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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI. O.O DATED 29TH OF SEPTEMBER, 2015 SUIT NO: NICN/LA/627/2013 BETWEEN MRS JUSTINA AYOADE OLASIMBO FOLAMI - CLAIMANT AND UNION BANK OF NIGERIA -DEFENDANT -DEFENDANT REPRESENTION- O.O Ajayi with him is O.R Olubanjo for the claimant Yomi Adeniran with him are Mrs. A.O Adekoya; Anyalewa Onoja (miss) for the defendant JUDGMENT The claimant on the 29th of November, 2013 filed a complaint against the defendant claiming the following reliefs: 1. A DECLARATION that the purported dismissal of the claimant by the defendant from its employment on the 4th day December, 2009 by the letter dated 2nd December, 2009 without any panel to try the claimant is wrongful, null and void and of no legal effect whatsoever, 2. AN ORDER directing the defendant to reinstate the claimant back to her employment as Assistant Manager complemented with promotions and be paid the gross annual pay as arrears of salaries and allowances in the sum of N6,000,000.00 per annum from the 4th day of December, 2009 until his reinstatement. IN THE ALTERNATIVE 3. AN ORDER directing the defendant to pay to the claimant arrears of gross annual pay for salaries and allowances in the sum of N6,000,000.00 per annum from the 4th day of December,2009 until judgment is given. 4. General damages for wrongful dismissal of the claimant by the defendant on the 4th day of December, 2009 without any payment and embarrassment caused the claimant without consideration for the 25 years of unbroken meritorious service by the claimant to the defendant. 5. Cost of this action. It is the claimant's case that her dismissal was predicated on a query issued to her for the housing loan she was entitled to when she applied for same and was granted. By a memo dated 17th of November, 2008 the defendant alleged that it did not approve the claimant’s housing loan. The claimant replied on the 18th of November, 2008 stating that the loan was processed normally through the branch where the claimant served and same was approved by the defendant’s human resources department and she gave the defendant her bank accounts as demanded. That she carried out all duties assigned to her without any hitch in service of the defendant for 25years until she was dismissed for an unsubstantiated claim for gross misconduct on the 12th of March, 2010. That upon her dismissal, she wrote a letter of appeal but the defendant refused to respond to it. She instructed her solicitors to do a formal letter of demand to the defendant but the defendant still refused same. Claimant continues that the defendant pays her a gross annual salary of N6,000,000.00 broken into the following; Basic salary- N1,500,000.00 Transportation – N 600,000.00 Housing/Rent- N 1,200,000.00 Lunch –N 260,000.00 Utility (including gas)- N237,500.00 Tea- N 90,000.00 Furniture- N 300,000.00 Education-N200,000.00 Wardrobe – N100,000.00 Domestic Staff- N300,000.00 Entertainment- N80,000.00 Passage- N460,000.00 13th month salary- N125,000.00 Leave pay-N240,000.00 Pension Contribution– N247,000.00 Claimant states further that the defendant did not set up a panel to try her over the alleged misconduct and she was not paid her entitlement after her dismissal. The claimant during trial testified for herself as CW and adopted her sworn deposition which is in all fours with her averments as summarized above. She tendered documents which were admitted in evidence and marked as Exhibits JA1-JA9. It is the evidence of the claimant under cross examination that she attached a quotation for repairs she wanted to carry out with the loan she requested for. She continued that the procedure for obtaining staff loan is by first filling out a form i.e. exhibit JA3 and hand it over to the accountant of her branch, Accountant will in turn vet it before sending it to the human resources department and after management approval it shall revert back to the accountant for release and same booked for monthly deductions. She stressed that the loan was approved and deductions commenced from her salary before her dismissal by the defendant. She admitted that she had existing loans before the housing loan was granted to her. Claimant also admitted that she was queried with respect to the housing loan on the 17th November, 2008 and responded to same on 18th November, 2008. According to her, it is not permissible to draw on unapproved loan. She asserts that she disclosed the truth to the defendant as regards the loan she obtained which is for a repayment period of 20 years. The defendant denying the averment of the claimant stated that the claimant was dismissed on the 02/12/2009 and not 04/12/2009. That the claimant obtained a loan of N960,000.00 on 05/09/2008 which she was not entitled to through an unauthorized source from the defendant. It was further averred that upon investigation it was discovered that the said loan obtained by the claimant was not recorded in the defendant’s records as the claimant did not submit the necessary and requisite original title documents relating to the housing loan application as required by the letter dated 17/11/2008 to the defendant’s human resources department for the purpose of perfecting a mortgage on the property in accordance with defendant’s due procedure and thus same was not approved by the defendant. That the claimant obtained the said loan through the collision of staff of the defendant who were engaged in illegal arrangement of manipulated loans. That the claimant manipulated the repayment period from usual 48months to 144months. Defendant traversed that the claimant was interviewed by a panel of inspection team and afforded the claimant the opportunity to defend herself against the query issued her with respect to the alleged gross misconduct leveled against her. She was given ample opportunity to regularize the loan. Defendant continued that the loan of N960,000 was a house loan that must be utilized for the purpose for which it was granted, the claimant used the said loan which was granted for the purpose of buying a house to repair an existing house. That the claimant’s dismissal is proper and the defendant is not obliged to pay any salary and or benefit to the claimant after her dismissal. Its urged the court to dismiss the claimant’s claims as same is frivolous and discloses no reasonable cause of action. The defendant during trial testified through its Senior Manager in its Human Resources department, one Benjamin C. Okorie as DW who tendered a document which was admitted and marked as Exhibit BO1. DW stated under cross examination that the claimant was not reported to the police but her case was internally handled as it is the practice in the defendant's company. According to him, the defendant set up a disciplinary committee to investigate the claimant's illegal manipulation of loan and the panel found her guilty of obtaining loan through fraudulent means. DW affirmed that the claimant was referred to in exhibit BO1 as a member of the union. The defendant on the 25th of September, 2014 filed its written address by framing two issues for the court’s determination; 1. Whether the Claimant's dismissal was unlawful?; and 2. Whether the Claimant is entitled to the reliefs sought? On issue one, learned defence counsel submitted that an employer is at liberty to dismiss an employee for gross misconduct. He cited the case of WILBROS NIG. LTD&ANOR. VS MACAULAY [2009] LPELR-8507; EZE V. SPRING BANK PLC [2011] 12 S.C. PT.1 PG. 173; “An employer is entitled in such employment to dismiss an employee for misconduct. Misconduct is of varying degree. It cannot now be disputed that in a mere master and servant relationship, the servant may obviously be dismissed for dishonesty or fraud in his employment” Continuing, counsel submitted that in determining whether the Claimant's dismissal was lawful or otherwise, it is vital to look at the principles guiding the dismissal of an employee and the court in plethora of cases has decided on what amounts to fair hearing. He cited the case of CHIRS EHIKIOYA EIGBE V NIGERIAN UNION OF TEACHERS [2007] LPELR-8310 held that: “The issue of fair hearing under our Constitution simply implies that before any final disciplinary action is taken against a person, he is first and foremost confronted with whatever allegations his accusers have against him and he is given a reasonable time to prepare for and present his defence either orally and or in a written form before his accusers” Counsel posited that the Supreme Court in IMONIKHE V. UNITY BANK PIC [2011] 12 NWLR (PT. 1262) 624 held that a query given and answered, satisfies the requirement of fair hearing. He also posited that it is trite that an employee may be dismissed with or without reason. He cited in support the case of ACB PLC V. NBISIKE [1995] 8 NWLR (PT. 416) 725, it was held that an employer, when he dismisses his employee, need not allege any specific act of misconduct on the employee's part as the ground for the dismissal. Counsel submitted that the Claimant applied for Housing Loan of N960, 000.00, this according to the defendant is a clear deceit as this amount could not possibly buy a House. Exhibit JA3 stated that "The loan is to be utilized for the purpose stated." From Staff Loan Application i.e. Exhibit JA3, it is clear that there are many types of loans available to staff of the Defendant, but when one is granted, it must be utilized for the purpose for which it was granted. From the evidence before the court the Claimant took House Loan (Loan Code 001) but did not apply the loan to buy a House, instead the Claimant applied the money to renovate or repair a property, when there is provision for House Repair Loan (Loan Code 003). This results in violation and dishonesty on the part of the claimant to the terms of the grant stated in Exhibit JA3, which require that the loan is to be utilized for the purpose for which it was granted. Thus this entitles the Defendant to dismiss her. Counsel stated that the Claimant under cross examination gave evidence that she took the said housing loan to repair her house. Counsel stated that it is a term of the grant of the loan as stated in Exhibit JA3, that: "If the loan is for a house, in addition to the legal mortgage over the property. The property is to be insured against the usual risk under Fleet Insurance Scheme with the Bank's, interest noted; and Group life Assurance Policy taken for N..................... deposited with the Bank together with group life Assurance policy as well as Annual Receipts for payment of premium. Where the loan is to purchase property being sold by Government, a letter of undertaking must be obtained from relevant Government agency to the effect that it will submit title documents to property direct to the Bank." The Claimant failed to comply with the above-quoted term of the grant of the loan by not obtaining a letter of undertaking from LSDPC that the Corporation will submit the title documents to the property direct to the Defendant Bank. The Claimant was issued a query as regards this issue and she responded to same, before she was dismissed and this was not disputed by the claimant. Defence counsel cited the case of IMONIKHE V. UNITY BANK PLC, supra, and argued that in determining whether a dismissal is lawful or otherwise, recourse must be to the terms of the contract regulating the employment relationship to find out if the employee was given an opportunity to be heard. That it is trite that the employee who complained of wrongful termination or dismissal of his employment must tender in evidence his letter of employment and then prove in what manner the terms were breached. That the Claimant alleged that she was wrongfully dismissed failed to plead or place the terms of her contract of service before the court to enable the court determine wrongfulness or otherwise of her dismissal, then her claim must fail. He cited the case of AFRIBANK (NIG.) PLC V OSISANYA [2000] 1 NWLR (PT. 642) 599 32, and submits that she failed to discharge the burden of prove placed on her. Counsel urged the court to discountenance the Claimant's prayer for a declaration that her dismissal is wrongful, null and void and of no legal effect whatsoever. It is the submission of the defence on issue two, that Claimant is not entitled to reinstatement. He cited the case of FIRST BANK OF NIGERIA PIC V. MR. EFOBI EFFIONG BAM [2012] LPELR-4160; SALAMI V. UNION BANK OF NIGERIA PIC. Consequently, counsel urged the court to refuse the Claimant's claim for an order of re-instatement as same is not the position of the law. It is the submission of the defence that claimant is not entitled to claim for arrears of salaries and allowances. He cited the case of ALAO V. V.C. UNILORIN [2008] 1 NWLR (PT. 1069) 421 AT P. 466. PARAS. F-G, where the court per Sankey J.C.A. held thus: "Claims for salaries, emoluments, Allowances, and other benefits accruing to an officer are in nature of special damages for which strict proof is required. In the instant case, the appellant's claim for salaries, emoluments, allowances and reimbursements was a claim for special damages. However, there was a clear dearth of proof in the evidence presented by the appellant at the trial court on the claims." He stated that it is trite that a claim for salaries is a claim for special damages which must be specifically proved. He cited the case of RENE ANTOUN &ANOR. V. BENSON OGHENE LPELR 8502 [2012] and posited that Claimant did not list her claim for salaries nor prove same. Counsel urged the court to so hold. Counsel contended that the cost claimed by the claimant is not the one that follows event but a relief on its own which must be supported by averment in the pleading and the Claimant did not plead or place any fact in the Statement of Fact before the Court in support of the claim for costs. He cited the cases of KEYAMO V. LSHA [2002] 18 NWLR (PT. 799) 605 AT 615; MOJEKWU V. MOJEKWU [1997] 7 NWLR (PT. 512) 283 AT 367. The Claimant failed to lead any evidence at the trial in support of the claim and there is no oral or documentary evidence placed before this court at trial by the Claimant in support of this claim contrary to Section 135 of the Evidence Act, 2011.That the Claimant who asserts that she is entitled to the claim or relief has a duty in law to prove his entitlement to the relief. That the Claimant has failed to discharge the onus placed on her. Counsel urged the court to so hold and accordingly dismiss the claims. The claimant on her own part distilled two issues in her final written address filed on 15th October, 2014 for the just determination of the case as follows; 1. Whether by virtue of Section 36 (1), (3), (4), (5), (6) and (12) of the 1999 Constitution of the Federal Republic of Nigeria, only a court of law or a judicial tribunal can competently hear and determine a criminal charge against the claimant. 2. Whether in any event, where both parties agree that the claimant is an employee of the defendant, the claimant has made out valid grounds for entitlement of the claims contained in her pleading. On issue one, learned claimant's counsel contended that the decision of the defendant to terminate her employment based on an alleged probe in absence of a criminal offence is unconstitutional and null and void. That the panel set up by the defendant rather than handle the case, should have had recourse to the court since the matter is that of a criminal nature and can be competently handled by the courts or a judicial tribunal by virtue of Section 36 (1), (3), (4), (5), (6) and (12) of the 1999 Constitution of the Federal Republic of Nigeria. Continuing claimant contended that the claimant in evidence stated that she was never invited nor did she face any probe panel and was never afforded the opportunity to defend herself before her employment was terminated based on gross misconduct on the 2nd of December, 2009. She cited the case of ADENIYI V GOVERNING COUNCIL YABATECH [1993] 6 NWLR (PT 300) P426 AT P. 450-451 PARAS G-H PER KARIBI WHITE JSC. Counsel stated that there is a likelihood of bias against the claimant as the defendant is both the judge and the victim in the issue. He cited the case of YESUFU AMUDA GARBA & ORS V UNIVERSITY OF MAIDUGURI [1986] ANLR 149. On issue two, counsel submitted that the defendant issued her a letter of query dated 17th November, 2008. She replied the letter on the 18th, November, 2008, 14th December, 2009 and 6th of June, 2011 wherein she contended that the loan were approved through the defendant’s Human Resources department in accordance with the defendant’s loan procedure and that her termination of employment by the defendant is wrongful, null and void as the defendant breached the rules of natural justice. Counsel also submitted that the claimant is entitled to be paid her terminal benefits from 2nd of December, 2009 and the dismissal of the defendant’s tribunal is invalid. He cited the case of UTC (NIG) LTD V CHUKWUNEKA NWOKURUKA [1993] 3 NWLR (PT 281) P. 295. Counsel submitted that the defendant has failed to justify the criminal allegation of fraudulent manipulation of its record as posited in its letter of dismissal. Counsel posited that the claimant having served the defendant for over 25 years was a confirmed staff of the defendant bank. Counsel also posited that if the complaint against the claimant was that she was guilty of misconduct, then she must be heard before deciding that she is guilty. That it is on record that the claimant was not heard by the panel allegedly set up to try her for misconduct thus making her termination void. He cited in support the case of IGWILLO V CENTRAL BANK OF NIGERIA [2000] FWLR (PT 18) P 265 RATIO 1. Counsel stated that contrary to section 167 of the Evidence Act cited by the defendant, it allows the court to draw inferences of fact from the surrounding circumstances of the case. Counsel urged the court to distinguish this suit from cases cited by the defendant and discountenance the arguments of the defendant and grant the claimant’s reliefs. Upon a careful consideration of the processes filed in this case, the submissions of counsel to both parties in their respective written addresses. In my view, the issues for the just determination of this case are as follows; 1. Whether the dismissal of claimant from the employment of the defendant was wrongful; and 2. Whether the claimant has proven her case to warrant granting the reliefs sought. It is the contention of claimant that her dismissal was predicated on a query issued to her for the housing loan she was entitled to when she applied for same and was granted. That she was issued a query on the 17th of November, 2008 wherein the defendant alleged that it did not approve the claimant’s housing loan. The claimant replied on the 18th of November, 2008 stating that the loan was processed normally through the branch where the claimant served and same was approved by the defendant’s human resources department and the claimant gave the defendant her bank accounts as demanded. The defendant in response to the above posited that the claimant was dismissed on the 02/12/2009. That the claimant obtained a loan of N960, 000.00 on 05/09/2008 which she was not entitled to through an unauthorized source from the defendant. It averred that upon investigation it was discovered that the said loan obtained by the claimant was not recorded in the defendant’s records as the claimant did not submit the necessary and requisite original title documents relating to the housing loan application as required by the letter dated 17/11/2008 to the defendant’s human resources department for the purpose of perfecting a mortgage on the property in accordance with defendant’s due procedure and thus same was not approved by the defendant. That the claimant obtained the said loan with the collision of staff of the defendant who were engaged in illegal arrangement of manipulated loans. Defendant averred that the claimant was interviewed by a panel of inspection team and was afforded the opportunity to defend herself against the query issued her with respect to the alleged gross misconduct leveled against her. She was also given ample opportunity to regularize the loan. It is pertinent at this stage to first address a germane issue raised by the defence counsel in its address, which is that the claimant failed to prove her relationship with the defendant by her failure to tender her employment letter or any other relevant document in prove of same. The law is long settled as evinced in plethora of case law authorities that where an employee is complaining of wrongful suspension/dismissal from service, it is the terms and conditions governing his employment that has to be construed to determine the rights and obligations of the employee and the employer, See the case of EZENWA V. K.S.H.S.M.B [2011] 9 NWLR (PT. 1251) 89; The apex Court reinforced this position of the law in its recent decision in BUKAR MODU AJI V. CHAD BASIN DEV. AUTHORITY & ANOR [2015] LPELR, 24562,SC. I have carefully perused the evidence before the court, the contract of employment which regulates the employment relationship of both the claimant and the defendant is not before the court as correctly noted by the defendant, as such the court is left with no choice but to decide this case one way or the other and that shall be done in accordance with the position of common law in view of the fact that the defendant is not denying the fact that the claimant was its staff/employee. The law is notorious that an employer before dismissing an employee in a master servant relationship must first satisfy the requirements of fair hearing by bringing the allegation against the employee to his notice and affording him adequate time and opportunity to reply to same. See IMONIKHE V UNITY BANK PLC supra; MR. MASAGBOR CHRISTOPHER ALOAYE JACKSON V UNION BANK OF NIGERIA UNREPORTED SUIT NO NICN/LA/29/2011 DELIVERED ON THE 2ND OF OCTOBER, 2014. By a careful examination of the documents produced before the court, that is exhibits JA1 and JA2, reveal that there is a written interaction between the claimant and the defendant in the form of a query, it was a question and answer session between the agent of the defendant and the claimant. This shows that the claimant was afforded sufficient opportunity to state her case hence she cannot complain of denial of fair hearing. This position was reinforced by His Lordship Rhodes Vivour JSC, in IMONIKHE V UNITY BANK PLC supra, where he stated thus; “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”. It is obvious from all the above facts and case law authorities that the claimant was given fair hearing in accordance with the common law, which is the only law applicable in this instance, in the absence of any contract of employment regulating the relationship of both parties before the court. Now, is the claimant's dismissal wrongful? the defence reason for dismissing the claimant is as stated earlier in this judgment and is to the effect that the claimant fraudulently obtained a loan meant for buying a house for repairs, reliance was placed on exhibit JA3 the staff loan application form filled out by the claimant. To the claimant her dismissal is wrongful in that the defendant approved the loan for her and deductions made for repayment from her salary. I have gleaned through the loan application form, i.e. exhibit JA3 which is not in contention and it is my finding that the loan application code 001 which is a Housing loan was obtained by the claimant in the sum of N960,000.00. It also reveals that the claimant has an outstanding repayment loan. It is apparent on exhibit JA3 that there is a loan for House repair/fencing as code 003. Claimant stated in her reply to the query issued to her i.e. in exhibit JA2 that she applied for additional loan to renovate and add value to her property, whilst in her loan application form exhibit JA3, she applied for a Housing loan, instead of House repair/fencing loan. I absolutely agree with the defendant's position that the claimant's action was deceptive. There is nothing on record to substantiate claimant's claim that the Housing loan was approved and deductions made from her salary for same. What could be deduced from exhibit JA3 is the evaluation of her existing loan and the details of the new application for Housing loan. It is clear as crystal that claimant applied for a loan different from what she was meant to have applied for thereby deceiving her employer. It is on that premise that I uphold the defendant's submission, find and hold that the claimant's action amounts to a gross misconduct and thus justified her dismissal. The situation in this case is well captured in the apex court case of ARINZE V. F.B.N. LTD [2004] 12 NWLR (PT. 888) 663 SC. The apex court held thus- '' In statutory as well as private employment, 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 required under section 36(1) of 1999 Constitution that an employee must first be tried in a court of law. It is therefore erroneous to contend that once crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first'' See also the case of P.C MIKE EZE V SPRING BANK; supra. It is consequent upon all the above and these case law authorities that I find and hold that claimant's dismissal is not wrongful. The claimant in its claims prays the court to reinstate her back to her former employment as Assistant Manager complemented with promotions and be paid the gross annual pay as arrears of salaries and allowances. It is the law of common that in a master servant relationship, where a dismissal has been adjudged to be wrongful or otherwise the only remedy opened to servant is at best an award of damages and not an order of reinstatement as the court to grant an order of reinstatement is to foist a willing employee/servant on an unwilling employer/master. See BERNARD OJEIFO LONGE V FIRST BANK OF NIG.PLC [2015] 5 ACELR 37. It is on this premise that I find and hold that irrespective of whether or not claimant's dismissal is wrongful, she is not entitled to reinstatement for the reasons stated above. I so find and hold. Having held that the claimant’s dismissal is not wrongful, the next issue to determine is, whether the claimant is entitled to her reliefs sought. It is trite law that where an employee is guilty of misconduct, he could be lawfully dismissed summarily without notice and without wages. SEE ANTE V UNIVERSITY OF CALABAR [2001] 3 NWLR (PT 700) 239 CA; MR SEYI M. SULEIMAN V MASTER STROKE PACKAGES LTD SUIT NO NICN/LA/08/2011 UNREPORTED DELIVERED ON THE 13TH OF FEBRUARY, 2012. The claimant was dismissed based on her misrepresentation of facts to the defendant her employer and thus was found to have grossly misconducted herself, which earned her the dismissal. A dismissed staff is not entitle to any benefits. Consequently, the claimant has failed to prove her claims. I resolve this issue in favour of the defendant and hold that the claimant is not entitled to the claims as prayed in her writ. This case is hereby dismissed. I award the cost of N20,000 in favour of the defendant. Judgment is accordingly entered. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE