Peter Elama -VS- United Bank

for Africa Plc

 SUMMARY:
That the suspension without pay of the claimant is wrongful and thus held Claimant
to be entitled to the emoluments as entitled. Meanwhile, upholding defendant’s
dismissal.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A.ADEWEMIMO

DATED: 14TH JANUARY, 2019 SUIT

NO: NICN/BEN/17/2017

BETWEEN

PETER ELAMA CLAIMANT

AND

UNITED BANK FOR AFRICA PLC DEFENDANT

 Support
REPRESENTATION:-

1. O. ESEINE FOR THE CLAIMANT.

1. I. IHENYEN FOR THE DEFENDANT.

JUDGMENT

The Claimant by a Complaint before this Court on the 14th August, 2017 claims
against the Defendants as follow:

(a) A Declaration that the continuous suspension of the Claimant without

issuance of the letter of termination by the Defendant is illegal, null and void.

(b) A Declaration by the Honourable Court that the disengagement of the

claimant by the defendant is wrong, anomalous and against the rules of natural
justice.

(c) A Declaration that the Claimant is still in the employment of the

Defendant and the Claimant is entitled to salary and other bene t from the said
date of suspension till date.

(d) An Order of this Honourable Court compelling the Defendant to pay the
Claimant his full salaries of N27, 744,650.00 and allowances due to him from
October 2011 till the Day of Judgment.

(e) The deductions made from the Claimant’s salary for pensionpaid to the
Claimant. Other entitlements including but not limited to the terminal bene ts,
allowance and emolument be calculated and paid to the Claimant up till the nal
determination of this suit. (f) The Claimant also claims 35% interest in No. 3
above until Judgment is given and 21 % interest from Day of Judgment until the
entire sum is liquidated.

(g) The sum of N10, 000,000.00 (Ten Million Naira) only beinggeneral
damages for embarrassment, harassment, intimidation and physiological
trauma caused the Claimant.

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(h) The sum of N5, 000,000.00 (Five Million Naira) Only beinggeneral
damages.

(i) An Order of the Honourable Court compelling the Defendant to issue the
Claimant certi cate of discharge from his service.

(j) The cost of this action.

The Claimant led along with the Complaint all the accompanying processes, i.e.
statement of facts, claimant’s deposition on oath, list of witness and documents to
be relied on, while the defendant led a memorandum of appearance on the 18th of
October, 2017, the statement of defence and other accompanying processes.

The Claimant’s case is that he was posted to the Defendant for his primary
assignment during his NYSC service year, thereafter employed as a contract sta
, claimant was nally employed as a full time sta on 2nd January, 2003 and his
appointment was con rmed on the 11th October, 2003. He later rose to the
position of Operations Manager with the defendant. It is the claimant’s case that
following what the defendant referred to as “Fraudulent conversion of
N12,390,920.00 (Twelve Million, Three Hundred and Ninety
Thousand, Nine Hundred and Twenty Naira) only from Harrison
Ekpetin’s account with the Defendant domiciled in Sakpoba Road Branch, Benin
City, investigation was carried out for months by the the Defendant and a report was
submitted to the disciplinary committee of the Defendant, they also issued a report,
neither of which was made known to the claimant.

The disciplinary committee later questioned 3 members of sta namely Andrew

Isonah, Fasida Subomi and Peter Elema (Claimant). The defendant thereafter
requested the Claimant to proceed on loan recovery suspension with zero pay on the
11th October, 2011. The Police in Edo State were later called in by the defendant on
the alleged fraudulent conversion and after investigation, the trio of Andrew Isonah,
Subomi Fasida and Peter Elama were charged before an Oredo Magistrate Court,
Benin City, and were later discharged and acquitted in a judgment delivered on the
13th of August, 2014 by that court. The claimant thereafter caused his solicitor to
write the defendant calling for his reinstatement, this was rebu ed by the
defendant and till date the defendant failed to issue any letter of termination to him
or pay his entitlement and outstanding salaries.

The defendant in its defence admitted certain paragraphs of the statement of facts
and denied some others.

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The defendant averred that the claimant was a sta of the Defendant but that is no
longer the case as he was found guilty of nancial impropriety by the disciplinary
committee of the Defendant and dismissed for gross misconduct. The allegation
against the claimant is that as branch operations Manager, alongside other sta
of the defendant he failed to exercise due diligence in the transaction which
involved fraudulent conversion of a customer’s funds as collateral for other bank
customers. The defendant stated that the account was debited with the sum of N12,
390,094.74 (Twelve Million, Three Hundred and Ninety Thousand, Ninety four
Naira, Seventy Four Kobo), without the customer’s consent in a bid to clean up cash
collaterised facilities. The defendant averred that as Branch Operations Manager
the claimant is expected to check and con rm that every transaction presented to
him for authorization follows due process and is in line with the bank’s policy, this
he failed to do and it will therefore be a misnomer to retain the claimant as a sta of
the defendant after been indicted of nancial impropriety by the defendant as
this would not have been in the best interest of the defendant as a nancial
institution. The defendant therefore urged the Court to dismiss the suit with
substantial cost.

Trial commenced in this suit on the 9th April, 2018 with the claimant testifying for
himself as CW1, he adopted his witness statement on oath and additional statement
on oath. CW1 also tendered several exhibits which were admitted and marked
Exhibits P1–P14 and was cross examined. The Claimant thereafter closed his case.

On the 14th of May, 2018 the Defendant opened its defence by calling one Abel
Ohaegbulem, as DW1, he adopted his witness Statement on oath and tendered
Exhibit B1, titled “letter of dismissal”, to which the claimant objected, the court
however urged counsel to address it on the admissibility of the document at the
Final Written Address stage, DW1 was also cross examined. The Defence thereafter
closed its case and the case was adjourned for the adoption of nal written
th
addresses. The parties adopted their addresses on the 25 October, 2018, and the
case was adjourned for Judgement.

The Defendant led its address on the 1st of June, 2018, wherein it formulated three
issues for determination:

1. Whether the Defendant was right to dismiss the Claimant after its
disciplinary Committee found him guilty of gross misconduct.

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 2. Whether this Honourable Court can grant the Claimant the reliefs he seeks,
having been found guilty of gross misconduct by the disciplinary
Committee of the Defendant.

3. Whether every allegation of crime against employees must be proved in

court before dismissal.

Learned counsel submitted that the claimant appeared before the disciplinary
Committee of the Defendant on allegations of fraud, and was found guilty of gross
misconduct and dismissed, as evidenced by Exhibit P12. This he submitted is
within the rights of the defendant. He argued that the term “Misconduct” is what an
employer says it is. Counsel cited the case of NNB v. Oniovosa (1995) 9 NWLR
Pt. 419 pg. 327 @ 334, paras. F-H; Oyedele v. University Teaching Hospital
(1990) 6 NWLR Pt. 155, 194; Usen vs. BWA (1965) 1 ALL NLR 244; C.B.N v.
Aribo (2018) All FWLR Pt. 925, 93 @ 137, paras.
F-G and Yusuf v. U.B.N (1996) 6 NWLR Pt. 457, 632 @ 648, Paras.H, S.C.

On issue two, counsel submitted that there are three categories of contracts of
employment:

(a.) Purely master and servant relationship;

(b.) Servants who hold their o ce at the pleasure of the employer, and;

(c.) Employments with statutory avour.

Counsel argued that the instant case falls into the rst category i.e. master and
servant relationship and the master retains an unfettered right to terminate the
employment, but in so doing, he must comply with the procedure stipulated in the
contract of employment. He also submitted that a servant cannot be imposed on an
unwilling master, citing Longe v. F.B.N Plc (2006) 3 NWLR Pt. 967, 228 @ 265,
paras. G-H; pg. 268, paras. B-H, C.A;Garuba v. Kwara Investment Co. Ltd (2005)
5NWLR Pt. 917, 160 @ 179, para. F, S.C; and others.

Learned counsel argued that since the employment relationship between the parties
is not statutory, an employee’s remedy in a case of wrongful dismissal lies in
damages. He cited Osisanya v. Afribank Nig. Plc (Supra); Olarenwaju v. Afribank
(Nig.) Plc. (2001) 13 NWLR Pt. 731, 691 and U.B.N. Ltd. v. Ogboh (1995) 2
NWLR Pt. 380, 649. The damages available to an employee is the payment of his

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salary in lieu for the period of notice stated in the contract of employment. In other
words, damages will be the amount he would have earned if his employment was
properly and validly determined. He cited Osisanya v .Afribank Nig. Plc (2007) 6
NWLR Pt. 1031, 565 @ 586, paras. D-E, S.C; Imoloame v. WAEC (1992) 9
NWLR Pt. 265, 303 ;and others.

On the claim for general damages, learned counsel posited that general damages are
not awarded in cases of wrongful dismissal, he cited P.Z Ltd. v. Ogedenge (1972) 1
All NLR Pt. 1, (1972) 3 S.C., and noted that Exhibit P2 provides that the
Claimant’s employment may be terminated by giving one (1) month notice or cash
in lieu and that the Bank reserves the right to terminate the employment for
misconduct or unsatisfactory performance before the end of the contract
period. He asserted that parties are bound by the terms embodied in a contract of
employment and where the terms of an employment are written and express,
extrinsic evidence is not admissible to add to or vary the terms. He cited
Olanrewaju v. Afribank (Nig) Plc (2001) 13 NWLR Pt. 731, Pg. 691 @ 714-715
Paras. FC, S.C;Layade v. Panalpina (1996) 6 NWLR Pt. 456, 544 @ 558, Para.
BC, S.C.

Learned counsel argued that the summary dismissal of the claimant is in line with
the contract of employment. He referred to the case of Olanrewaju v. Afribank
(Nig) Plc (2001) 13 NWLR Pt. 731, Pg. 691 @ 712, para.C; 714, Para. F; 715,
paras. B-C, S.C., and argued that a servant who has been dismissed cannot claim
wages for services he never rendered, citing Olatunbosun v. NISER Council
(1988) 3 NWLR Pt. 80, 25; Spring Bank Plc v. Babatunde (2012) 5 NWLR Pt.
1292, 83 @ 101, Paras. C-D and others.

On issue three, E. I. Ihenyen submitted that in a statutory employment, as well as

master and servant relationship, an employee can be summarily dismissed for gross
misconduct involving dishonesty bordering on criminality, and in such a case, it is
not necessary, as required by Section 36(1) of the 1999 Constitution (As Amended)
that an employee must rst be tried in a court of law. Learned counsel argued that
it is erroneous to argue that once a crime is detected, the employer cannot dismiss
the employee unless he is rst tried by a court of law, and in the instant case
it was not necessary for the Defendant to initiate criminal prosecution before taking
disciplinary measures against the claimant by way of summary dismissal where the

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misconduct undermined the relationship of con dence which should exist
between him and the employer. He cited in support of this position; Arinze v.
F.B.N. Ltd. (2004) 12 NWLR Pt. 888, 663 @ 673. Paras.F-G; 765, paras.E-G;
676-677, paras. G-A, S.C;Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR
Pt. 457, 632 @ 644, paras. G-H, and others.

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In conclusion, Counsel urged the Court to dismiss the entire suit with punitive costs.

D.O. Eseine of counsel for the claimant thereafter adopted his nal written address
th
led on the 10 of October, 2018, wherein three issues were formulated for
determination to wit:

1. Whether the unsigned suspension letter dated October 11, 2011 served on the
claimant by the Defendant was valid and legally binding on the claimant to
proceed on suspension.

2. Whether the claimant was still in the employment of the defendant in the
circumstance of this case from October 2011 till judgment.

3. Whether the claimant proved his case upon which the court can nd for him the
reliefs sought.

On issue one above, counsel submitted that the claimant was served with an unsigned
letter of credit recovery suspension dated 11th October, 2011 i.e. Exhibit P13 following
the recommendation of the Bank disciplinary committee vide Exhibit P12 that the
claimant be suspended for 3 months with zero pay for what the defendant alleged to be
fraudulent conversion of a customer’s xed deposit for various cash collaterised
loans by Isonah Andrew, a sta of the Defendant. He submitted that Exhibit P13
which was unsigned by the defendant is a void and worthless document and does not
have any e cacy in law. He cited Brew Tech Niger Ltd V Folageshim Akinnawo
(2016) LPELR 4009 (CA); Anyaoha V Obioha (2014) 6 NWLR (Pt 1404) 445. and
several other cases and thereby submitted that the suspension of the Claimant is null
and void as an unsigned document is entitled to no weight in the eye of the law, arguing
further he stated that the employment is still unbroken and subsisting and urged the
court to hold that he is entitled to salaries

amounting to N27, 774,000:00 for the period of the purportedSupport suspension and he remains a sta until
the contract is validly

determined. He relied on the following authorities: Alamu V Afrotech Technical

Service (Nig) Limited (1980) 2 QLRN 126; Adekunle V Western Region Finance
Cooperation (1963) NWLR; and others.

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On Issue two, counsel adopted the above argument that Exhibit P13 which is the
suspension letter issued to the claimant was not legally binding and urged the court to
grant the relief that claimant is still in the employment of the defendant.

Learned counsel submitted that where the dismissal of an employee is based on an alleged
criminal charge, the allegation must rst be proved, he cited paragraphs 3, 12, 14,
15, 16, 17 and 18 of the statement of Facts and Exhibit P8 (Certi ed True Copy of the
Judgment of Magistrate court 4, Oredo Magisterial District Benin City) and evidence on
oath in line with Section 59 of the Evidence Act 2011 to support his argument.

He argued that since the claimant was purportedly dismissed based on criminal o
ences of forgery, fraud, conspiracy, collusion, conversion and other allegations contained
in paragraphs 15 and 16 of the statement of Defence, the law is to the e ect that
“where a law or statute has laid down a procedure for doing a thing, compliance with that
procedure is a condition precedent to doing that thing. He cited Cooperative Bank V
Attorney-General, Enugu State (1992) 8 NWLR (pt 261) 528; Atiku Abubakar V
FRN (2002) FWLR (pt 441) 893. He pointed out that the proof of criminal case(s) is
beyond reasonable doubt, citing the case of Adewumi V The State (2016) Vol 259
LRCN 168. ADEKOYA V STATE (2012) 9 NWLR (PT 1306) 539 AT 565 per
Adekeye JSC. The counsel stated further that the alleged oences were not su
ciently pleaded and particularised in paragraph 15 and 16 of statement of defence to
establish the o ences of fraud, forgery, conversion and conspiracy etc. in line with
frontloading regulation in civil cases. He posited that it is the law that a party who relies
on the provision of a statute for defence should plead facts relied upon for bringing a
particular transaction within the ambit of that statute. He cited Mobil Producing Nig.

Unltd. V Udo (2009) ALL FWLR (pt 482) 1177 at 1182; Olalomi Ind. Ltd. V NIDB
Ltd (2010) Vol 178 LRCN 50 at 56 and section 138 of the Evidence Act Cap 112
LFN.

He further argued that there is no valid letter of termination in this suit and buttressed
this point by citing paragraph 2 of the Statement of Defence where the Defendant
admitted paragraph 21 of the statement of Facts, paragraph 21 reads as follows:

“The claimant avers that since his suspension letter dated October
11th. 2011, he was not issued with any other letter terminating his employment”.

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he argued that facts admitted need no further proof, the Defendant having directly,
positively and unequivocally admitted the claimant’s assertion above cannot recant by
citing a letter of termination not tied to the Statement of Defence, he cited ALHASSAN
& ANOR V. ISHIAKU & ORS 2016 VOL 258 LRCN 73 @ 93, and submitted further
that the onus is on the defendant to proof with su cient evidence the claim that it
delivered Exhibit B1 to the claimant, failure of which will be fatal to the it’s case. The
assertion that the letter of dismissal was given to the defendant he argues is an
afterthought and falls short of the proof of despatch. He added further that assuming
without conceding that the claimant was duly suspended, this will not qualify as a
dismissal, he cited LONGE V. 1ST BANK (NIG) PLC 2010 LER SC 1166/2007 @ Pg
52.

In the same vein, learned counsel for the claimant urged the court to hold that the claimant
is entitled to the sum of N27,774,650
(Twenty Seven Million Seven Hundred and Seventy Four Thousand, Six Hundred and
Fifty Naira) only as his salaries for 5 years 9 months from October 11th, 2011 to 14th
August 2017 vide Exhibit P14.

Counsel asserted that the claimant is entitled to the following reliefs; special damages,
general damages, certi cate of discharge. Learned counsel also urged the court to
award cost against the defendant but acknowledged that this is at the discretion of
court.

In conclusion, counsel urged the court to discountenance the defence put up by the
Defendant in this suit and give judgment in favour of the claimant.

On 18th October, 2018, the defendant led a Reply on Points of Law in which the
defendant contended that in an action for wrongful dismissal or termination of
employment, the burden is always on the employee to prove the terms and conditions
of his contract of employment and in what manner the said terms were breached by the
employer.

The Defendant in reply to the claimant’s address stated that it had outlined the
particulars of fraud in the body of its Statement of Defence. And this is preceded by the
last sentence in paragraph 4 of the statement of defence which clearly states
‘’Particulars of fraud are hereunder stated’’. He submitted that the claimant’s
argument on this point is misleading and that counsel are ministers in the temple of
justice and their conduct must always be above board as Counsel should always
endeavour to assist the court instead of misleading it. He cited Akpan v. Bob (2010)
17 NWLR (Pt. 1223) 421 @ 499, S.C.

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The Defendant submitted that Order 30 Rule 17 of the National Industrial Court of
Nigeria (Civil Procedure) Rules, 2017 provides that wherever it is material to allege
malice, fraudulent intention, knowledge or other condition of the mind of any person, it
shall be su cient to allege the same as a fact without setting out the circumstances
from which the same is to be inferred. He therefore submitted that the contention of the
claimant’s counsel is inconsequential.

The Defendant in answer to the claimant’s submissions that the testimony of DW1 is
incompetent as it amounts to hearsay and o ends Section 126 of the Evidence
Act as he was not a party to what transpired between both parties in this suit, argued
that the position of the law is that an authorised agent or employee of a company can
give evidence of any transaction entered into by his principal, and cited the following
cases; Interdrill (Nig.) Ltd. v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52 @ 67, Paras.
E-H; A-D,Nweze, J.S.C.; Ishola v.
Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405 @ 424, Paras. E-G and
others.

The defendant submitted that the testimony of DW1 in this suit is not hearsay, as it was
clearly stated on his Written Statement on Oath that he is a banker in the employ of the
Defendant who had given him the mandate and authority to represent it in this suit.
Consequently, his testimony is irreproachable.

The Defendant submitted that it is not every fact that needs to be pleaded. He cited
Saleh v. Bank of the North Ltd. (2006) 6 NWLR (Pt.976) 316 @ 332, Paras. H, S.C.
and argued that a denial of a particular paragraph in a statement of defence by way of a
general traverse has the same e ect as a speci c denial of it. Its e ect, solely,
is to put the plainti to strict proof of the allegation in that paragraph. Its e
ect is that it casts on the plainti the burden of proving the allegation denied. He also
cited Dairo v. Registered
Trustees, T.A.D., Lagos (2018) 1 NWLR Pt. 1599, 62 @ 81-82, paras. H-B,
82, Para. C, S.C.

In conclusion, the defendant submitted that a declaration is impossible in a master and

servant relationship. He cited Odiase v. Auchi Polytechnic (1998) 4 NWLR Pt. 546,
Pg. 477 @ 492, Paras. E-F, C.A. and asserted that where the main relief sought in a
suit fails, the ancillary reliefs must also crumble. He cited Sunko (Nig.) Ltd. v. Skye
Bank Plc (2017) 12 NWLR Pt. 1579, 237 @ 270, paras. F-H, C.A. and that a dismissal

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of an employee for gross misconduct is a disciplinary measure which carries no bene ts.
He also cited U.B.N Plc v. Soares (2012) 11 NWLR, PT. 1312, PG. 550 @ 575, Paras. F-
G, C.A and concluded by stating that no one should be permitted to pro t from his
own wrong or default (nullus commodum capere potest de injuria sua propria) as the
Claimant is seeking, he cited ABACHA V EKESPIFF (2009) 7 NWLR PT. 1139, PG. 97
at 132, PARA. G. Counsel urged the Court to dismiss this suit in its entirety as it is
dead on arrival and devoid of any morsel of merit.

I have carefully gone through the processes led in this suit and I have come up
with the following issues to best determine this suit to wit;

1. Whether or not the letter of suspension dated October 11, 2011 given to the
Claimant by the defendant is valid.
2. Whether or not the letter of dismissal dated 6th January, 2012 properly
determined the employment of the claimant; and depending on the answer to the
above when is the e ective date of dismissal.
3. Whether or not the e ective date of dismissal is binding on the Claimant.
4. Whether or not the Claimant is entitled to the reliefs claimed.

On issue one, the claimant contends that an unsigned document is a void and worthless
document and does not have any e cacy in law, and so Exhibit P13 which is
unsigned is inadmissible in law and cannot qualify as a valid letter of suspension, thus the
claimant’s employment is still subsisting.

In FCDA Sta Multipurpose (COOP) Society & Ors v. Samchi & Anor
[2018] LPELR-44380(CA) the Court of Appeal per Mohammed Mustapha, J.C.A said

“where a document which ought to be signed is not signed, for whatever reason, then
the very essence of the document is now questionable, because its authenticity is in
serious doubt; it is like a man without a face, only worse, and for that reason, the
ambiguity created as a result be construed against the maker or whoever sought to
present it; see Garuba v. Kwara Investment Co. Ltd.
[2005] (PT.917) 469, Aiki v. Idowu [2006] 9NWLR (Pt.984) 47 and
Zemi v. Geidam [2004] All FWLR (pt.237) 457.”

Further to this the Supreme Court case of Abubakar v. Yar’Adua [2009] All FWLR
(Pt.457)1, was cited in the above judgement where the Supreme Court held;

“a court of law can only pronounce judgment in the light of evidence presented
and proved before it. A Court of law cannot go outside the evidence presented and

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proved before it by embarking on a voyage of discovery in search of other evidence
in favour of the
parties”………………………………………………

The position of the law is trite and tested that an unsigned and undated judgment is
null and void and of no e ect whatsoever, it is as simple as that, the court has
no more interest in the matter than the parties, and if the parties choose to rely on
an invalid document, the trial court is expected simply to disregard it or reject it for
what it is or isn’t; see Awoniyi v. Aleshinloye [1998] 9 NWLR PT.564 71”

The Claimant in his written address is contesting the admissibility in Law of Exhibit P13
which is an unsigned letter of suspension addressed to the claimant, the defendant
however did not deem it t to canvass any argument in response.

However, apart from the fact that it was the claimant that tendered this document, he also
pleaded it, relied on it and complied with the directive in Exhibit P13 after he was served
with the said suspension letter by not going to work. The only attempt he made to go back
to work was when he wrote Exhibit P9 through his solicitor D.O Eseine to the defendant
wherein he demanded for his reinstatement. The claimant is therefore estopped from
denying the validity of the said letter. See the case of Nicholas Frank Opigo v. Van
Kruma Yukwe [1997] 6 NWLR (Pt.59) page 428 at 441, where it was held as follows:

“it is a rule of equity that a party cannot approbate and reprobate which has led to
estoppels by conduct…”

See also Section 169 of the Evidence Act 2011. I nd therefore that Exhibit P13
is a valid and e ective letter of suspension from the circumstance of this case. I so hold.

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On issue two and three, it is the contention of the claimant that based on Exhibit P8
(Certi ed True Copy of the Judgment of Magistrate Court 4, Oredo Magisterial
District Benin City) wherein he was discharged and acquitted of the allegations
contained in the charge sheet by the defendant against him, he is still in the
employment of the defendant.

The defendant on the other hand contends that the employment of the claimant have
since been terminated, and that the defendant was well within its rights to dismiss the
claimant as the employer can dismiss an employee where the accusation against such
employee is of gross misconduct involving dishonesty bordering on criminality, and in
such a case, it is not necessary, nor is it required under Section 36(1) of the 1999
Constitution (As Amended) that an employee must rst be tried in a court of law.

In the case of Imonikhe v Unity Bank Plc [2011] 12 NWLR PT.1262 Pg.624-649 the
Supreme Court held that the plainti ’s dismissal was in order and complied with
the terms of his employment. The court also held that he had been given fair hearing,
having been made aware of the allegations and having been given an opportunity to
defend himself before he was dismissed. The Supreme Court dismissed the appeal and
declined to nullify Mr Imonikhe’s dismissal, rather it a rmed that an employer can
discipline or dismiss an employee without necessarily proving the allegations against
the employee before a court of law.

Subsequently, a Supreme Court decision in Eze v. Spring Bank Plc [2011] 18 NWLR
PT.1278, Pg 113 @ pgs 134 F-H and 135 B-D also con rmed this position where it
held as follows:

“It is no longer the law that where an employee commits acts of gross misconduct
against his employee which acts also disclose criminal o ences under any law, the
employer has to wait for the outcome of the prosecution of the employee to
discipline the employee under the contract of service or employment.”

Flowing from the above, it is clear that the defendant had an unfettered right to dismiss
the claimant whether or not the

allegations against him had been proved or disproved in a court ofSupport law. This however leads us to issue three,
which is, whether or not

Exhibit B1 (a photocopy of a letter of dismissal dated 6th January, 2012) tendered by the
defendant is a valid letter of dismissal of the claimant.

On the 14th of May, 2018 the defendant tendered Exhibit B1, which was objected to by
the claimant on the ground that it was never pleaded nor any foundation as to the


whereabouts of the original laid, the court however admitted the document and urged
parties to address the court on its admissibility at the Final Written Address stage.

On the 14th of May, 2018 DW1 stated under cross-examination as follows:

– It is not true that Exhibit B1 was made for the purpose of this case

– There is no acknowledgement by the Claimant on Exhibit B1

– I do not have any such proof that this letter was dispatched to the Claimant
no DHL, EMS receipt whatsoever.

– The letter was served on the Claimant directly as it is usually done. The party
will be called to the o ce.

– It is not the practise for a party to acknowledge a letter of dismissal.

– It is not the practise in my o ce not to acknowledge letters but in cases

such as this it has not been the practise to acknowledge such letters.

It is trite that a dismissal takes e ect only when it is communicated to an employee. In

the Unreported case of Anyaehie v. Fidelity Bank Plc suit No. NICN/LA/622/2012
delivered by my learned brother Oyewumi J, the court held that:

“The law is well settled that a notice of termination/resignation takes e ect from the
date the letter was received by the employer or its agent, See WAEC V
OSHIONEBO [2006] 12 NWLR (PT 994) 258;

ADEFEMI V ABEGUNDE [2004] 15 NWLR (PT 895) 1; The apex CourtSupport reiterated and rea rmed this
position of the law in CHRISTIANA

YARE V NATIONAL SALARIES AND WAGES COMMISSION [2013] LPELR

20520, S.C. Both parties are ad idem that the claimant was lawfully employed
however, the point of divergence is on the mode and e ective date of termination.
It is trite law that where an employee’s contract of employment is terminated
without notice, the e ective date of termination is the date on which the letter
was communicated. In an English case of HORWOOD V LINCOINSHIRE
COUNTY COUNCIL [2012] U.K.E. @ 0462/11.; it was held that where an
employee’s contract of employment is terminated without notice as it is in this
case, the e ective date of termination is the day that notice is communicated.”

The claimant having denied receipt of the letter of dismissal and the defendant having
admitted that the Claimant did not acknowledge Exhibit B1 shifted the burden of

 Support
proving that the letter of dismissal was received by the claimant on the defendant and
this can only be discharged in three ways:

1. By a dispatch book
2. By evidence of dispatch by registered post.
3. By evidence of witnesses credible enough to testify that the Defendant was served
with it.

See 1ST BANK NIG. PLC V. S.M.P. AKIRI 2013 LPELR 21966, the court further
held in that case per Denton-West JCA as follows:

“It is now settled law that the issue as to whether a document is received or not is
purely an issue of fact to be proved by evidence. In law, the burden of proving the
existence of the material issue in controversy is on a party who will lose if no
evidence is adduced”

In this case, the Defendant failed to place any evidence before this court in proof that
the Claimant was actually served with Exhibit B1, the consequence of this is that the
dismissal only came to the knowledge of the claimant after the initiation of this suit and
speci cally on the 20th of October, 2017 when the defendant was served with the
statement of defence. Further to this the defendant

failed to call any oral evidence in that the employment of the its employment for good or bad
prove of the receipt of Exhibit B1 claimant was determined on the reason or for no reason at all. It
th
by the claimant. I therefore 20 of October, 2017 when he is in consonance with this that
nd and hold that the claimant’s became seized of the dismissal the Courts rarely order for speci
employment was determined on letter, I nd that this claim has c performance of
th
the 20 of October, 2017. been overtaken by events. I so contract of employment so as not
hold to foist an employee on an
The resultant e ect of the above unwilling employer. See
nd
leads me to issue 4, that is, The claimant by his 2 claim is Adebayo Sunday Joseph & Ors
whether in view of the above the seeking a declaration by the Court v. KWARA State Polytechnic &
claimant is entitled to the claims that the disengagement of the Ors [2013] LPELR 21388
he is seeking in this case. claimant by the defendant is (CA); A.R .MOMOH V C.B.N
wrongful, irregular and against [2012] 1 NLLR.P. 48 @ P. 78.
The claimant’s rst claim is a the rules of natural justice. And in Abomeli v. NRC [1995]
declaration that the continuous 1 NWLR (PT.372) 451 CA
suspension of the Claimant It is the law that, ordinarily in a
where the court held that:
without issuance of the letter of master/servant relationship, a
termination by the Defendant is master is entitled to terminate the
illegal, null and void. Having held employment of its employee from

 The claimant stated that the month notice or cash in lieu
disciplinary committee of the while the Bank reserves the
“The employer has a general defendant questioned him and right to terminate the
power to dismiss for two (2) other sta namely Andrew employment for misconduct or
misconduct of any kind that Isonah and Fasida Subomi based unsatisfactory performance
can justify dismissal and to on the earlier investigation and he before the end of the contract
terminate the employees was later requested to proceed on period….”
employment or give him a loan recovery suspension with
month’s salary in lieu of notice. zero pay.
For instance, dishonest
practices, or criminal activities, This is distinct from a dismissal,
or acts and behaviour that as a dismissal is an immediate It is clear from the above
demonstrably portray an cessation of the contract of therefore that the defendant can
employee as an unreliable employment, the court in dismiss any of his sta for
person are very strong reasons Abomeli v. misconduct or unsatisfactory
for an employer to dismiss an N.R.C Supra, outlined the performance.
employee. In most cases, the following degrees of misconduct
dismissal of an employee is which give an employer liberty to On the Declaration sought by the

usually attributable to acts of dismiss an employee. These claimant that he is still in the

misconduct by which the include: employment of the Defendant

employee has performed below and the Claimant is entitled to

1. Dishonesty or fraud of salary and other bene t from
the expectation of the employer
employee in his employment;
or has allowed his pernicious the said date of suspension till
or
behaviour to make the date. Having held that the
2. Grave and weighty
employer su er losses.” misconduct; or Claimant was dismissed on 20th
3. A real but unreasonable October 2017 when the dismissal
In the instant suit, the Claimant dissatisfaction with the was communicated to him, the
avers that following what the employees conduct; or rst leg of this relief fails.
defendant referred to as 4. The employer produces su On the issue of whether or not he
“Fraudulent conversion of cient evidence to us entitled to salary and other
N12,390,920.00 establish a strong prima bene t from the said date of
(Twelve Million, Three Hundred facie case of in delity. suspension, a cursory look at
and Ninety Thousand, Nine Exhibit P13 reveals the
Hundred and Twenty Naira) from following:
a customer’s account, an
In this suit Exhibit P2 which is 1. The suspension of the
investigation was carried out for
the contract of employment Claimant was inde nite
months by the defendant, a report
provides for the mode of 2. The suspension was without
was later submitted to the pay.
termination as follows:
disciplinary committee, the
committee in turn sat for two (2) Now, it is the law that
“You may terminate this
days and came out with a report. Suspension is an aspect of the
contract by giving a one (1)
 Support
discipline of a sta by an It can therefore be gleaned from ECOBANK NIGERIA PLC
employer and by IMONIKHE V the above that suspension is not [2014] 47 NLLR (PT 151) 33.
UNITY BANK PLC Supra, it is the same with a dismissal. I
uncontroverted that the alleged nd therefore that the defendant The law is long settled as evinced
“Fraudulent conversion of was well within her rights to have in a plethora of case laws/
N12,390,920.00 (Twelve Million, suspended the claimant as an authorities that where an
Three Hundred and Ninety employer has the right to employee is complaining of
Thousand, Nine Hundred and discipline any erring employee in wrongful suspension, the terms
Twenty Naira) from a customer’s the interest of the organization or and conditions governing his
account is the reason why the institution, although the court in employment has to be construed
Claimant was placed on NEPA V OLAGUNJU [2005] 3 to determine the rights and
suspension with zero pay. NWLR (PT 913) 602 held that it obligations under the contract.
Suspension has been de ned in may be otherwise if the contract See EZENWA V K.S.H.S.MB
several authorities and in Shell of employment either expressly [2011] 9 NWLR (PART 1251)
Pet. Dev. Co. v. Lawson Tack or impliedly rules out recourse to P.89. The legal consequence of
[1994] NWLR PT.545 249 the discipline by the employer. The suspension is determinable from
court de ned it as follows: employer accordingly has the the terms of employment. The
right to suspend an employee employer can also suspend the
“the suspension of an employee when necessary, with or without employee with or without pay or
is not an unusual procedure pay or at half pay if it is so stated at half pay-but if the suspension
taken in order to facilitate the in the contract of employment. In is vindictive then it would be
investigation. Thus an employee the English case of HANLEY V actionable see Mrs.
a ected can hardly PEASE & PARTNERS LTD Abdulrahaman Yetunde
complain of not having been [1915] 1 KB 698 AND Mariam v. University of Ilorin
given a hearing; nor can he MARSHALL V MIDLAND Teaching Hospital
demand that the rules of ELECTRIC [1945] 1 ALL ER Management Board& anor
natural justice should apply” 653, it was held that an employer [2013] 35 NLLR (Pt 103) 40.
cannot suspend its employee
See also Akinyanju v. In the instant suit, Exhibit P2
without pay where there is no
University of Ilorin [2005] 7 does not disclose that the
express or contractual right to do
NWLR (Pt.923) 87 where the defendant can suspend the
so. The rationale is that in
court held that: Claimant without pay. In fact,
suspending an employee without
Exhibit P3 states that:
pay, the employer has taken it
“suspension means to defer, lay
upon itself (Outside of the court)
aside or hold in abeyance, it “…All terms and conditions of
to assess its own damages for the
also means to halt halfway but employment remain as stated
employee’s misconduct at the
not to bring to an end. in your original letter of o
sum which would be represented
Suspension pending er.”
by the wages of the days the
investigation can never amount
employee remains suspended. See
The said o er letter (Exhibit
to a breach of the employee’s
the case of MR PETER
P2) did not make provision for
right to fair hearing.”
OLASUNKANMI ATOKI V.
suspension or give the employer

the right to suspend at all. The the claimant by the defendant is is wrongful and unjusti ed and
main concern of the court is in breach of the contract of he is therefore entitled to special
whether or not the employer has employment, ditto the suspension damages by way of his salaries
the power to suspend the without pay. A person unlawfully from 11th October, 2011- 14th
employee, but the Court will suspended from work can seek August, 2017. I so hold.
nd out if the employer has the redress in court and claim his full
power to suspend and it does this salary see ACB Ltd v. Ufondu The Claimant’s gross salary per
by an examination of the terms of [1997] 10 NWLR (Pt.523) 169 annum is N4,800,000.00 (Four
contract binding them as the CA. In S.P.D.C.V. EMEHURU, Million, Eight Hundred
terms of contract is the basis/ 2006 LPELR 7728 where the Thousand Naira, Only) vide
foundation upon which the plainti was placed on paragraph 25 and 31 of the
contract rests. suspension for about two years statement of facts before other
the court held as follows: deductions, see also paragraph
Parties are bound by the terms of 13 of the additional witness
any agreement between them. See statement on oath. In paragraph
Adetoro v. Union Bank of 12 of the statements of facts the
Nigeria Plc [2007] LPELR-8991 “When an employee is placed claimant averred that the
(CA).A keen perusal of Exhibit on suspension he is placed on claimant was on an annual salary
P2 which embodies the contract hold, he lives day by day in of N4,060,000.00K and this fact
of Employment, and particularly anticipation of either being was admitted by the Defendant
paragraph 2, already quoted recalled or laid o . He in paragraph 2 of the statement
above restates: is not at liberty to utilize his of defence. It is also on record
time elsewhere nor as he that the claimant served on the
‘You may terminate this desires until after closing Defendant a notice to produce
contract by giving a one (1) hours. This was the exact dated 12th of January, 2018 and
month notice or cash in lieu disability placed on the led
while the Bank reserves the respondent by the term of 15th January, 2018, requesting for
right to terminate the page 2 the letter of amongst others the pay slips of
the
employment for misconduct or suspension from duty dated
unsatisfactory performance Claimant for the year 2011,
the 7th June, 1994…to have
before the end of the contract this was never produced in
kept an employee on
period….” court by the Defendant. The
suspension for that long is in
claimant in addition stated in
fact, unjusti ed, cruel and
his evidence in chief vide
unduly oppressive.” – Pg 192
paragraph 33 of his witness
– 193.
The implication of which is, statement on oath dated 14th
parties never envisaged or August, 2017 that:
intended that the employer in this
case may suspend the claimant I therefore nd premised on That I know the Defendant has
for disciplinary purpose not to the above that the claimant’s a penchant of depriving the sta
talk of suspension without pay. It suspension for almost six(6) years of vital information as it relates
then means that the suspension of without pay by the 1st defendant
 Support
to the entitlement, and others therefore hold that based on the calculated from 11th October
when in service. preponderance of evidence that 2011 (the date he was suspended)
the last emolument package of the to 14th August 2017 (the date this
This will lead me to the evidence claimant paid by the Defendant is case was led) at the rate of
in chief of the claimant where he N4,060,000.00 per annum after N4,060,000.00 per annum
led evidence that an unsigned deductions. The position of the calculated as follows:
letter titled “Reviewed law on the standard of proof
compensation package” required to establish a claim for 11th October 2011- 14th August
addressed to him was given to 2017 = 5 years and 9 months =
special damages is as stated in the
69
him by the Defendant, although case of Ezenwa Brothers
Months
he acknowledged receiving the Nigeria Ltd. v. Ona-Jones
letter, the copy given to him was Nigeria Ltd. [2012]
N4,060,000.00 ÷ 12 = N338,
unsigned, he thereafter tendered LPELR9789(CA) Per Jauro, 333.33K p.m
same without objection by the J.C.A “A claim for special
Defendant, this was admitted as damages must be strictly N338, 333.33K X 69 = N23,
Exhibit P14. I acknowledge the proved. I must however add 345,000.00
position of the Law on an that the proof of special
unsigned document that it lacks The Claimant is therefore
damages is not radically di
any probative value, leaving that entitled to a sum of N23,
erent from the general method
aside, the available evidence, 345,000.00 (Twenty three
of proof in civil cases. It is
particularly the Defendant’s million, three hundred and
equally proved on the balance
admission of paragraph 12 of the forty- ve thousand naira),
of probability. See S.N.
claimant’s statement of facts in its the total sum for his salaries
Nwabuoku v. P.N. Ottih [1961]
paragraph 2 of the Statement of from 11th October 2011 to
1 ALL NLR 487, Oshinjirin &
Defence, leads me to the 14th August 2017. I so hold.
Ors. V. Alhaji Elias & Ors.
indisputable conclusion that the [1970] 1 All NLR (Pt.1) 153 at
The Claimant is also claiming
emolument of the claimant is as 156.” See also Thomas & Ors v.
pensions and other entitlements
stated in paragraph 12 of the Shell Petroleum Dev. Coy.
including but not limited to the
statement of Facts. It is worthy of (NIG) Ltd. [2010] LPELR-8626
terminal bene ts, allowance
note that this evidence of the (CA).
and emolument to be calculated
emolument package of the
and paid to the Claimant up till
claimant per annum while he was I therefore nd based on the above
the nal determination of this
in the service of the Defendant reasoning that the claimant has
suit. I nd in respect of the
was neither rebutted or disputed adduced su cient evidence in
above that the claimant is
by the Defendant throughout the proof of this leg of the claim,
entitled to two months’ salary
trial of this case. The Defendant having held that the claimant’s
from the date of ling of
only had this to say through DW1 appointment was validly
this suit to when the statement of
under cross examination by terminated on the 20th of October,
defence was served on the
claimant’s counsel; “I am not 2017, and his suspension without
claimant i.e 20th October, 2017,
privy to any information about pay wrongful, I hold that he is
from the record of this court, that
the salary of the claimant”. I entitled to his emoluments
was the date when the claimant

became aware that his contributory pension, he needs Ind. [2010] LPELR4142 (CA);
appointment has been terminated to approach his pension Mr. Kurt Severinsen v.
vide the Statement of Defence manager. Emerging Markets
served on him. The number of Telecommunications Services
th
days from 14 August, 2017 to Limited [2012] 27 NLLR
20th October 2017 is two months (PT.78) 374 NIC. There is no
and six days is calculated as The defendant has not denied that evidence before me to support
follows: the Claimant was on contributory the leg of the claim seeking pre
pension and therefore entitled to judgment interest, the claim
N338, 333.33K p.m x 2 his contributory pension with his therefore fails. I so hold.
(months) = N676,667.00K pension managers, he is therefore
advised to approach his pension The issue of special damages for
Six (6) days
manager for his entitled pension. embarrassment, harassment,
= N67, 667.00K
However on his other intimidation and psychological

TOTAL entitlements, the position of the trauma as well as general

= N744,334.00K law is that: damages fails as the position of
the law is that a claim for
N23, 345,000.00K + Dismissal carries infamy and damages is not normally
N744,334.00K = N24, deprives the dismissed entertained in employment cases,
089,334.00K
employee of bene ts while and the only award the court can
termination of employment make to an employee are his
TOTAL SUM = N24,
does not. See Abomeli v. NRC accrued rights and salaries under
089,334.00K (Twenty four
Supra. in the instant suit, I the contract of employment See
million, eighty nine thousand,
nd the Claimant is not entitled to Ezenduka V.ANMMCO &Ors
three hundred and thirty four
any terminal bene ts, 2016 N.L.L.R Part 225, Pg. 123
naira).
allowances and emolument apart NIC @142. I therefore nd that
The total entitlement of the from the sum already granted the claimant having been granted
claimant is therefore earlier in this judgement, after his accrued rights in this case is
N24,089,334.00K (Twenty four 20th October, 2017 when he was not entitled to any other
million, eighty nine thousand, dismissed by the defendant. I so damages, I so hold.
three hundred and thirty four hold.

naira) The claimant also sought an

On the Claim of 35% interest Order of Court compelling the
In respect of his other until Judgment is given and 21 % Defendant to issue him with a
entitlements and pension interest from day of Judgment certi cate of discharge from
contributions. DW1 under cross until the entire sum is liquidated, his employment, the defendant
examination on the 14th of May, it is pertinent to note that pre- having investigated the case of
2018 testi ed as follows: judgment interest must not only gross misconduct levied against
be pleaded but must be strictly the claimant, invited him to its
– In a dismissal, the party proved, while post judgment disciplinary committee and
is not entitled to any bene interest is discretionary See deemed it necessary to terminate
t, but when it comes to Farasco Nig. Ltd & Anor v. PZ
 Support
his employment vide Exhibit B1
for gross misconduct, which came
to the notice of the claimant on
20th October, 2017. The claimant
cannot deny this fact having been
put on notice in by the statement
of defence in this suit. Exhibit B1
remains a letter of dismissal and
this leg of the claim is super
uous and therefore fails as the
employment stands determined as
at 20th October. 2017. I so hold.

It is in the light of all the above

that I hold in all that the
Claimant’s claims succeed in part
and for the avoidance of doubt I
declare and order as follows:

1. That the suspension without

pay of the claimant is
wrongful.
2. That the Claimant is entitled
to a total sum of N24,
089,334.00K
(Twenty four million, eighty nine
thousand, three hundred and
thirty four naira)
as his emoluments from 11th
October 2011 to 20th October,
2017 .

3. That the dismissal of the

claimant by the defendant is
valid.
4. I make no award as to
damages.

I make no order as to costs.

Judgment is accordingly entered.