’s business was illegal because the claimant was lending money without a license and charging interest at 48% 82 and 120% per annum. The defendant did not need to specify the law that rendered the financial transactions of the claimant’s illegal because the defendant is not a Court of Law. The defendant had acted within its power to determine the case of the claimant and meted the appropriate sanctions. The defendant urged the court to so hold. The defendant further submitted that the dismissal of the claimant by the defendant is done in accordance with the Employee Handbook of the defendant and the rules of natural justice and therefore not illegal or whatsoever. In Eze V Spring Bank (2011) 48 NSCQR P. 128 the Supreme Court held:- The principle of natural justice as enshrined in the rules of natural justice, the common law and the Constitution of this Country is certainly not confined to the proceedings of Courts or Tribunals under Section 6(5) of the Constitution but to every situation wherever a person or authority is concerned in the determination of rights of another in such a manner that the version of the person against whom the determination is to be made, is an essential requirement of the process of determination. M. Mohammed JSC at P. 141. In line with the above decision the defendant had accordingly granted the claimant the opportunity to be heard based on the alleged offence before dismissing him. Nonetheless, the disciplinary procedure followed by the defendant afforded fair hearing to the claimant and the procedure complied substantially with the conditions of service. He urged the court to so hold. The defendant went on to submit on whether the employment of the claimant had statutory flavour and consequences thereof: Without prejudice to the foregoing, it is submitted that the claimant’s employment does not have statutory flavour and therefore the defendant could dismiss the claimant for the offence of engaging in illegal financial transaction even if same is not in the condition of service. In Tamunoemi – Obu V NNPC (2003) 2 NWLR (Pt. 805) P. 601 the court held that:- The rule and regulations which are claimed by an employee to be part of the terms and conditions of his employment capable of giving it statutory flavour and be of protection to the employee must:- a. Have statutory reinforcement or at any rate, be regarded as mandatory; b. Be directly applicable to the employee or persons of his cadre; c. Be seen to be intended for the protection of that employment; and d. Have been breached in the course of determining the employment; Before they can be relied on to challenge the validity of that determination. In other words, before an employment can have statutory flavour, the statute must expressly make it so. Otherwise, the employment will have to be treated on the basis of the common law principle of master and servant. In the instant case, the appellant’s employment did not enjoy statutory flavour. Similarly, in Imoloama V West African Examination Council (1992) 9 NWLR (Pt. 265) P. 303 at P. 306 it was held that:- an employment is said to have a statutory flavour when the appointment has been protected by statute. In the instant case, the appointment of the appellant was not governed by any statutory provision and accordingly, does not enjoy any statutory protection. The defendant submitted that the claimant’s employment does not enjoy any statutory flavour to entitle him to any statutory protection. He urged the court to so hold. In conclusion the defendant submitted that in view of the foregoing argument, judicial authorities and all the documents admitted during the trial of this case, he urged the court to hold that the claimant was lawfully dismissed; and there was no breached of the defendant employee handbook and the rule of natural justice and it is therefore not illegal or ultra vires. He further urged this Honourable Court to dismiss the claims of the claimant in its entirety. The claimant formulated 2 issues for the determination of the court to with:- Issue One Whether the claimant’s employment is one with statutory flavour and if answered in the affirmative whether the defendant’s letter of dismissal is NOT null and void for being ultra vires the defendant’s Human Resources Policies and Procedure Manual and for violating the Rules of natural Justice. Issue Two Whether in the circumstances of this suit, the claimant is not entitled to his salaries, allowances, gratuity, pension, terminal benefits, and damages. In his argument on issue one the claimant submitted that as a preliminary point, it is necessary to first bring to the notice of the court the fact and nature of the claimant’s employment. Counsel submitted that there are three categories of contracts of employment, they are:- a. Those regarded as purely master and servant. b. Those where a servant holds office at the pleasure of the employer and; c. Those where the employment is regulated or governed by statute, otherwise known as employment with statutory flavour. See CBN V IGWILLO (2007) 14 NWLR (PT. 1054) Page 396 at Page 419 Para H. OLANIYAN V UNIVERSITY OF LAGOS (1985) 2 NWLR (PT 9) AT 599. The claimant submitted that the first two categories of employment listed above are not relevant to the issue formulated for determination. The focus of this issue is the third category which is whether the claimant’s employment is governed by statute. To the claimant the importance of this discussion lies in the fact that it is only in cases of employment governed by statute that a dismissal can be said to be ‘unlawful, ultra vires, null and void and of no effect’. In all other cases which have no statutory flavour, all that the court has to say is that the dismissal is wrongful as the required notice was not given. In such a case, there would be no question of the dismissal being ultra vires, null and void or being of no effect. The only available remedy to such a plaintiff would be damages. Per Akpabio, J. C. A. In Cooperative and Commerce Bank Nig Ltd V Okonkwo (2001) 15 N.W.L.R (Part 35) Page 114 at 137 – 138. The poser here is when can an employment be described as one with statutory flavour. The Supreme Court in CBN V IGWILO (supra) gave an in depth definition of an employment with statutory flavour thus:- An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. From the above definition, it is safe to argue that an employment has statutory flavour when the appointment is protected by statute or laid down regulation made pursuant to the provision of a statute to govern the procedure for employment and discipline of an employee. See CBN V DINNAH (2010) 17 NWLR (PART 1221) PAGE 125 AND 16. AZENABOR V BAYERO UNIVERSITY KANO (2009) 17 NWLR (PT. 1169) PAGE 96 AT PAGE 108 (PARAS F – H). In the instant case and from the evidence before this Honourable Court the claimant is a deputy director of currency operations with the defendant before he was unlawfully dismissed from service. A look at the provision of Section 14(4) of the Central Bank of Nigeria (Establishment) Act 2004 will demonstrate that the claimant’s employment is protected by statute. The Section provides thus:- 14(4) Appointment of employees of the Bank shall only be in respect of positions created by the Bank and on such terms and conditions as may be laid down by the Board. Provided that the appointment and removal of the grade of Assistant Director and above shall be with the approval of the Board. The claimant submitted that by the above provisions of the law, the claimant’s employment is protected by statute and he urged the court to so hold. The claimant submitted further that in addition to the above point, the Human Resources Policies and Procedure Manual (HRPM) was made by the Board pursuant to the powers conferred by the Act and the HRPPM stipulates the procedure and condition for appointment and removal of staff of the defendant in which case he can safely conclude that the claimant’s employment it also regulated by the HRPPM which the defendant is obliged to comply with. That from both perspectives, it is submitted that the employment of the claimant is regulated by statute and is thus clothed with statutory flavour and he urged the court to so hold. The claimant said it is now settled judicially that employment with the instant defendant (CBN) particularly with respect to the executive cadre of staff (as the claimant in this case) belong to the class of those cloth with statutory flavour. Relying on the finding of the Court of Appeal in the case of C. B.N. V DINNAH (2010) 17 NWLR (PART 1221) PAGE 125 AND 126 where the court per LOKULO-SODIPE JCA at PAGE 177 PARA. D held thus:- In view of the findings, that the employment of the respondent prior to his dismissal was one with statutory flavour, and that employment was wrongfully terminated by way of dismissal and which made the same to be null and void ...... See also CBN V IGWILO (2007) 14 NWLR (PT. 1054) Page 396 at Page 419 Para H. It is clear from the foregoing that both cases cited above were decided by both the Supreme Court and the Court of Appeal and in both cases the courts were interpreting the nature of employment with the Central Bank of Nigeria and urged the court to follow the said decisions. The claimant then submitted that from statutory and judicial authorities cited above and having regard to the case at hand, it is obvious that the employment of the claimant is regulated by statute which includes the C. B.N. Act and the Human Resource Policies and Procedure Manual (HRPPM). To the claimant it is without doubt therefore that the argument of the learned counsel to the defendant at paragraph 5.0 and 5.1 of the final written address referring to the cases of TAMUNOEMI IDONIBOYE-OBU V NNPC (2003) 2 NWLR (PT. 805) P. 601 AND IMOLOAMA V WEST AFRICAN EXAMIANTIONS COUNCIL (1992) 9 NWLR (PT. 265) P. 303 AT P. 306 cited therein are, with respect, inapplicable, distinguishable and not supportive of the case of the defendant and urged the court to discountenance same. The defendant said having urged the court to answer the poser in issue one in the affirmative, the defendant’s letter of dismissal is null and void for being ultra vires the defendant’s Human Resources Policies and Procedure Manual and for violating the Rules of Natural Justice. That to nullify the dismissal, is premised on argument on four grounds which include the following: lack of capacity to try a criminal matter, non existence of the alleged offence in any statute, non confrontation of claimant with allegation, imposition of higher punishment than prescribed by regulation and malice. The claimant commenced the argument in the above stated order:- On the issue of lack of capacity to try a criminal matter The claimant contended that from the content of Exhibit PW4, which is the letter of dismissal of the claimant, that the claimant was dismissed for illegal financial transaction. The claimant submitted that the word ‘illegal’ is defined by Black’s Law Dictionary’ 8th edition Bryan A. Garner at page 763 thus:- Illegal means forbidden by law, unlawful. At page 157 of the dictionary, the word unlawful is defined to means:- Unlawful: Not authorized by law, illegal, criminally punishable. That what can deduce from the above definitions that illegal financial transaction is a transaction not authorized by law, illegal and which is criminally punishable. That it is now elementary that only courts of competent criminal jurisdiction can try criminal offences in Nigeria and punish for same. That it is without argument that illegal financial transaction is a criminal offence which can only be tried by a court of competent jurisdiction. To the claimant the defendant contended at paragraphs 17 and 20 of her amended statement of defence that the nature of the ‘illegal financial transaction’ carried out by the claimant is fraudulent and also amounts to a breach of trust. That the defendant further contended that the fraudulent dealing and breach of trust which characterized the illegal financial transaction which the claimant was alleged to have been involved in attracts summary dismissal under paragraph 6.3.1.2. (1) of the employee handbook and paragraph 6.4.2.2. of the H.R.P.P.M. of the defendant. Then it is trite law that the defendant does not have the power and the ‘jurisdiction’ to delve into any contract or misconduct boarding on allegation of crime. This has been the trend in a long line of judicial authorities as properly captured by the Supreme Court in the celebrated case of INSTITUTE OF HEALTH AHMADU BELLO UNIVERSITY HOSPITAL MANAGEMENT BOARD V MRS. JUMMAI R. I. ANYIP (2011) 12 NWLR (PART 1260) PAGE 1, PAGE 17 PARAGRAPHS B – F thus:- Our system arrogates to the court the burden of trial of persons accused of criminal offence and the duty of pronouncing his guilt in an open court where the facts are subjected to the acid test of cross-examination. To do otherwise will constitute an unwarranted attack on our system of criminal justice. In the instance case, the disciplinary committee heard both the appellant and the respondent before concluding that the respondent was not culpable. The only authority that could hold otherwise when an issue of criminality is involved is a court of competent jurisdiction. (Emphasis Ours). The Supreme Court continued at page 16 – 17 paragraphs H – A of the case under reference thus:- Once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair trial. It is necessary for a prior judicial determination before further disciplinary action could be meted out to a person accused of commission of criminal offence. (Emphasis ours). That the sum total of the above argument is that by Section 36 of the constitution of the Federal Republic of Nigeria (C.F.R.N.) 1999 (as amended) the claimant is duly protected from being judged by an Administrative tribunal as that constituted by the defendant particularly in cases relating to criminal allegations. Section 36(4) of the C.F.R.N. provides:- Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court of tribunal ....... The above Constitutional provision has been given judicial recognition in several cases including the case of ANAKIAM V U.B.N. OF NIG. LTD (1994) 1 NWLR (PART 332) 557 AT 567 where Okunlola J.C.A. observed thus:- The allegation upon which the dismissal of the appellant was founded was not proved as required by law ..... The Supreme Court quoted the above observation with approval when per Opene J.S.C. in Shuaibu V U.B.N. (1995) 4 NWLR (Part 388) 173 at 183 – 184 referred to same and further held thus:- The position of the law being that where a dismissal is based on a criminal charge or allegation, such allegation must first of all be proved before the dismissal can stand. See Garba V University of Maiduguri (1986) 1 NWLR (Part 18) 550; AIYERAN V NIGERIAN INSTITUTE FOR PALM OIL RESEARCH (1987) 3 NWLR (Part 594) 8 ....... The claimant urged the court to hold that the defendant was wrong to have found the claimant guilty of a criminal offence and to have dismissed him on same when the allegation upon which the dismissal was based was never proved. On the issue Non Existence of the alleged offence in any statute The claimant said that assuming but not conceding that the defendant is imbued with the judicial power or has the criminal jurisdiction to try the offence of illegal financial transaction, where there is no written law which provides for the existence of the said offence and as such the dismissal based on alleged crime which is not contained in the law Books is deserving of being set aside. A look at Exhibit PW1 which is the defendant’s Employee Handbook at paragraph 6.3.1.2 and paragraph 6.4.2.2. of the HRPPM and the testimony of the PW1 during cross examination will reveal that the phrase ‘illegal financial transaction’ is not contained anywhere in the books and it is also not an offence known to law. It is trite that an act cannot be an offence unless the offence is defined and the penalty prescribed. This principle of law is provided for in Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides thus:- Subject as otherwise provided by the Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law and in this subsection, a written law refers to an act of the national assembly or a law of a state, any subsidiary legislation or instrument under the provision of a law. Further to the above is the provision, of Section 36 (8) of the C.B.N. provides thus:- No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. (Emphasis Ours) The claimant urged the court to give full effect to the provision of this constitution and to hold that the letter of dismissal runs foul of the above provisions of the C.F.R.N. and to proceed to grant the claim of the claimant. To the claimant it is interesting to note that the defendant has contended at paragraph 4.5 of her written address that the list of offences in the condition of service which attract dismissal is not exhaustive and has argued further that the ‘defendant can include illegal financial transaction or any other offence it deems fit to the list’. The claimant argued in this respect to the learned counsel to the defendant, that in line with the above constitutional provisions, all criminal offences must be prescribed in a written law and no offence can exist at the whims and caprices of any person or group of persons no matter how powerful. Paragraph 6.4.2.2. sub-paragraph 13 of the H.R.P.P.M. states in part thus:- Disciplinary action including dismissal shall be imposed for unacceptable conduct. The following examples of unsatisfactory or unacceptable conduct or performance do not constitute an exhaustive list ...... The defendant states in her statement of defence and her final written address that the defendant’s board of directors derived the power to dismiss the claimant from this paragraph by unilaterally formulating the phrase ‘illegal financial transaction’ and thus dismissed the claimant on that allegation. The claimant submitted is an act of executive lawlessness. The fact that sub paragraph 13 of paragraph 6.4.2.2 of H.R.P.P.M. listed a number of offences which are criminal and upon which a staff of the defendant may be dismissed if found wanting, does not in any way cloth the Board of Directors with legislative and judicial powers. Claimant submitted that the in-exhaustiveness of listed criminal offences must only admit of an offence under a written law or at least an offence known to law, the allusion that ‘illegal financial transaction’ which is not known to law should be construed to fall within the ambit of theft, fraud, forgery, breach of trust, falsification of official documents and records, is with respect not tenable in law and an attempt to mislead this Honourable Court. The claimant urged the court to hold that the offence for which the claimant was allegedly dismissed is unknown to law and has thus rendered the dismissal liable to be declared null and void. On this issue Non confrontation of claimant with allegation The claimant further stated that the ground on which he seeks that the defendant’s letter of dismissal be declared null and void is that whereas the claimant was by Exhibit PW3 invited by the defendant to defend himself against the allegations of Financial Embarrassment, the said letter of dismissal Exhibit PW4 dismissed the claimant for involvement in illegal financial transaction. Going by the evidence of both PW1 and DW1 the claimant was only invited specifically to answer to the allegations of financial embarrassment and thus had no notice of the allegation of illegal financial transaction upon which the dismissal was based. One of the cardinal principles upon which the pillars of Natural justice are based is the rule that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands in detail of the nature of the offence and be given adequate time and facility for the preparation of his defence. These are the provisions of section 36 (6) (a) and (b) of the C.F.R.N. The judicial interpretation of the above provision has been variously given and we shall place reliance on the authority cited at paragraph 4.1 of the defendant’s final written address which is the Court of Appeal’s decision in EIGBE V N.U.T. (2008) 5 NWLR (PART 1081) 610 AT 628 thus:- The issue of fair hearing under the constitution simply implies that before any disciplinary action is taken against a person, he is first and foremost confronted with whatever allegation his accusers have against him and he is given a reasonable time to prepare for and present his defence either orally and or in a written form before his accusers ...... The claimant submitted that in the instant case the claimant did not receive any invitation to defend himself against the allegations of illegal financial transaction. By the evidence of DW1 and the exhibits before this Honourable Court, the only invitation which the claimant received was to defend himself against the allegation of financial embarrassment and no more. It is thus a violation of the constitutional right of the claimant to have dismissed him for illegal financial transaction when he was never confronted with it. The defendant has canvassed in her written address at paragraph 4.1, 4.3 and 4.6 that the claimant was issued a query based on illegal financial transaction and that prior to the query the claimant was given an opportunity to explain himself via the letter dated 10th January, 2013 and further that even without a convocation of the Central Disciplinary Committee (C.D.C.), the claimant had been afforded a fair hearing vide the query of 25th March, 2013 in respect of the offence of illegal financial transaction. To the defendant’s counsel the letter of 10th January, 2013 at best relates to allegation of financial embarrassment and no more. The query of 25th March, 2013 is the first step in the disciplinary procedure of the defendant as prescribed by the H.R.P.P.M. and the convocation of a C.D.C. cannot be circumvented as it is a mandatory provision of the H.R.P.P.M. as contained in clauses 6.5.4.1 and 6.5.4.2 which are reproduced below:- 6.5.4 Disciplinary Committee Procedure 6.5.4.1. Query In all cases, the Disciplinary Committee shall allow the employee against whom an allegation is made to defend himself/herself. The employee shall be issued a query, setting out in clear terms the charges against him/her and be requested to answer the query within three (3) working days of receipt. Failure to reply the query within three (3) working days of receipt shall be deemed as an act of insubordination which shall be treated accordingly. 6.5.4.2. On receipt of the response to the query or at the expiration of three working days from the date of receipt of the query by the employee, the committee shall commence sitting after duly informing the employee. On arraignment before the committee, the charge(s) against him/her shall be read by the chairman and the employee shall be asked to make a plea. Before his/her plea is taken, the facts of the case be explained to him/her. If the employee pleads guilty, the committee shall recommend to the Departmental Director or the Director, HR the appropriate disciplinary measure to be taken against the employee. Where the employee makes a plea of not guilty, he/she shall be given the opportunity to defend himself/herself. He/she shall be given the facility to invite his/her witness(es), or tender documents, if any, and also to cross-examine opposing witnesses. The employee shall however not use any of these facilities to delay proceedings unreasonably. The claimant therefore submitted that the convocation of C.D.C. to commence a hearing which begins with a plea of ‘guilty’ or ‘not guilty’ is a mandatory provision of the H.R.P.P.M. and it is therefore wrong to submit as the defendant did at paragraph 4.1 of her written address that even without the C.D.C. sitting the claimant had already been given a fair hearing. He urged the court to so hold. The defendant has admitted in line with the evidence before this Honourable Court at paragraph 4.3 of her written address that no criminal allegation was placed or read out to be the claimant by the C.D.C. and that only the allegations of financial embarrassment and engaging in business that conflicts with the Bank’s interest (NOT illegal financial transaction) were read out to the claimant. While the above admission underscores the fact that the claimant had no prior knowledge of any criminal allegation against him we must be quick to point out that Exhibit PW3 only refers to the allegation of financial embarrassment. The defendant surprisingly at paragraph 4.6 of her written address submitted that the claimant also engaged in fraud and breach of trust. He submitted that the above submission is tantamount to giving evidence in a written address and there is no iota of evidence on record to support same and he urged the court to discountenance same. Assuming but not conceding that the Honourable Court does not agree with our submission in paragraph 3.28.11 above, that we adopt our argument in paragraph 3.28.1 - 3.28.8 above and submitted that these allegations were never made against the claimant and he had no opportunity to defend himself against same. In closing our argument on this subhead, counsel referred to the famous dictum of Olatawura JSC (as he then was) in EREKANURE V STATE (1993) 5 NWLR (PART 294) 239 AT 393. It is true that a man who does not know or understand the details of the offence with which he is charged and who was subsequently convicted cannot be said to have had a fair trial, The claimant urged the court to uphold our argument on this subhead and to declare the dismissal of the claimant’s as null and void. Imposition of Higher punishment than prescribed by regulation A further ground upon which the claimant urged this Honourable Court to declare the defendant’s letter of dismissal as null and void is that assuming but not conceding that the claimant was guilty of the allegations against him, the letter of dismissal imposed a punishment higher than that prescribed by law at the time of the alleged commission of the offence. Claimant submitted that the general position of the law is captured by the provision of Section 36 (8) of the C.F.R.N. thus:- No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. In the instance case, the findings of the C.D.C. as contained at pages 48, 49 and 50 of the report admitted as Exhibit PW6 by this Honourable Court shows the following:- Failure to comply with management’s directive Mr. Mogbo was therefore found GUILTY of the charge. Financial Embarrassment Consequently, Mr. Mogbo was therefore found GUILTY of the charge. Engaging in a business that conflicts with the Bank’s interest Consequently, the committee also found him GUILTY of the charge. It is imperative to state that Mr. Mogbo’s actions boarders on misconduct. This no doubt, contravenes chapter 6.4.2.2. (2) ix (financial embarrassment) and xi (Engaging in business that conflicts with the Bank’s interest) of the Human Resources Policies and Procedures Manual (H.R.P.P.M.), which constitutes offences that could lead to termination of appointment. Recommendations In the light of the foregoing, the committee recommends the immediate Retirement of Mr. G.O.C. Mogbo (ID No. 10656), Deputy Director from the bank’s services..... By the provision of clause 6.4.2.2. (2) of the H.R.P.P.M. the maximum punishment for the offences allegedly committed by the claimant is TERMINATION. It is therefore interesting that three committees reviewed the recommendations of the C.D.C. which are the committee of Governors, the Committee of Establishment and the Committee of Board of Directors. At the end of the series of review, the defendant issued Exhibit PW4 which is the defendant’s letter dismissing the claimant. The poser therefore is where did the power to dismiss the claimant upon the existing allegation arise from? In shedding light on what the attitude of the court should be in a situation like this we shall humbly commend to the court the decision of the Supreme Court in a celebrated case. The Supreme Court per FABIYI JSC at page 22 paragraphs C – F of the case of INSTITUTE OF HEALTH AHMADU BELLO UNIVERSITY HOSPITAL MANAGEMENT BOARD V MRS. JUMMAI R. I. ANYIP (Supra) found in a similar situation as the instant case thus:- It is clear that parties are ad idem that the allegation against the respondent is one of theft of expired drugs which relates to the criminal realm. The Appellant set up an Administrative Disciplinary Committee which investigated the allegation of theft and exculpated the respondent in its report in Exhibits 5 and 6. The committee even recommended the respondent’s reinstatement. This notwithstanding, the Appellant still served the respondent with a letter of dismissal, as if there was more to it than meets the ordinary eye. It is clear to me that the Disciplinary panel having exonerated the respondent of the allegation of theft against her, the proper venue to establish her guilt for the commission of the same offence as to warrant her dismissal from service is a court of competent criminal jurisdiction. The Appellant was not imbued with the power to nail the respondent; as it were. By so doing, the respondent’s right to fair hearing as guaranteed under the provision of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 was invaded by the Appellant. It crossed the line. He submitted with force that in the instant case and following the above decision, the administration panel having found the claimant guilty of financial embarrassment, the proper venue to establish the guilt of the claimant for any criminal offence is the court of competent jurisdiction, the defendant is not imbued with the power to nail the claimant as it did. He urged the court to so hold. Malice The presence of malice in the decision to dismiss the claimant is another ground for which the letter of dismissal, Exhibit PW4 ought to be declared null and void. The provision of Clause 6.4.2.2 (b) of the HRPPM provides thus:- In determining the disciplinary action to be taken, Line manager, Departmental Director/Outstations and Disciplinary Committee shall ensure. That the degree of severity reflects the gravity of the offence committed. That the action proposed is consistent with action taken previously by the Bank in similar situations. In this connection, Line managers and Disciplinary Committees shall seek advice from the Human Capital Welfare Division of Human Resources Department. He submitted that the dismissal of the claimant by the defendant on the set of facts investigation by the C.D.C. is NOT comparable nor is it consistent with action taken previously by the bank in similar situations. Counsel went further to draw the court attention to the similar situation as the instant case and the resolution of same by the defendant. This is captured at paragraph 4 of page 31 and paragraph 5 of page 35 of Exhibit PW6 (the report of the C.D.C.) which stated thus:- Mr. Nwachukwu stated further that Mr. Adeyemi later repaid the sum of N400,000.00 (Four Hundred Thousand Naira) Only to Mr. Mogbo, when he was arraigned before the C.D.C. for financial embarrassment because he was also indebted to individuals and other financial institution. Consequently, his appointment was terminated. (underline ours). It is therefore clear that the dismissal of the claimant by the defendant is an act propelled and actuated by malice as same is not defendable by the records of the defendant and same cannot be supported by the HRPPM. He therefore urged the court to declare the said Exhibit PW4 as null and void having been an action taken in malice and capriciously. The Court of Appeal in the case of CBN V DINNEH (2010) 17 NWLR (Part 1221) page 125 and 169, Paras C – D berating the appellant (the same defendant in this case) for failure to follow set down procedure in its condition of service in dismissing an employee thus:- An employer in adhering to the dictates of fair hearing which is all that is required of it/him must still follow the procedure set down in its regulations or condition of service in other to properly dismiss an employee against whom misconduct bordering on criminality is alleged. In summary he submitted that from whichever way we look at it, the letter of the defendant dismissing the claimant is liable to be set aside. The said dismissal was based on a criminal allegation which crime the defendant or any of her administration bodies lack the competence to try. Further, the said crime the basis of the dismissal was never made available to the claimant to allow him the opportunity to defend himself. Thirdly, the alleged crime is not a law in any written legislation and is not contained in the H.R.P.P.M. and therefore cannot be the basis of any punishment under the C.F.R.N. 1999 (as amended). Fourthly, he submitted that the letter of dismissal was capricious and actuated by malice as it imposed a punishment higher than the defendant had imposed in similar situation and over and above the punishment stipulated in the H.R.P.P.M. The claimant urged the court to hold that the letter of dismissal Exhibit PW 4 is null and void and of no effect whatsoever as it fails to comply with the laid down procedure for the termination of the claimant’s employment and also for being in contravention of the Rules of natural justice. Distinguishing Authorities cited by the Defendant’s Counsel The defendant cited in her written address, the Court of Appeal decision in EGBE V N. U. T. (2008) 5 NWLR (PT. 1081) P. 610 AT P. 628. We submit that not only is the case cited by the defendant irrelevant, and inapplicable to the facts of the instant case, it is also distinguishable. By the Supreme Court authorities cited by the claimant, it is clear that the defendant did not comply to the requirement of the law. The above authority cited by the defendant at paragraph 4.2 of its written address held thus:- The issue of fair hearing under the constitution simply implies that before any disciplinary action is taken against a person, he is first and foremost confronted with whatever allegation his accusers have against him and he is given a reasonable time to prepare for and present his defence either orally and or in a written form before his accusers, in the instant case, the query issued to the appellant showed that he was given 48 hours to present defence which he did in writing. It is evident on the record that the defendant never invited the claimant nor gave him fair hearing on any issue boarding on illegal financial transaction. Of course, they will not because we have clearly demonstrated that illegal financial transaction is not an offence known to either the statute of the bank or any law in force. Even the query of 25th March, 2013 never asked the claimant to give any explanation on any illegal financial transactions. He referred the court to Exhibit DW1 on the record. He submitted further that the counsel to the defendant, his submission at paragraph 4.7 of the written address on the decision of the Supreme Court in EZE V SPRING BANK was totally misconceived. There is nowhere in that authority that the Supreme Court arrogated the power of the trial of criminal offences to mere administrative panels. The Apex Court was only emphasizing the importance of fair hearing in the determination of right of fair hearing in every given situation. The purpose of fair hearing in employee relation is to draw a line between administrative wrong which is at the purview of the administrative panel and criminal offence which is within the exclusive jurisdiction of the court of competent jurisdiction. The DW1, a lawyer and manger in the employment of the defendant captured the essence in his testimony before this court thus:- If an infraction is committed by any staff, what the bank does is to separate the breach of process(sic) policies from crime if any is involved in the offence, the bank knows that it does not have the power to try crime. The bank distinguish crime and examine the offence if there is any breach of the procedure of its policies, then the bank will try you administratively for any breach and set aside the crime which is not part of its own process. At the risk of repetitions, he contended with force and as established by credible oral and documentary evidence before this court that the claimant was called upon to answer to an alleged allegation of financial embarrassment but the defendant dismissed the claimant on an allegation of illegal financial transaction on offence which is unknown to law and for which the claimant was never called upon to defend himself. It is also without argument that the cases of EGBE V N.U.T. (2008) 5 NWLR (Pt. 1081), and ARINZE V FBN (2004) 12 NWLR (PT. 888), EZE V SPRING BANK (2011) 48 NECQR cited by the defendant’s counsel are all irrelevant and distinguishable from this instance case. He urged the court to so hold. In respect of issue two Whether in the circumstances of this suit, the claimant is not entitled to his salaries, allowances, gratuity, terminal benefit, and damages. The claimant submitted with utmost conviction as borne out by the evidence of PW1 that the claimant has served the defendant meritoriously for over 32 years without blemish. At the time of the dismissal of the claimant, he had only 4 months to retire and had already been issued with Exhibit PW2 which is the defendant’s notification for mandatory retirement at the age of 60 years. The claimant submitted that the claimant therefore entitled to the payment of pensions, gratuities, arrears of unpaid salaries and allowances due and accrued to him. The defendant ‘s malicious, capricious and unjustifiable dismissal of the claimant from the defendant’s services is bad enough but beyond that, the defendant has withheld all the allowance, pension, salaries and salaries due and accruing to the claimant. It is without argument as borne out by the evidence before the Honourable Court that since the employment of the claimant with the defendant, the claimant has had a pension scheme with ARM pension funds administrators and as at January, 2014 the total sum accruable to the claimant under the pension scheme was about N109,256,961.53 (One Hundred and Nine Million Two Hundred and Fifty-six Thousand Nine Hundred and Sixty-one Naira Fifty-three Kobo) Only, as advised by the ARM pension administration. The claimant also contended that the retirement benefit which accrued to the claimant upon retirement is about N80,000,000.00 (Eighty Million Naira) Only. The claimant is also entitled to other benefits including arrears of salaries, allowances, as stipulated in his claim. The Court of Appeal in CBN V DINNAH (Supra) stated that in a situation where an employee is wrongly dismissed as in the instant case, the employer must pay the employee the entire sum accrued to the said employee. Per LOKULO-SODIPE JCA at Page 177 Paras D – G stated thus:- ..... in view of the findings that the employment of the respondent prior to his dismissal was one with statutory flavour and that the employment was wrongfully terminated by way of dismissal and which made the same to be null and void. In effect the respondent remained an employee of the Appellant despite his purported dismissal. This being the situation, he is by virtue of the finding that his dismissal was unlawful, null and void entitled to be reinstated into his position and also to his salary for the period of his purported dismissal. He is also entitled to remain in the accommodation he had by virtue of his employment ..... The Court of Appeal must have followed the procedure laid down by the Supreme Court in the case of CENTRAL BANK OF NIGERIA V IGWILO (2007) 14 NWLR (PART 1054) PAGE 393 PAGE 420, PARAS C – D 425 PARAS D – D thus:- Where an employee’s service is protected by statute and his employment is wrongly terminated, he would be entitled to re-instatement in his office and in addition damages representing his salaries during the period of his purported dismissal ... (Emphasis Ours) In the instant case the claimant does not seek an order for re-instatement but only his entitlement covering the period for which he was unlawfully dismissed and also the benefits that has accrued. The claimant urged the court to follow the above decisions of the Court of Appeal and also follow the principle laid down in CBN V IGWILLO (Supra) and to hold that the claimant is entitled to be paid all his entitlement from the defendant including damages for wrongful dismissal. Finally, he urged the court to uphold the case of the claimant and grant all the releifs sought. Having considered the submissions, the entire evidence at the trial and the authorities cited by counsel the issues for the court to determine are: (a) whether the employment of the claimant enjoys statutory flavour? (b) Whether the claimant is entitled to all the reliefs sought in this suit? In determining the first issue, it is necessary to consider the status of the claimant’s employment. As earlier stated in the claimant’s final written address, there are three categories of contract of employment. a. Master and Servant Relationship. b. An employment where the employee holds his employment at the pleasure of the employer. c. One that is regulated by statute. The question to answer now is whether the claimant’s employment enjoys statutory flavour as claimed by his counsel. When an employment has a statutory flavour is in the sense that its condition of service are provided for and protected by statute or regulations thereunder any person holding that office or in that employment enjoys a special status over and above an ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statutes and regulation must be fully complied with. If materially contravene any decision affecting the right or tenor of office of that person will be declare null and void in appropriate proceeding. See Bamigboye V. University of Ilorin (1999) 10NWLR (pt 622) 290 at 320 The claimant submitted that his contract of employment is governed by the defendant’s CBN Employees’ handbook and CBN Human Resources Policies and Procedures Manual (HRPPM) which are documents providing for the conditions of employment of all staff of the defendant. The staff manual was made pursuant to the provisions of the Act setting up the defendant. Therefore, there is no doubt that the employment of the claimant enjoys statutory flavour given the facts that the staff manual of the defendant tendered and marked Exhibit PW5 is made pursuant to the provisions of the Act establishing the defendant and also contains clear provisions in relation to the conditions of appointment, and removal of the claimant. See the case of CBN V Dinnah (Supra) and CBN V Ogwillo (Supra). Having concluded that the claimant’s employment enjoys statutory flavour the question to consider is whether the claimant’s appointment was lawfully terminated by the defendant. The case of the claimant is that his dismissal by the defendant is illegal and ultra vires the provisions of the defendant’s employees handbook and rules of natural justice. It is for the claimant to plead and prove the conditions of service regulating the contract of service in question. The terms of the contract of service is the bedrock of claimant’s case and the succeeds or fails upon the term thereof. In a written or documented contract of service the court will not look outside the term stipulated therein, in deciding the right and obligations of the parties therein. The provision of contract of service is binding on parties thereto. The staff manual, and the Employee’s handbook and the claimant’s letter of employment governed the employment relationship of the claimant with the defendant and the dismissal should be done in compliance with the laid down procedures in these documents. Where a statute prescribes a procedure for seeking a remedy or doing of anything or act and the language used is clear and unambiguous, that is the only procedure open to the parties concerned and any departure there from will be an exercise in futility. The claimant’s case is that the letter of dismissal of the 4th of October 2013 is null and void for being ultra vires to defendant’s Human Resources Policies and Procedures Manual and for violating the rules of natural justice. To the claimant the defendant lacks the capacity to try a criminal matter, non existence of the alleged offence in any statute, non confrontation of the claimant with allegation, imposition of higher punishment than that prescribed by regulations and malice. The claimant’s argument is that he was dismissed vide Exhibit PW4 for illegal financial transaction. According to the claimant the word “illegal” is defined in the Black’s Law Dictionary“ as forbidden by law , unlawful”. And that unlawful means “not authorised by law, illegal criminally punishable” that by the above definitions illegal financial transactions is a transaction not authorized by law. That illegal transaction being a criminal offence can only be tried by court of competent jurisdiction. That the defendant contention that the fraudulent dealings and breach of trust which characterized the illegal financial transaction which the claimant was alleged have been involved in, attracts summary dismissal in paragraph 6.3.1.2(1) of the Employees Handbook and paragraph 6.4.2.2. of the Human Resources Policies and Procedures Manual (HRPPM). The claimant counsel further argued that it is trite law that the defendant does not have the power and jurisdiction to delve into any conduct or misconduct bothering on allegation of crime. The claimant’s counsel cited the following judicial authorities, Institute of Health Ahmadu Bello University Hospital Management Board V. Jummai R.I. Anyip (2011) 12NWLR (Pt 2060) pg 1 at 17. Similarly that Section 36 of the Constitution of the Federal Republic of Nigeria (as amended) has protected the claimant from being judged by an Administrative Tribunal constituted by the defendant, particularly in a case relating to criminal allegations. That this has been given judicial recognition by court in the following cases Anakiam V UBN of Nigeria Limited (1994) 1NWLR (Part 332) 557 at 567, Shuiaibu V UBN (1995) 4NWLR (Part 388) 173 at 183-184. The claimant counsel urged the court to hold that the defendant was wrong to have found the claimant guilty of criminal offence and to have dismissed him on allegation that was never proved. It is also the claimant’s counsel contention that there is no written law that provides for the existence of the said offence in that in the defendant Employee’s Handbook at paragraph 6.3.1.2 and paragraph 6.4.2.2. of the Human Resources Policies and Procedures Manual (HRPPM) revealed that the phrase illegal transaction is not contained in the books and also not an offence known to law. That an act cannot be an offence unless the offence is defined and the penalty prescribed. The claimant’s counsel further submitted that the dismissal runs foul of the above provisions of the S. 36(8) of the Constitution of the Federal Republic of Nigeria (as amended) which states that “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”. Still on this the claimant’s counsel submitted that the defendant claimed that the Board of Directors derived the power to dismiss the claimant from this paragraph 6.4.2.2 sub paragraph 13 by unilaterally formulating the offence, illegal financial transaction and thus dismissed the claimant on that allegation. That the fact that Sub paragraph 13 of paragraph 6.4.2.2 listed number of criminal offences upon which a staff would be dismissed if found wanting that, that does not cloth the Board of Directors with legislative and judicial powers. That since this offence is unknown to law it does rendered the dismissal liable to be declared null and void. Claimant’s counsel went further to state that both Exhibits PW1 and DW1 confirmed the fact that the claimant was invited to answer on allegation of financial embarrassment and not on the allegation of illegal financial transaction upon which the dismissal was based. That one of the principle of natural justice is that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands in details and the nature of the offence and to be given adequate time and facilities for the preparation of his defense. Learned counsel submitted that the claimant did not receive any invitation to defend himself against the allegation of illegal financial transaction That the invitation the claimant received was to defend himself against the allegation of financial embarrassment and no more. That this is a violation of the constitutional right of the claimant to have dismissed him for illegal financial transaction when he was never confronted with it. The claimant counsel disagreed with the defendant’s counsel submission that the claimant having been queried on the basis of illegal financial transaction and prior to the query he was given opportunity by a letter of 10th of January, 2013 to explain himself and that without the Central Disciplinary Committee (CDC) he had been given fair hearing. To the claimant’s counsel the query of 25th March 2013 was the first step in disciplinary procedure and cannot be circumvented as it is mandatory under the provision of Human Resources Policies and Procedures Manual (HRPPM). That from the evidence before the court the claimant’s counsel said no criminal allegation was placed or read to the claimant by the CDC but allegation of financial embarrassment and engaging in business that conflicts with the bank’s interest not illegal financial transaction were read out to the claimant. The learned counsel also referred the court to the defendant’s final written address in paragraph 4.6 alleging that the claimant was also engaged in fraud and breach of trust and that there was no such evidence before the court and urged the court to discountenance it and declare the dismissal null and void. The learned counsel for the claimant also argued that the CDC recommended the immediate retirement of the claimant having found him guilty of engaging in a business that conflicts with the bank’s interest. That further more the provision of clause 6.4.2.2. of the Human Resources Policies and Procedures Manual (HRPPM) prescribes termination as the maximum punishment for the offences allegedly committed by the claimant. That three committees reviewed the recommendation of the CDC and at the end of the day the defendant issued Exhibit PW4 which is the letter of dismissal. To the claimant counsel there is presence of malice in the decision of the defendant to dismiss the claimant and the dismissal letter be declared null and void. In that it is not comparable nor is it consistent with the action taken previously by the bank in a similar situation. Referring the court to Exhibit PW6 the report of the CDC on the decision taken by the defendant in respect of Mr. Adeyemi On this issue the claimant counsel further said that the PW4 fails to comply with the laid down procedure and contravenes the rules of natural justice. Finally, the claimant counsel said all the authorities sighted by the defendant counsel are irrelevant and inapplicable to the claimant’s case. The defendant on his part contended that the dismissal of the claimant was done in accordance with the employee’s handbook and the rules of natural justice. That the claimant’s business was illegal and defendant does not need to specify the law that rendered the financial transaction of the claimant illegal because the defendant is not a court of law that offences in the condition of service which can attract dismissal is not exhaustive and the defendant can include illegal financial transaction or any other offences he deemed fit to list. The defendant further contended that the claimant also engaged in fraud and breach of trust which does not need any proceeding of court or tribunal before either can determine such offences. He further submitted that the claimant, having been issued query and found guilty by the CDC of the charge which contravenes Chapter 6.4.2.2.(2 )ix (financial embarrassment) xi engaging in business that conflicts with the bank’s interest of the Human Recourses Policies and Procedures Manual which constitute offences that could lead to termination of appointment . That the allegation of misconduct which bordered on criminality as levied against the claimant need not be prosecuted in court before the claimant can summarily be dismissed. Having stated in brief the submissions of both counsels to the parties in this case, the main grouse of the claimant is that he was denied his right to fair hearing by the defendant on the issue of his alleged involvement in illegal financial transaction. That his dismissal by the Board of Directors was on the ground terms illegal financial transaction which was not contained in the letter of invitation or the allegation he defended before the Central Disciplinary Committee. The right to fair hearing is a fundamental right conferred on every citizen in Nigeria as entrenched in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Any breach of that right vitiates the proceeding including the decisions based on it and renders both the proceedings and the decision null and void. Where an employee sought to be removed in a contract with a statutory flavor and the procedure for appointment, employment and discipline including dismissal are spelt out, such contract must be terminated in the way and manner prescribed by statute. Any other manner of termination which is in constituent with the relevant statute is null and void and of no effect. In the present case the claimant seeks for court’s declaration that his dismissal was illegal null and void and of no effect whatsoever and urged the court to set aside the letter of dismissal dated 4th October 2013 . The law is that a public officer against whom an allegation of gross misconduct is laid cannot be removed without being heard. In this instant case, there was an investigation panel the Central Disciplinary Committee (CDC) which investigated the claimant on alleged financial embarrassment and engaging in a business that conflict with the bank’s interest and found him guilty of both offences. The Central Disciplinary Committee recommended his immediate retirement from the employment of the defendant in accordance with the provision of Clause 6.4.2.2(2) of the Human Resources Policies and Procedures Manual (HRPPM), which is the punishment specified in the handbook for such an offence While his dismissal by the Board of Director was on the ground termed illegal financial transaction which was not the allegation defended by the claimant before the Central Disciplinary Committee, also not an offence known under Clause 6.4.2.2(2) of the HRPPM and Clause 6.3.1.2. of Employee’s Handbook. While not disputing the argument of the counsel that the list of misconduct is inexhaustive it must be noted that offences and punishment ought to have been listed and prescribed prior to the Commission of the offence. The defendant have the right to increase the list of offences but to do so clause 6.4.22 (2) must be amended. Both the Human Resources Policies and Procedures Manual and The Employee’s Handbook specified the maximum punishment as termination for financial embarrassment which was complied with by the CDC. It is trite that any employer can dismiss an employee on proven cases of misconduct but such dismissal must be done in accordance with the law or rules that governed the employment. In this case the rules and regulations governing the employment relationship between the claimant and the defendant are the Human Resources Policies and Procedures Manual (HRPPM) and the Employee’s Handbook. The Supreme Court in Arinze V. FBN Ltd. (2004)12NWLR Pt 888 pg. 663 held that in statutory employment as well as in private employment the employer can dismiss an employee where the accusation against such employee is for gross misconduct amounting to crime and in such a case it is not necessary or required under S 36(1) of 1999 Constitution that an employee must first be tried in a court of law. The counsel to the defendant is therefore correct in his submission that the prosecution of an employee before the law court is not sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct. In other words it is not in every allegation of crime against any employee that must be proved in any regular court. An employee’s wrong doing must be specific and he is entitled to a formal notice of such wrong doing and the hearing on that specific act It is a settled law that parties are bound by the terms and conditions of the contract of employment they voluntarily entered into. From the foregoing it is clear that the defendant breached his own rules and regulations and the rules of natural justice and where such breach occurred the court is left with no other option than to declare the dismissal null and void and of no effect. The letter dated 4th of October 2013, dismissing the claimant from the employment of the defendant is hereby set aside. Since the court has found that the dismissal of the claimant was unlawful there is no question of damages for unlawful dismissal, the court therefore declines to award N100,000,000.00 (one hundred million Naira) only as general damages. The claimant who was a permanent staff of the defendant until his purported dismissal is therefore entitled to all the payment of his outstanding salaries, allowances and benefits accruable to him up to 4th October 2013 as contained in his statement of claims. It is also on record that the defendant did not challenge the figures contained in his reliefs 5,6 and 7. For the reasons given above, the claimant’s claims succeed in part and for avoidance of doubt the court makes no award in respect of reliefs 8, 9 and 10 Only. The court orders that the claimant claim be settled within 30 days of this Judgment. Judgment is hereby entered accordingly. _________________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE