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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 9TH FEBRUARY, 2015 Suit No. NICN/ABJ/80/2013 BETWEEN MR. NOAH O. LAWAL CLAIMANT AND ECOBANK NIGERIA PLC DEFENDANTS REPRESENTATION Amobi Nzelu Esq for the Claimant. Olayinka I. Arasi Esq for the Defendant/Counter-Claimant. JUDGMENT By amended complaint dated 20th September, 2013 and filed on the same date, the claimant claims are for:- 1. A DECLARATION that the purported suspension and subsequent dismissal of the claimant via a letter dated the 10th day of January, 2013 by the defendant is unlawful, illegal, unconstitutional and does not conform to natural justice, equity and good conscience. 2. A DECLARATION that the purported dismissal of the claimant by the defendant for an unknown law called “Mystery Shopping/Parallel Banking” is unlawful, illegal, unconstitutional and a violation of the claimant’s constitutional right. 3. A DECLARATION that the claimant cannot be purported to have been dismissed from the employment of the defendant without due regard to the laid down procedure governing the contract of employment between the claimant and the defendant. 4. A DECLARATION that the claimant is entitled to all his salaries, promotions and benefits attached to his office as a staff of the defendant. 5. AN ORDER of this Honourable Court quashing the dismissal letter dated the 10th day of January, 2013 as being illegal, unlawful, and a breach of the laid down procedure/rules/contract of employment. 6. AN ORDER of this Honourable Court directing the immediate release of his November 2012 salary and “13 Month Salary” paid into his account on the 23rd day of November, 2012 which the defendant has denied him access to. 7. AN ORDER of this Honourable Court directing the payment of the salaries, benefits and other allowances accruing to the claimant from the date of the purported suspension and later unlawful dismissal from the employment of the defendant till the determination of the case and thereafter. 8. AN ORDER of this Honourable Court directing the re-instatement of the claimant in the service of the defendant and the placements of the officer at par with his mates, still in the employment. 9. The sum of N50 Million Naira as general damages for the unlawful dismissal of the claimant. The complaint was accompanied by claimant’s statement of facts, witness statement on Oath, list of witness and list of documents to be relied upon at the trial. The defendant entered a Memorandum of conditional appearance dated and filed on 21st March, 2013. Thereafter, the defendant filed its statement of defence, and counter-claim, witness statement on Oath, and other accompanying processes. The matter went on trial, the claimant gave evidence and tendered Exhibits to support his claims. Mr. Olufemi Abati-Shobolu testified for the defendant. At the conclusion of trial parties filed and exchange their final briefs of argument. On the 14th of October, 2014 parties adopted their addresses. The defendant raised three issues for the determination of the court to wit:- 1. Whether the suspension and subsequent dismissed of the claimant are valid and effective? 2. Whether the claimant is entitled to the releifs sought in the statement of facts? 3. Whether the defendant is entitled to reliefs sought in the counter-claim. On issue one Whether the suspension and subsequent dismissed of the claimant are valid and effective? On this issue the defendant submitted that it is settled law that where an employer and employee enter into a contract of employment, both parties are bound by the terms and conditions of that contract. That the parties’ obligations, rights and liabilities are defined by such contract. For all intents and purposes, it is the contract of employment that governs the relationship between the employer and the employee. The defendant commended the court the following authorities - Layade V Panalpina World Trans. Nig. Ltd (1996) 6 NWLR (Pt. 456) 544 at 555, Olaniyan & Ors V UNILAG & Anor (1985) 2 NWLR (Pt. 9) 599 at 669, and W. A. E. C. V Oshionebo (2007) All FWLR (Pt. 370) 1501 at 1512 paras E – F. In Olaniyan & Ors V UNILAG & Anor (1985) 2 NWLR (Pt. 9) 599 at 669 paras F – G Karibi-Whyte, J. S. C. held that:- Contracts of employment like all other contracts their creation and termination are both subject to the general principles governing the law of contract. Hence, where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated. The defendant also submitted that in the instant case, there is no dispute that a contract of employment was in existence between both parties. This employment relationship was regulated by Exhibit PW1 which contains the defendant’s offer of employment to the claimant as well as Exhibit DW3 being the defendant’s Rule of Business Ethics and Exhibit DW4 being the defendant’s Human Resources Pilicies. Indeed, Exhibit PW1 (the letter of employment) clearly provides in paragraph ix thereof, that the claimant shall be bound by all existing and future rule, regulations, policies and procedures of the Company in force from time to time ….. You are therefore required to familiarize yourself with same. Among such rules, regulations, policies and procedures that Exhibit PW1 envisages are Exhibit DW3 (Rule of Business Ethics) and Exhibit DW4 (Ecobank’s Human Resources Policies) which specifically provides for grounds upon which an employee may be suspended, terminated or dismissed. In this regard, EHRP 1904 under Exhibit DW4 provides for the defendant’s entitlement to dismiss an employee as follows:- Principle Proper professional conduct at all times is demanded from all ECOBANK employees. ECOBANK reserves the right to dismiss employee(s) on grounds of misconduct. Policy Statement ECOBANK may summarily dismiss, without any entitlement, employees who commit any of the following offences:- Major conflicts of interest All benefits cease on effective date of dismissal. (Underlining ours) From Exhibits PW3 and PW4 (the letters of suspension and dismissal), it is quite clear that the claimant’s suspension and eventual dismissal was occasioned by the claimant’s involvement in parallel banking activities which, according to the testimony of DW1 at paragraph 14 of his statement on Oath, amounts to a conflict of interest on the part of the claimant and has grave consequences on the defendant’s commercial interests. That in the light of the above, it has been sufficiently established before this Honourable Court that the defendant is entitled under the employment contract to discipline the claimant through suspension and/or dismissal on grounds of misconduct including conflicts of interest. Thus, the material question before this Honourable Court is whether, upon consideration of the relevant evidence adduced, there were sufficient ground(s) to justify the suspension and subsequent dismissal of the claimant. The defendant said it is common ground between both parties that parallel banking involves the diversion of a Bank’s customers to other financial institutions by staff of such Bank. In most cases, the diversion is done in favour of a financial institution in which the staff has a pecuniary or other filial interest. The explanation of this unconscionable practice is explicitly stated at paragraphs 8 and 14 of DW1’s statement on Oath and expressly confirmed by the claimant under cross-examination. That in this regard, Exhibit DW1 (the video recording) graphically demonstrates the claimant’s persistent and deliberate efforts to persuade a customer (the mystery shopper) or the defendant to patronize a Microfinance Bank which is being run by the claimant’s friend (or colleague). In order to prevail upon the mystery shopper to patronize his friend’s Microfinance Bank, the claimant stated inter alia in Exhibit DW1 that:- The other option is for me to take it upon myself to fix it somewhere for you. I have a colleague that is doing a Microfinance Bank and he would give you a better interest …… I can take charge of that for you ……. So I think the second option is more appropriate …. I can give you a post-dated cheque for that amount (the sun N400,000.00). The defendant submitted that the claimant demonstrated his pecuniary interest in the Microfinance Bank by offering the mystery shopper a post-dated cheque to serve as a personal guaranty of the investment to be made in the Microfinance Bank. Indeed, Exhibit DW1 is conclusive proof of the claimant’s engagement in parallel banking activities which constitutes a major conflict on interest capable of inflicting grievous harm upon the defendant’s commercial interests. The defendant added that the claimant demonstrated a total lack of remorse and repentance before this Honourable Court when, under cross-examination he stated inter alia that:- It is not parallel banking for a staff to divert a customer to another bank. It is not parallel banking for a staff to advise a customer of Ecobank to remove his money and place in another Bank. For the avoidance of doubt, paragraph 5.0 of the defendant’s rules of business ethics (Exhibit DW3), provides that employees ‘must avoid circumstances in which their personal interests conflict, or may appear to conflict with the interests of Ecobank or its customers.’ Apparently, the claimant acted in blatant disregard for this express and mandatory directives. The defendant said that the foregoing establishes that there is sufficient evidence before this Honourable Court to demonstrate that the claimant unrepentantly embarked on parallel banking activities which are detrimental to the defendant’s interest and consequently amount to major conflicts of interest under the defendant’s guiding policies. In such circumstances the court it cannot be disputed that the defendant was eminently entitled to take appropriate disciplinary measures (indefinite suspension and dismissal) against the claimant. In Udemah V Nigerian Coal Corporation (1991) 3 NWLR (Pt. 180) 477 at 486 Paras F – G, Uwaifo, JCA (as he then was) held that:- The right to suspend an employee is always available to an employer in order to effect proper investigation of allegations or during the process of a disciplinary action. If there are regulations governing disciplinary action and suspension in the meantime, they should be complied with. Even if there are no regulations, for suspension, that cannot affect the discretion of the employer to suspend a particular employee on a particular occasion. This is so even though the suspension of an employee from duty may invariably reflect adversely on him in the assessment of the public or may appear to amount to pointing an accusing finger. But this is one of the known incidents of employment. (Underlining ours). By virtue of the above erudite reasoning, the defendant was absolutely entitled to suspend the claimant inn order to carry out a proper investigation of the allegations against the claimant and reach a conclusive decision thereon. With regard to the eventual dismissal of the claimant, it should be re-emphasised that under Exhibit DW4, the defendant reserves the right to dismiss an employee on grounds of misconduct. In this regard, Iguh, JSC held in U.B.N Ltd V Ogboh (1995) 2 NWLR (Pt. 380) 647 at 669 Para G that:- No doubt, where 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. (Underlining ours). Similarly, in Wilbros Nig. Ltd & Anor V Onwume Macaulay (2009) LPELR – 8507 (CA), it was held that:- It is settled law that a master has a right to summarily dismiss a servant where the servant has indulged in conduct inconsistent with due and faithful discharged of the duties for which he was engaged. (Underlining ours). In the instant case, the evidence before the court clearly confirm that the claimant has engaged in parallel banking activities by referring customer(s) of the defendant to a Microfinance Bank in which the claimant and/or his friend obviously possess a pecuniary and/or other form of interest. The claimant has also expressly testified before the court that there is nothing wrong or improper in advising or persuading a customer of his employer (the defendant) to withdraw money from the defendant and deposit same in another Bank. In the face of such overwhelming evidence, how can there be any iota of confidence between the defendant and claimant under an employer/employee relationship? How can the defendant be expected to retain the services of such a disloyal and dangerous employee? The defendant argued that by virtue of the defendant’s policy under Exhibit DW4 and the above compelling reasoning of the Supreme Court, it is respectfully submitted that the Defendant was absolutely justified and entitled to dismiss the claimant without any notice, pay or other benefit whatsoever. This entitlement of the defendant has also been recognized in Boston Deep Sea Fishing Co. V Ansell (1888) 39 Ch. D 339; Ante V Univeristy of Calabar (2001) 3 NWLR (Pt. 700) 239 at 258 – 259; Professor Olatunbosun V N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25 at 41; Olaniyan V University of Lagos (Supra). The defendant therefore urged the court to resolve the issue in favour of the defendant and affirm the propriety. Legality and validity of the suspension and subsequent dismissal of the claimant. Issue Two Whether the claimant is entitled to the reliefs sought in the statement of fact? On this the defendant’s submitted that the submission effectively demonstrates the justification, legality and validity of the suspension and eventual dismissal of the claimant. This validity and legality of the suspension and dismissal presupposes that the claimant is not entitled to any of the reliefs claimed under the statement of facts. That in order to properly demonstrate the claimant’s failure to substantiate any of the claims made under the statement of facts, the defendant shall herein examine each reliefs in seriatim. A DECLARATION that the purported suspension and subsequent dismissal of the claimant via a letter dated the 10th day of January, 2013 by the defendant is unlawful, illegal, unconstitutional and dose not conform to natural justice, equity and good conscience. This is the claimant’s first and primary relief as every other relief is premised on the success of this relief. The evidence adduced before the court coupled with the defendant’s submissions under issue one has succinctly demonstrated that the claimant engaged in acts of parallel banking and amounting to irreconcilable conflict of interest against the defendant. This resulted in the initiation of disciplinary proceedings against the claimant thereby necessitating the indefinite suspension of the claimant pending the conclusion of the disciplinary proceedings. At the conclusion of the proceedings, the claimant was dismissed from the service of the defendant in line with the relevant policies of the defendant. Therefore, there is no evidential or legal basis to designate the suspension and dismissal of the claimant as unlawful, illegal or unconstitutional. There is also no legal or evidential basis for the allegation that the suspension and dismissal of the claimant was carried out in breach of the rules of natural justice as the evidence clearly disclose that the claimant was afforded ample opportunity to react to the allegations in the course of the disciplinary proceedings despite the overwhelming nature of the evidence against him. On the whole, the court is urged to reach a finding that the claimant is not entitled to this declaration. A DACLARATION that the purported dismissal of the claimant by the defendant for an unknown law called “Mystery Shopping/Parallel Banking” is unlawful, illegal, unconstitutional and a violation of the claimant’s constitutional right. The defendant submitted that this reliefs is founded on certain factual misrepresentations which clearly contradict the evidence adduced at the trial, For instance, the relief indicates that the concept of “mystery shopping/parallel banking” is a ‘law’. However, this strange indication is not supported by any evidence as the evidence adduced by both parties clearly explained the concept of mystery shopping and parallel banking without any suggestion that either of those concepts constitute a law. Indeed, it is also fallacious for the claimant to suggest that those concepts are unknown because the claimant, under cross-examination, demonstrated considerable understanding of the term ‘parallel banking’ and also confirmed his knowledge of the routine inspection exercises usually carried out through the engagement of a mystery shopper as disclosed in Exhibit DW1. As stated earlier, the defendant’s submissions under issue one demonstrated the legality of the claimant’s suspension and dismissal and there is no evidence that any constitutional right of the claimant has, in any way, been violated by the defendant. The court is urged to dismiss this relief as absolutely frivolous and unfounded. A DECLARATION that the claimant cannot be purported to have been dismissed from the employment of the defendant without due regard to the laid procedure governing the contract of employment between the claimant and the defendant. With regard to this claim, the claimant has woefully failed in his pleadings to direct the court to any laid procedure governing the contract of employment which has not been complied with by the defendant. Indeed, the evidence before the court discloses that disciplinary proceedings were initiated against the claimant in order to investigate the claimant’s involvement in parallel banking activities and these proceedings culminated in the suspension and eventual dismissal of the claimant. In Imonikhe V Unity Bank (2011) SC (Pt. 1) 104 at 135 – 136, Rhodes Vivour, JSC held inter alia that:- 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 …. The Appellant answered the queries on the above that the Respondent did not find the answers satisfactory and so he was dismissed…. By the conditions of service of any organisation properly so called an employer ought to be able to discipline erring employees and that was precisely what the Respondent did. The above reasoning is applicable to binding effect in the instant case as the evidence (paragraphs 15 – 20 of the claimant’s statement on Oath) reveals that the defendant duly issued a query to the claimant and received his response thereto before inviting him to appear before a Disciplinary Committee to explain his involvement in acts of parallel banking. Indeed, the subsequent dismissal was occasioned by the claimant’s unsatisfactory responses to the allegations in the course of the disciplinary hearing. The court is therefore urged to dismiss this claim for being unmeritorious. A DACLARATION that the claimant is entitled to all his salaries, promotions and benefits attached to his office as a staff of the defendant. This nebulous claim is absolutely devoid of evidential support. Indeed, the claimant confirmed under cross-examination that promotion of staff is entirely at the discretion of the defendant based on the performance of the staff over a given period. It is therefore absurb to seek a declaration of court for an entitlement to promotion especially where the claimant has not been vested with a right to promotion. More importantly, the claimant having been dismissed from the service of the defendant, cannot be entitled to any form of salary or benefit from the defendant. Indeed, the defendant’s policy on dismissal (EHRP 1904 under Exhibit DW4) categorically states that ‘all benefits cease on effective date of dismissal. The court is urged to dismiss this claim in its entirety. AN ORDER of this Honourable Court quashing the dismissal letter dated the 10th day of January, 2013 as being illegal, unlawful and a breach of the laid down procedure/rules/contract of employment. Your lordship, this relief is merely a rehash of the claimant’s first and primary relief. The defendant therefore relies on the foregoing submissions in urging your lordship to uphold the claimant’s dismissal and reject the instant relief. AN ORDER of this Honourable Court directing the immediate release of his November 2012 salary and “13th month salary” paid into his account on the 23rd November, 2012 which the defendant has denied him access. Under Section 131(1) of the Evidence Act 2011, it is settled law that he who asserts must prove. This fundamental principle of evidence has been judicially applied in a plethora of cases including Agusiobo V Okagbue (2001) 15 NWLR (Pt. 737) 502 at 520 Paras. B – C. Therefore, the claimant being the party desirous of obtaining a favourable Judgment of the court, has a burden to prove his claim to the reasonable satisfaction of the court. In the instant case, the claimant has been unable to lead any iota of evidence to show that at the time of his suspension on 23rd November, 2012, he was entitled to a 13th month salary. In the absence of such evidence, this relief ought to fail and the court is urged to so hold. In any event, the claimant’s evidence (paragraph 21 of the claimant’s statement on Oath) confirms that part of the disciplinary actions taken by the defendant on 23rd November, 2012 was the immediate freezing of the claimant’s account. In this regard, the claimant also confirmed that he was indebted to the defendant for a sum in excess of N3.7 Million and as such, it was only logical that the claimant’s account be frozen. It is therefore clear that the claimant’s evidence effectively confirms the claimant’s disentitlement to this relief and the court is urged to so hold. AN ORDER of this Honourable Court directing the payment of the salaries, benefits and other allowances accruing to the claimant from the date of the purported suspension and later unlawful dismissal from the employment of the defendant till the determination of the case and thereafter. Again this relief ought to fail on account of the defendant’s submission regarding the validity and justification for the suspension and eventual dismissal of the claimant. In any event, the law is trite and has been emphasised in Udembah V Nigerian Coal Corporation (1991) 3 NWLR (Pt. 180) 477 at 486 that an employer is entitled to suspend an employee pending the outcome of an investigation. In the instant case, the defendant has sufficiently established the factual and legal justification for the suspension of the claimant and as such, the claimant cannot be entitle to any salary or benefit during the period of suspension. The law is that during suspension, the employment of the claimant ceased to have effect temporarily along with his entitlements, benefits, privileges and other paraphernalia attached to the said employment until the conclusion of the investigation. Furthermore, the defendant’s policy on dismissal (EHRP 1904 under Exhibit DW4) categorically states that ‘all benefits cease on effective date of dismissal. This provision clearly confirms that there is no contractual or legal justification for the claimant’s bizarre claim for salaries, benefits and other allowances even after his dismissal from the defendant’s employment. Indeed, it is trite that salaries and other benefits accrue in consideration for work done and claimant has not disclosed any service rendered to the defendant which warrants such bogus claim for salaries and other allowances, the court is therefore urged to dismiss this claim for being absolutely frivolous and extortive in nature. AN ORDER of this Honourable Court directing the re-instatement of the claimant in the service of the defendant and the placements of the Officer at par with his mates, still in the employment. Your lordship, this absurd relief is clearly without any factual and legal justification. In addition to the already-made point that the dismissal of the defendant was legally valid, the law is settled that a willing employee cannot be imposed on an unwilling employer and as such, the court would not make an order of specific performance in respect of a contract of employment. This principle was admirably stated in Ujam V I.M.T. (2007) 2 NWLR (Pt. 1019) 470 at 489 where Galadima, JCA (as he then was) held that:- The court cannot compel the employer to continue to keep an employee it does not want. On the other hand, no employer could prevent an employee from resigning from his employment to seek elsewhere for “greener pastures”. Where termination is wrongful, the servant’s remedy lies in a claim for damages. (Underlining ours). In the same vein, the Supreme Court held in Olarewaju V Afribank (Nig) Plc (2001) 13 NWLR (Pt. 731) 691 at 714 that:- The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none ……. What this means is this. In this class of cases an officer’s appointment can be lawfully terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly, an officer in this class can lawfully be dismissed without observing the principles of justice. Further in Texaco Nigeria Plc V Alfred G. Adegbite Kehinde (2001) 6 NWLR (Pt. 708) 224 at 228 – 22, Onnoghen J.C.A. stated that whether the dismissal is lawful or unlawful, in a purely master and servant situation it has brought the relationship to an end. The relationship was brought to an end, and too, the court cannot force a willing servant on an unwilling master. (Underlining ours). In the instant case, the evidence before your lordship has shown that the claimant lacks the basic attribute of loyalty which every employer requires and the defendant has demonstrated its unwillingness to persist with the claimant by issuing a letter of dismissal. In such circumstances, the court ought to abide by the above binding authorities in dismissing the instant claim for re-instatement. The sum of 50 Million Naira as General Damages for the unlawful dismissal of the claimant. Again, this claim presupposes that the claimant’s dismissal is unlawful without any legal or factual support. However, the evidence before the court coupled with the defendant’s submissions demonstrated the validity and sustainability of the claimant’s dismissal. As a general principle in law in an action for wrongful dismissal the normal measure of damages is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it.. (Underlining ours). Similarly, the Court of Appeal held inter alia in Barau V Cubitts (1990) 5 NWLR (Pt. 152) 630 at 646 – 647 that it is trite law that general damages cannot be awarded in a breach of contract action as general damages belong to the realm of torts’. Therefore, the court is urged to dismiss the instant claim for general damages. AN ORDER of this Honourable Court directing the payment of the salaries, benefits and other allowances accruing to the claimant from the date of dismissal till the retirement age of 60 years. This relief (claimed as an alternative) is also flawed by the absence of any evidence to substantiate the inherent assumptions therein. The claimant failed to lead any form of evidence to support the assumption that there is a stipulated retirement age of 60 years under his erstwhile contract of employment with the defendant. Rather, the evidence of the claimant under cross-examination confirmed that there was no guarantee whatsoever under the contract of employment that the claimant would remain in the service of the defendant until he attains the age of 60 years. In other words, the evidence before the court negates the possibility of the instant relief sought by the claimant. Furthermore, it has been stated above the defendant’s policy on dismissal as contained in Exhibit DW4 (Particularly EHRP 1904) provides that ‘all benefits cease on effective date of dismissal’. Thus, the claimant cannot be entitled to any salary, benefit or other allowances after the date of dismissal and the court is urged to so hold. The sum of N10 Million as cost of this suit. On the strength of the foregoing submissions, it is clear that the claimant is not entitled to any of the principal releifs sought and as such, the claimant cannot be entitled to an award of cost and the court is urged to so hold. Issue Three Whether the defendant is entitled to the releifs sought in the counter-claim. As stated earlier, the defendant field a counter-claim along with the statement of defence wherein the following claims were made against the claimant/defendant to the counter-claim. i. The sum of N1,000,000.00 (One Million Naira) Only being the legal costs and ancillary expenses incurred by the counter-claimant in defending this frivolous action of the claimant. ii. The sum N3,750,000.00 (Three Million Seven Hundred and Fifty Thousand Naira) Only being the outstanding debt of the claimant due to the Employee Credit Facility. iii. The interest on the sum of N3,750,000.00 (Three Million Seven Hundred and Fifty Thousand Naira) at the rate of 12 percent per annum from the date of approval of the loan being 17th July, 2012 to the date of payment thereof. Under this issue, the defendant shall demonstrate its entitlement to each of these reliefs by directing the court to the relevant evidence adduced in support thereof. The sum of N3,750,000.00 (Three Million Seven Hundred and Fifty Thousand Naira) being the outstanding debt of the defendant due to the Employee Credit Facility. The defendant as counter-claimant pleaded (paragraph 2 and 3 of the counter-claim) and adduced evidence (paragraphs 43 and 44 of DW1’s statement on Oath) to show the claimant’s indebtedness to the defendant for the principal sum of N3,750,000.00. This debt arose from a loan granted to the claimant under the defendant’s employee credit facility arrangement. Indeed, Exhibits DW5 and DW6 constitute documentary evidence of this loan and thereby serve as evidential confirmation of the defendant’s claim. Furthermore, the claimant, as defendant to the counter-claim, confirmed under cross-examination that this total liability to the defendant was around N3.7 Million. In this regard, Section 123 of the Evidence Act 2011 provides inrer alia that facts which have been admitted require no further proof. This principle of evidence was stated and applied by the Supreme Court in Asafa Foods Factory V Alraine (Nig) Ltd (2002) 12 NWLR (Pt. 781) 353 at 370 – 371 Paras H – B. In the light of the overwhelming evidence in favour of this relief, it is submitted that the defendant, as counter-claimant, is entitled to the grant of the instant relief. The interest on the sum of N3,750,000 (Three Million Seven Hundred and Fifty Thousand Naira) at the rate of 12 percent per annum from the date of approval of the loan being 17th July, 2012 to the date of repayment thereof. In Texaco Overseas (Nig) Unltd V Pedmar (Nig) (2002) 12 NWLR (Pt. 785) 526 at 547 Paras E –H, the Supreme Court per Ejiwunmi JSC held that:- Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead fact which shows such an entitlement in the statement of claim …. Adjudication on the plaintiff’s right to interest in such a case is, like on any other issue in the case, based on the evidence placed before the court. The evidence called at the trial in such a case will also establish the proper rate of interest and the date from which it should begin to run. In the instant case, Exhibit DW6 (the Employee Credit Facility Agreement) expressly stipulates an interest rate of 12% per annum and the claimant, under cross-examination, categorically confirmed the applicability of this interest rate of 12%. In the light of the trite contractual principle that parties are bound by their contractual obligations, the court is urged to grant the instant relief which is simply a product of the parties’ express agreement. The sum of N1,000,000.00 (One Million Naira Only) being the legal costs and ancillary expenses incurred by the counter-claimant in defending this frivolous action of the claimant. In the arguments made under the main suit, the defendant demonstrated the absolute frivolity of the releifs sought by the claimant thereunder. Nevertheless, the defendant was constrained to secure appropriate legal representation in defence to the claimant’s claims. It is therefore necessary to seek re-imbursement for the defendant to off-set expenses incurred in securing legal representation in the claimant’s frivolous suit and other ancillary expenses incurred in respect of the said suit. In Chijioke V Soetan (2006) 10 NWLR (Pt. 990) 179 at 217 Paras F – A, the court held that:- The emphasis here is the restitution of the party that has succeeded as to the cost he incurred in the litigation, either for prosecuting his claim or defending his action ….. factors the trial court should consider in awarding costs include:- a. The summons fees paid; b. The duration of the case; c. The number of witness called by the party in victory; d. The vexatious or frivolous nature of the action or defence of the party failed in the litigation; e. The cost of legal representative; f. The monetary value at the time of incurring the expenses; and g. The value and purchasing power of the currency of the award at the time of the award. In the instant case, the defendant, as counter-claimant, has summed up its legal and ancillary expenses at paragraphs 49 and 50 of DW1’s statement on Oath to amount to N1,000,000.00. The court is urged by virtue of the above judicial pronouncement, to award the said sum in favour of the defendant/counter-claimant as same is reasonable in the circumstances of this case. In the final analysis, the court is urged to reach a finding that the defendant, as counter-claimant, is entitled to the entire reliefs sought in the counter-claimant and same sought to be granted. In conclusion the foregoing paragraphs, the defendant has demonstrated that the evidence before this Honourable Court absolutely negates the claimant’s entitlement to the reliefs sought herein. Indeed, the evidence confirm that the suspension and eventual dismissal of the claimant was totally warranted and legally justified by the claimant’s engagement in acts of parallel banking which amount to major conflict of interest the defendant’s operative policy. Furthermore, the submissions under issue three succinctly establish the defendant’s (as counter-claimant) entitlement to the entire reliefs sought in the counter-claim. On the whole, the court is urged to dismiss the claimant’s suit in its entirety and grant all the reliefs sought in the counter-claim. After appreciation of facts and circumstances of this matter, the claimant formulates two issues for determination to wit:- 1. Whether the claimant is not entitled to the reliefs sought in the statement of facts in view of the facts and circumstances of this case? 2. Whether the defendant is entitled to the reliefs sought in the counter-claim? On issue 1 Whether the claimant is not entitled to the reliefs sought in the statement of facts in view of the facts and circumstances of this case? The learned counsel to the claimant submitted that upon a synoptic appraisal of the facts and circumstances of this case as well as the evidence adduced before this Honourable Court, the claimant has made out case to be entitled to all the reliefs sought in his statement of facts. In civil cases, Judgment is purely on balance of probability. See the cases of U.B.N. PLC V SCPOK (NIG) LTD (1998) 12 NWLR (PT. 578) PAGE 439 AT 445 RATIO 1, wherein the Court of Appeal held that:- In a civil matter, the onus is on the Plaintiff as laid down in Sections 135, 136 and 137 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 to establish his case by preponderance of evidence of probability. The Plaintiff must succeed of the strength of his own case and not the weakness of the defendant’s case. See also the case of BRAIMAH V ABASI (1998) 13 NWLR (PART 581) PAGE 167 AT 172 RATIO 7 wherein the Supreme Court held that:- Civil cases are decided on a preponderance of evidence; the onus of adducing further evidence is on the party who would fail if such evidence were not presented…. The case of the claimant will rise and fall on its own merit and not on the weakness of the defendant’s case. On this propositions, see the case of U.B.N. PLC V SCPOK (NIG) LTD (Supra) RATIO 1 wherein the Court of Appeal held that:- ……. The Plaintiff must succeed of the strength of his own case and not the weakness of the defendants’ case. The claimant gave evidence in this matter personally and adopted his witness statements on Oath. He equally tendered some documents in proof of his case against the defendant. In the course of cross examination DW1 admitted the following facts:- a. The DW1 admitted the non-existence of any offence known as “MYSTERY SHOPPING” contained in the “ECOBANK RULES OF BUSINESS ETHICS” or contained in the “ECOBANK HUMAN RESOURCES POLICIES”. b. The DW1 equally admitted that he was not a member of the Disciplinary Panel and was not aware of how they came about their decision against the defendant. c. The DW1 equally admitted that a person under suspension could still be a staff and as such entitled to his salaries and other benefits so long as the investigation being carried on is not on the issue of theft or fraud. d. The DW1 admitted to the fact that he was not the person that carried out the video investigation, that it was one Mr. Sonusi Oludayo Iyinope of Learning Solutions Limited. e. The DW1 also admitted that he was not familiar with the details of the video that was sought to be tendered through him. The testimonies of the DW1 who was not part of the team that investigated the claimant and who had no knowledge whatsoever of the content of the video recording admitted in the course of hearing can best be described as hearsay which have no probative value in law. It is trite that hearsay evidence is not admissible in law. Claimant referred the court to Sections 37 & 38 of the Evidence Act 2011. See also the case of EJIOFOR V THE STATE (2001) NWLR (PART 718). In JAMES V NIGERIAN AIR FORCE (2000) 13 NWLR (PR. 684) PG. 406 @ 422 PARAS. C – D, the court held that:- Hearsay is no evidence upon which court can arrive at conclusion. Claimant referred the court to discountenance the evidence of the DW1 in relation to the investigation of the Disciplinary Committee of the defendant as well as the video recordings admitted in evidence. From the state of evidence, the pleadings placed on the imaginary scale, it is clear that the claimant has proved his case on balance of probability and we urge this Honourable Court to so hold and sign Judgment for the claimant. On the validity of the claimant’s suspension and subsequent dismissal It is the claimant’s submission that the suspension and subsequent dismissal of the claimant by the defendant is unlawful, null and void. There is no doubt that the relationship between the claimant and the defendant is in the nature of contract of employment, and as a general rule, parties to a contract are bound by the terms and conditions of such contract. See the case of LADIPO V CHEVRON (NIG) LTD (2005) 1 NWLR (PART 907) PARAGRAPH 3, it was held that:- What parties to a contract of employment had agreed upon as their terms and had been reduced wholly into writing must be given necessary effect …… A look at Exhibit PW1 which is the defendant’s offer of employment letter to the claimant, the Rules of business ethics of the defendant, Exhibit DW3 as well as the defendant’s human resources policies, Exhibit DW4 which regulates the contractual relationship between the claimant and the defendant clearly shows that in non of these documents were parallel banking and mystery shopping mentioned as a ground upon which the claimant’s employment may be terminated. Claimant submitted that where the parties’ contract is contained in several documents, the courts are enjoined to consider the totality of the documents in determining the real issues between the parties. This was the positions of the Supreme Court in C.B.N. V IGWILO (2007) 14 NWLR (PT. 1054) PG. 393 @ PG. 433 RATIO 8. The defendant sent a “mystery shopper” to the claimant without any prior report of any misconduct against him and thereafter constituted a disciplinary committee who purportedly investigated the matter. Claimant submitted that the investigation conducted by a committee set by the defendant management on the claimant which culminated into his eventual dismissal from employment is highly prejudicial and thus in flagrant breach of natural justice. He referred the court to the decision of the Supreme Court in S.P.D. C. LTD V OLAREWAJU (2008) NWLR (PART 1118) PAGE 1 @ PG. 23 PARAS D – F . Also in OLATUNBOSUN V NISER COUNSEL (1988) 3 NWLR (PT. 80) PG. 25 RATIO 17 the Supreme Court held that:- One of the essential elements of fair hearing is that the body investigating the change (in this case misconduct) must not receive evidence or representation behind the back of the person being investigated. The court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient it might. The risk of it is enough. The claimant in the course of the hearing testified that the video recording upon which the Disciplinary Committee that investigated him wholly based their findings was doctored or edited in several parts and that he was only permitted to watch part of the video. It is therefore, our humble submission that the investigation conducted by the defendant’s Disciplinary Committee against the claimant was prejudicial and did not accord with the principle of natural justice. During the cross examination of the DW1 (Mr. Olufemi Abati-Shobulo) he admitted that there was no such offence known as “mystery shopping” or “parallel banking” listed in the ECOBANK HUMAN RESOURCES POLICY AND RULES ON BUSINESS ETHICS. Interestingly, the letter of dismissal issued to the claimant by the defendant stated “mystery shopping” as the offence by the claimant and not “Conflict of interest” as contained in the terms of the claimant’s employment. We humbly refer my lord to Exhibit PW4. In the case of S.P.D.C LTD V OLAREWAJU (2008) NWLR (PART 1118), PAGE 5 PAR 1. It was held that:- An employer is not bound to give reasons for the terminating the appointment is not bound to give reasons for the terminating the appointment of his employee. But where he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court …. See also the case of OLATUNBOSUN V NISER COUNSEL (SUPRA). The evidential burden of proving that the claimant’s encounter with the “mystery shopper” constitutes parallel banking and therefore amounts to conflict of interest rests squarely on the defendant and such burden must be discharged to the satisfaction of the court. See S.P.D.C. case supra. He who alleges proves. In the instant case, the defendant failed to show the court that the alleged offence “parallel banking” upon which the claimant was suspended and subsequently dismissed by the defendant is contained in the defendant’s ECOBANK POLICY and RULES ON BUSINESS ETHICS. It is not within the parameters of the defendants to go out of the terms and conditions of service and encapsulate in Ecobank Human Resources Policy and Rules in Business Ethics to look for an offence to nail the claimant. Any offence outside both document cannot ensure benefit to the defendant. We urge my lord to so hold. On the defendant’s power to freeze the claimant’s bank account domiciled in the defendant’s bank. Claimant submitted that banks have no power or right whatsoever to freeze customer’s account without a proper court order. There is no law that confers power on banks to freeze a customer’s account. During the trial, the DW1 admitted on cross examination that the defendant froze the claimant’s account without informing the claimant. It should equally be noted that while the plaintiff was on suspension he was still an employee of the defendant company but his salary was not paid by the defendant. The DW1 equally admitted that the only time the defendant could suspend the claimant without pay is where a staff is being investigated on grounds of theft or fraud against the defendant, none of the offence upon which the claimant was suspended and eventually dismissed involves theft or fraud. It is trite that facts admitted need to further proof. We humbly refer my lord to Section 123 of the Evidence Act 2011. Also in UGBOMOR V HADOMEH (1997) 9 NWLR (PT. 520) PG. 307 @ 328 PARAS E – F, the court held that:- An admission is the strongest form of proof. Thus, what is admitted does not require further proof. It is the claimant’s submission that the defendant acted ultra vires and in total breach of the contract of employment by freezing the account of the claimant as it has no power whatsoever to freeze the account of the claimant without a valid order of court, or withhold his salary while on suspension contrary to the parties’ contract of employment. In ROYAL PET. CO. LTD V F.B.N. LTD (1997) 6 NWLR (PT. 599) PARA H, the court held that, the tort of defamation is committed when a customer’s account is frozen regardless of whether or not the freezing is actually published to the whole world or in the press that the customer was fraudulent. See also ALLIED BANK (NIG) LTD V AKUBUEZE (1995) 4 NWLR (PT. 390) @ 508. Therefore, the freezing of account of the claimant by the defendant without a proper court order and or on a non existing offence, constitute a flagrant violation of the claimant’s right and a total breach of the parties contract of employment. He urged the court to so hold. On the validity or authenticity of the video recording admitted in evidence as Exhibit DW1 It is the claimant’s further submission that the video recordings admitted in evidence in this matter does as Exhibit DW1 does not satisfy the requirement of extant provisions of the Evidence Act, hence the court should expunged same from the evidence and no reliance should be placed on same. He submitted that while the admissibility of a particular piece of evidence is governed by relevancy, the question as to whether or not it is governed by relevancy, the question as to whether or not it is authentic forged, tampered with or false in what it asserts goes to the weight to be attached to same. Where the court finds a document (whether electronically generated or otherwise) placed before it to be lacking in authenticity or integrity in any way, it shall reject the contents or assertion contained therein as unproven and attach no evidential value to same. In ITA V DADZIE (2000) 4 NWLR (PT. 652) PG. 168 @ 182 PARAS. F – G, the court held that, where the validity and due execution of a document is challenged, there is duty or burden of proof of the genuineness or authenticity of the document on the party propounding it to call attesting witnesses. Also in AKANIWON V NSIRIM (1997) 9 NWLR (PT. 520) PG. 255 @ 290 PARA. F, the court held that:- A document may be admissible in law but when passed through the crucible of giving it probative value or attach weight to it, it may be found to be a worthless document with no weight attached to it. The claimant’s counsel drew the attention of the court to the fact that several parts of the video was tempered with or edited thereby removing some of the vital aspect of the claimant’s conversation with the “mystery shopper” no explanation was given by the defendant whatsoever in their attempt to tender an incomplete and doctored document in which the facts and had been distorted. The said video was edited in more than 30 places and as such the admissibility of the video as an Exhibit in this trial is questionable. The video was edited in the following places:- 1. 0:04 (seconds); A banner covered the date on the recording which was shown as 2011. 2. The date stated on the recording was June 2012, while another date stated 5th July, 2012. 3. 0:09; there was a skip in the video and music was put in the background, which is an evidence that the video was edited. 4. 0:017; there was a skip in the video. 5. 0:019; there was a banner imposed on the screen with a suggestive writing (evidence that the video was edited). 6. 0:25; there was a skip in the video. 7. 0:36; there was a skip in the video. 8. 0:50; there was a banner super imposed on the screen with a suggestive writing. 9. 1:00; there was another banner on the screen with another suggestive writing. 10. 1:37; there was another banner on the screen with another suggestive writing. 11. 2:32; there was a banner on the screen with a suggestive writing. 12. 2:50; there was a skip in the video (evidence that the video footage was edited). 13. 3:49; there was a banner on the screen with a suggestive writing. 14. 4:52; the presumed client stated that his account was domiciled with First Bank (of which the claimant lured him to deposit his money with the defendant Bank). 15. 5:31; the presumed client opted to pay the money into an Ecobank account. 16. 6:12; the lips of the claimant were not synchronized with his speech (evidence that facts had been expunged and that the video footage had been edited). 17. 6:19; the video did not capture the claimants lips moving in essence to suggest he was the one making the offer. 18. 6:23; the claimants lips were moving but no speech was recorded (evidence to show that the video was edited). 19. 6:27; the issue of the colleague was stated but the lips of the claimant were not synchronized with the speech, (evidence to show that the facts were edited). 20. 6:28; there was a banner super imposed with a suggestive writing on the screen. 21. 6:35 – 6:37; presumed clients voice been heard but the claimants lips moving. 22. 6:42; the voice of the claimant been heard but didn’t show him say anything. 23. 6:50; the claimants lips were moving while the presumed clients voice was been heard. 24. 6:54; there was a banner super imposed on the screen with a suggestive word stated. 25. 6:56; there was a banner on the screen with a suggestive statement. 26. 7:07 – 7:17; lip movement was not synchronized with the speech of the claimant. 27. 7:29; statement stating that the claimant is the assistant bank manger was not synchronized with the claimant’s statement. 28. 7:38; there was a skip in the video and the speech been heard was not synchronized with the movement of the claimant’s lips (as a result of the video editing). 29. 7:43; the issue of the post dated cheque was stated while the lips of the claimant was not moving. 30. 8:12 – 8:18; the video was cut and edited and as such the version where the claimant advised the presumed client of the disadvantages of engaging in any transaction relating with Microfinance banks was very risky and discouraged the presumed client from such was deliberately expunged to alter the facts in order to suit their version of their story. 31. 9:07; the video was cut and edited and as such there was a skip in the video footage. 32. 9:17; the claimant tried to verify the account of the presumed client. 33. 9:23; the video was cut and edited and as such there was a sip in the video and certain vital facts were expunged. 34. 9:43; the video footage was cut and edited and as such certain vital facts were expunged. 35. 10:09; there was a skip in the video footage. 36. 10:23; there was a banner super imposed on the screen with a suggestive statement. 37. 10:25; there was a skip in the video as both the claimant and the presumed client exchanged contacts and as such the transaction was glaringly not completed. Also, the counsel to the claimant objected vehemently to the tendering of the video Evidence when same was sough to be tendered and drew the attention of the court to the fact that the DW1 was not the maker of the video. In the course of cross-examination, the DW1 admitted having no knowledge of the content of the video recording. The video recordings tendered through DW1 can therefore be described as a “documentary hearsay” since the DW1 is not the maker of the video and had no knowledge of the content of same. Therefore ought not to have tendered the document in evidence. Counsel referred the court to the provisions of Section 83 (1) (a) (i) and (4) of the Evidence Act, 2011. The video evidence relied on by the defendant never showed any part whatsoever where the claimant mentioned the name of any Microfinance bank nor the name of any colleague in any bank. The claimant equally never issued the proposed client any post dated cheque whatsoever nor collected any money and fixed same somewhere and as such cannot be said to be guilty of any offence in the manner claimed by the defendant as no transaction whatsoever transpired between both parties. That during cross-examination of the claimant he only stated that “if a man seeks a service which cannot be offered by you, you can refer him to a place where he can get such services and such does not amount to parallel banking”. The intention of the claimant was clear by this testimony as he never had any intention whatsoever to commit any offence in any manner whatsoever as his intention was to lure the proposed client by any means possible to bank with the defendant. Therefore, the video recordings admitted in evidence does not meet the requirement of the Evidence Act and as such no weight shall be attached to same having been doctored and tendered by a person who is not the maker of the said video. We urge the court to so hold. Claimant urged this Honourable Court to resolve this issue in favour of the claimant. Issue 2 Whether the defendant is entitled to the reliefs sought in the counter-claim? On the above issue, counsel submitted that counter-claim is a distinct suit on its own, therefore it must rise and fall based on the evidence adduced before the court. The rise and fall of the defendant’s counter-claimed must not be dependent on the weakness of the claimant’s case. See the case of U.B.N. PLC. V SCPOK (NIG) LTD (Supra). Where there is a contract between both parties and the terms are spelt out, on party will resile from it or unilaterally alter the terms of the contract. See SANYINNA V AFRICAN CONTINENTAL BANK (2001) 4 NWLR (PT. 703) PG. 355 @ PG. 368 RATIO 3. The defendant and the claimant entered into an agreement for a loan facility and the mode of repayment of the facility was totally captured in the said loan agreement i.e. the deduction of the claimant’s salary on monthly basis. The DW1 admitted on cross-examination that the salary of the claimant was stopped upon his suspension in November, 2012. Prior to the stoppage of the said salary of the claimant, the defendant was deducting the claimant’s salary in accordance with agreed repayment plan on monthly bases in service of the loan. Claimant further submitted that the defendant did not claim any specific amount in relation to the loan facility in its counter-claim other than the original facility granted to him which was being liquidated monthly prior to the unlawful stoppage of the claimant’s salary. It is not therefore the duty of the court to reduce her status to that of an arithmetic teacher for the purpose of the amount owed by the defendant. Interestingly, the defendant for reasons best know to it failed to show by way of evidence or even exhibit the claimant’s statement of account showing the total amount repaid/deducted from the claimant’s account in servicing the loan facility. The presumption of withholding evidence therefore operates against the defendant. See A.D V FAYOSE (2005) 10 NWLR (PT. 932) PG. 151 @ 194 PARAS A- D. The defendant has equally not shown the court, when the deductions from the claimant’s account were stopped, how much was deducted from the account, the interest already paid on the loan as at the date of filing the counter-claim. All these must be in the cool records of the court for the defendant to succeed in its counter-claim. It is therefore a burden on the defendant to show how much the loan was, how much that has been deducted so far, how much the balance to be repaid on the loan through the ledger is. It is trite that he who asserts proves. See MAIDARA V HALILU (2000) F.W.L.R. (PT. 19) PG. 433 RATIO 20. See also Section 131 (1) & 136 (1) of the Evidence Act 2011. This duty the defendant has so far failed to discharge. We therefore urge this Honourable Court to so hold. On the claim of N1,000,000.00 being cost of this suit. Claimant then submitted that the defendant has not made out any case entitling it to this relief. The defendant has not placed any material before this Honourable Court in proof of the cost. The defendant did not tender any receipt showing the amount spent in prosecution of this suit. The issue of cost is not awarded as a matter of course, the party claiming the cost of the suit must place sufficient material before the court to be entitled to the award of cost. The claimant stated during cross-examination that he was not aware that the defendant would engage a counsel for the prosecution on this suit. That by virtue of the argument above, the defendant shall not be entitled to the reliefs sought in the counter-claim. On whether the loan contract has not been frustrated by the unlawful dismissal of the claimant from employment. Claimant submitted that, the loan agreement between the claimant and the defendant has been frustrated by the intervening action of the defendant. That is, the wrongful dismissal of the claimant by the defendant. The term “Frustration” has been defined in the Black’s law Dictionary, 8th edition @ Pg. 1974 as. The prevention or hindering of the attainment of a goal, such as contractual performance. It went further to define Commercial Frustration as, An excuse for a party’s non – performance because of some unforeseeable and uncontrollable circumstance. It is the doctrine that if a party’s principal purpose is substantially frustrated by unanticipated changed circumstances, that party’s duties are discharged and the contract is considered terminated. From the evidence adduced before this Honourable Court, it is clear that the only security for the loan granted to the claimant by the defendant is the terminal benefit accruable to the claimant upon his retirement in the defendant’s employment. See Exhibits PW6 and DW6. There is also nothing before the court to show that at the time the parties entered into the loan agreement that they anticipated that the claimant’s employment would be abruptly and unlawfully determined by the defendant. It is also clear that the performance of the loan agreement is hinged of the monthly salary of the claimant which was illegally suspended by the defendant. In DIAMOND BANK V UGOCHUKWU (2008) I NWLR (PT. 1067) PG. 1 @ 28 PARAS, B – F, the court held as follows:- Frustration would occur where it is established to the satisfaction of the court that due to a subsequent change in circumstances which was clearly not in the contemplation of the parties, the contract has become impossible to perform. There must be an event which significantly changes the nature of the contractual rights of the parties that it would be unjust to expect the parties to perform those rights. Therefore, the claimant submitted that the loan contract of the parties has been frustrated by the unlawful dismissal of the claimant by the defendant, thereby making it practically impossible for the claimant to perform the loan contract. We urge my lord to so hold. The claimant concluded that from the state of evidence, pleadings placed on the imaginary scale, it is clear that the claimant has proved its case on balance of probability and he urged this Honourable Court to so hold and enter Judgment for the claimant and dismiss the counter-claim of the defendant in its entirety. Having held that the claimant has proved their case on the balance of probability, we urge this Honourable Court to sign Judgment on his behalf and grant al the prayers sought. I have considered the processes filed, the submissions of counsel, the authorities cited and oral evidence given in this suit. The issues for the determination of the court are:- 1. Whether the claimant is entitled to the relief sought. 2. Whether the defendant is entitled to the counter claim. In this suit the claimant is seeking nine (9) claims or reliefs against the defendants already reproduced above. Reliefs 1, 2, & 3 will be treated together. The claimant was a former employee of the defendant i.e. EcoBank Nigeria Plc until January 10th, 2013 when he was dismissed from the service of the defendant. The terms and conditions of employment was tendered as Exhibits PW1 and contract of employment is the bed rock upon which an aggrieved employee must found his case, and this determines the way and manner, the claimant’s employment should be determined. Since there are written contract of employment and regulatory conditions of service, equity demands that court should hold parties bound by the terms of employment agreement. See Araromi Rulbar Estate Ltd V Orogun (1999) 1 NWLR (Pt. 589) 302. By the wordings of paragraph (vi) of the offer of employment Exhibit PW1, either of the party has a right to determine the relationship by given a month’s notice or a month’s salary in lieu of notice. While an employer is not bound to give reason for lawfully terminating a contract of service, he must give reason for summarily dismissing the servant. Generally, a master can terminate, retire or dismiss his servant for any reason, or for no reason at all. It is settled law and cannot be disputed that there is a duty imposed on an employer who gives reasons for terminating the appointment of his employee. See the case of Imonikhe V Unity Bank Plc (2011) Vol. 202 LRCN Pg. 87 where the court held:- Although it is trite that an employer is not obliged to give any reason for forcing his servant all the same, it is settled law that where he has preferred any reason at all, he is obliged to satisfactorily prove same as the onus is on him in that regard, otherwise the termination/dismissal may constitutes a wrongful dismissal without move. It is a settled law that the duty is on the defendant in this case to prove same. The claimant was dismissed by the defendant via a letter dated 10th January, 2013 from its employment. Exhibit PW4 the letter of dismissal supplied the reasons for the defendant’s determination of the claimant’s appointment stating that it was due to his involvement in parallel banking activities. The question is whether the claimant’s appointment was lawfully determined? A very serious allegation of parallel banking was made against the claimant. By this allegation, the claimant was accused by the defendant of division of a potential customer of the defendant to a microfinance Bank managed by his friend using higher interest rate as an incentive. According to the defendant the claimant was found to be engaging in parallel banking which showed a clear conflict and a gross violation of the defendant’s policy and Rules of Business ethics. The defendant Video recorded the conversation exchanged between the claimant and the Customer Service Quality Inspector (CSQ1) who posed as the mystery shopper. The Video recording showed the claimant encouraging the customer service Quality Inspector (CSQ1) to make the fixed deposits with the microfinance Bank and offering the CSQ1 his personal cheque as security for the fixed deposit. The defendant claimed the action of the claimant contravenes the defendant’s particularly paragraph 5.0 of the Rules on Business Ethics and Ecobank Group Human Resources Policies which the claimant was obliged to abide by as part of his employment terms and conditions. He worked against and under mined the interest of the defendant by utilizing office hour to divert customers to other financial institution in which he had personal interest. It is trite that an employer has the right to discipline any erring staff including the claimant for any act of misconduct. The claimant was issued a query as he stated through his Mail Box. The query he answered. He was later invited to appear before a disciplinary committee on the 23rd of November, 2012 at the Headquarter of the defendant in Lagos. By a letter dated 23rd November, 2012 the claimant was placed on indefinite suspension without pay pending the investigation and conclusion of the bank on the involvement of the claimant on this issue. Suspension means temporary deprivation, cessation or stoppage of or from the privileges and rights of a person. It conveys a temporary disciplinary procedure which keeps away the victims or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiation of the discipline a period to make up his mind as to what should be done to the person facing discipline. At that stage the interest of the business of the employer becomes paramount. The employer has the right to discipline his erring staff for any act of misconduct. One of such ways is by placing the employee on suspension. The employee is placed on hold in anticipation of either being called or laid off permanent. In the claimant’s case he was not recalled but laid off permanently by his dismissal from the employment of the defendant. Before the claimant was dismissed the claimant was given opportunity of knowing what he has done through the query which he promptly answered. There are various degrees of misconduct which can give the employer liberty to dismiss an employee for instance fraud, grieve and weighty misconduct. The claimant never denied not having any contact with the mystery shopper and advising him where he could place his money and offering to secure the safety of the money in the Microfinance Bank shows a conflict of interest. In the instant case, the allegation made against the claimant is grieve and weighty. I have no doubt that the claimant’s conduct in diverting customer’s of the defendant to another Financial Institution amounts to gross misconduct. The defendant has been the able to prove the allegation of involvement of the claimant with the surprised mystery shopper in the whole episode. The fact that the claimant offered the supposed customer of the bank a personal cheque as security for the amount the supposed customer wanted to fixed shows some level of disloyalty and gross misconduct. It is obvious that the relationship between the claimant and his employer has soured up, upon the defendant realising that the claimant has become disloyal by working against its business interest. In my view by the claimant’s action, confidence has gone and eroded and there is no way the defendant would wish to retain such an employee in his employment. To me the claimant is guilty of misconduct for which he can be dismissed without notice and without wages. It is enough that conduct of the claimant is a grieved and weighty character as to undermine the confidence which should exist between him and his employer. The claimant’s letter of offer of employment Exhibit PW1 has provided that in paragraph ix that:- You shall be bound by all existing and future rules, regulations, policies and procedures of the Company, in force from time to time and those to which the company is statutorily bound to comply with. You are therefore, required to familiarize yourself with same. It is the responsibility of the defendant to mange its affairs to be able to remain in business. The claimant has agreed under cross examination that the defendant do carry out checks on the staff of the bank to ensure that they carryout the policy of the bank. The CCTV narration only confirmed that a mystery shopper would be customer came to the bank and had discussion with the claimant. On the state of facts of this case, the claimant is not entitled to reinstatement. In an ordinary contract of master and servant the general law is that the courts will not grant specific performance of a contract of service even if the dismissal has be wrongful, it cannot be unlawful since employer has the right to hire and fire its employee, the remedy will only be in damages. In this case the claimant employment has been lawfully determined. On reliefs 6, 7 & 8 The court makes no award as the claimant is not entitled to them. I Now proceed to consider the counter-claim, wherein the defendant is claiming as follows:- i. The sum of N1,000,000.00 (One Million Naira) Only being the legal costs and ancillary expenses incurred by the counter- claimant in defending this frivolous action of the claimant. ii. The sum N3,750,000.00 (Three Million Seven Hundred and Fifty Thousand Naira) Only being the outstanding debt of the claimant due to the Employee Credit Facility. iii. The interest on the sum of N3,750,000.00 (Three Million Seven Hundred and Fifty Thousand Naira) at the rate of 12 percent per annum from the date of approval of the loan being 17th July, 2012 to the date of payment thereof. A counter-claim is itself an action district and separate from the main claim of the claimant. The claim made must be supported by its evidence. The defendant is claiming in the counter-claim for the sum of N3,750,000.00 and also interest rate at 12% on the above sum, being outstanding debt of the claimant from the loan granted to him. While the claimant has admitted taken the loan, it is imperative for him to repay the loan he took from the Bank. However, the Bank has not presented any document at trial to show how much the claimant took, and how much he had repaid of the loan. The sum being claimed has not been verified. The Order of court is that the claimant should repay the debt at the interest rate both parties had earlier agreed to. On the sum of N1M being legal cost and ancillary expenses incurred by the defendant in prosecuting the case, the court makes no award. On the issue of N50M general damages for unlawful dismissal of the claimant, the court makes no award because damages are awarded as a form of financial reward to a claimant who has suffered a wrong by the wrongful act of the defendant. Where there is no wrong there cannot be damages. For the reasons given above, the claimant’s claims lack merit and it is hereby dismissed. The defendant counter-claim claims succeed in part, and he is entitled to recover only the amount the claimant is yet to repay at the rate agreed to by parties. Judgment is entered accordingly. _______________________________ HON. JUATICE O. A. SHOGBOLA JUDGE