Download PDF
The claimant’s claims from the respondent are as follows: (1) A declaration that his dismissal was wrongful. (2) Redundancy payment for 368 weeks covering 23 years of service to the respondent in the sum of N74,167 per week totaling N27,293,456.00 (Twenty Seven Million, Two Hundred and Ninety Three Thousand, Four Hundred and Fifty Six Naira only). (3) Payment of 3 months’ salary of N1,500,000.00 (One Million, Five Hundred Thousand Naira only) for the period of notice of disengagement. (4) The cost of this suit. The claimant also filed along the claim his statement of claim, list of witness, witness statement of oath and list of documents to be relied on at the trial. The respondent in reaction, filed a memorandum of conditional appearance, statement of defence, list of documents and list of witness and an amended statement of defence by order of court. The claimant in response, filed a reply to the statement of defence and reply to the amended statement of defence. The claimant also by leave of the court filed additional list of documents. The case of the claimant by his pleadings is that he was employed by the respondent on 8th July, 1986 as a Clerk. That through hard work and diligence he was severally promoted by the respondent with upward review of his emolument. That he was promoted to Sub-Manager in 2004 and Assistant Manager in 2007 and his compensation reviewed variously, the latest one being on 3rd November, 2008. The claimant averred that he dutifully and diligently performed his duties as Assistant Manager of the respondent’s Lewis Street Branch but was surprised to receive a letter of dismissal from the respondent on 28th December, 2009. That prior to the termination of his employment he never received any query from the respondent either verbal or written in connection with any wrong doing. The claimant averred that he was summarily dismissed by the respondent on 28th December, 2009. That the respondent did not issue any notice to him neither had it paid him his entitlements. He averred that his dismissal is wrongful and oppressive and the respondent’s act has made his redundant. That he served the respondent for 23 years and is entitled to payment for redundancy as stated in the Collective Agreement between Nigerian Employers Association of Banks Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks Insurance and Financial Institutions (ASSBIFI) 2005. The claimant further averred that he is entitled to payment of emolument of 16 weeks for each year of his 23 years of service. That the total emolument payable to him by the respondent is N27,293,456.00 for 368 weeks at N74,167.00 per week for his 23 years. That the total emolument is made up of his basic salary, lunch subsidy, housing allowance and transport allowance. That he is also entitled to 3 months salary being the pay for the period of notice for his disengagement which is N1,500,000 whereof the claimant claimed as per his reliefs in his claims before the court. In its second or further amended statement of defence dated and filed on 20/4/2012, the respondent pleaded that the claimant executed and was given a copy of the document containing his contract of service when the claimant was employed by the respondent. The respondent averred that at all material time to this suit, the claimant was the branch manager of the respondent’s Lewis Street Branch, Lagos. That on 16th June, 2009, during the audit of the said branch by a team of Internal Auditors from the respondent bank’s head office, it was discovered that the claimant was involved in the issuance of IOU’s resulting in misappropriation of the branch’s money in the total sum of N197,000. The respondent averred that an IOU is money used to meet emergencies with the cum of redeeming it on the same day or at most within 24 hours and if IOU is above the branch limit of N10,000, it requires the approval of the Business Development Centre before such cost could be incurred by the branch. That by the respondent’s policy and regulations, an IOU must be retired within one working day i.e. 24 hours. That on the 16/6/2009 when the said team of auditors visited the respondent’s Lewis Street Branch headed by the claimant, the auditors discovered that the claimant issued and or approved the issuance of seven IOUs bearing dated between August 2008 and April 2009 in the total sum of N197,000 which were unretired. The respondent further averred that the seven IOUs are the following: (i) Undated IOU in the sum of N30,000; for the purchase of fan blade for 60 KVA Branch’s Generating Set signed by A.Y. Adeyombo. (ii) An IOU dated 18/8/2008, in the sum of N22,000 for the purchase of Radiator for the Branch’s car signed by A.A. Ariba. (iii) An IOU dated 22/9/2008, in the sum of N30,000 for the purchase of Radiator for the Branch’s car signed by A.A. Ariba & A.Y. Adeyombo. (iv) An IOU dated 12/11/2008, in the sum of N20,000 as expenses on the Branch’s 60 KVA Generating Set signed by A.A. Ariba & A.Y. Adeyombo. (v) An IOU dated 12/3/2009, in the sum of N20,000 for the purchase of diesel for the Branch’s 60 KVA Generating Set signed by A.A. Ariba and A.Y. Adeyombo. (vi) An IOU dated 18/4/2009 in the sum of N25,000 for the repair of turbo engine signed by A.A. Ariba. (vii) Undated IOU in the sum of N50,000 for the burial of the BDC Manager’s father signed by A.Y. Adeyombo. That the claimant single handedly signed two of the IOU’s in the total sum of N47,000 and jointly signed four of the IOU’s in the total sum of N70,000 with his Operations Manager. That some of the IOU’s were held for 10 months in breach of the respondent’s banking practice and regulations which stipulated that an IOU must be retired within 24 hours. The respondent further averred that the claimant breached the respondent’s rules and regulations by failing to seek and obtain G14 approval from the BDC in respect of all but one of the IOU’s. That the claimant provided fictitious invoices and personally authenticated all entries passed with the fictitious invoices to retire the said IOU’s. That all the entries passed for which the IOU’s were purportedly issued to the claimant. That the claimant in violation of the respondent’s policy and regulations when he approved and authorized the released of an undated IOU for the sum of N50,000.00 and authorized the release of the said sum from the respondent’s fund for the burial of the BDC Manager’s father and retired same with fictitious invoices/entries for the purchase of stationery items. That the claimant released/utilized the said respondent’s money without approval or authorization and for a purpose which is connected with the respondent’s business for which the respondent’s fund could be legitimately applied. The respondent further averred that although the said undated IOU for the sum of N50,000 was signed by one Mr. A.Y. Adeyombo, the said Mr. A.Y. Adeyombo issued the IOU on the claimant’s instruction. That Mr. A.Y. Adeyombo acted on the claimant’s instruction in issuing the IOU was confirmed by the claimant himself when the claimant stated that the decision to release the respondent’s money of the burial of the BDC Manager’s father was reached in Manager’s meeting with the BDC Management in April 2009. Furthermore, the respondent averred that the claimant also obtained and used split fictitious invoices to retire the IOU for the sum of N22,000.00 that ought to have been retired with the entry 10/11/2008 for the sum of N16,000.00 following approval of BDC on G14 No. 49/08, thereby obtaining payment twice with the IOU. That by the respondent’s rules and regulations the claimant as the Branch Manager is charged with and responsible for the management of the entire affairs of the said branch. The respondent denied that the claimant was summarily dismissed as alleged. That in line with the respondent’s policy, the claimant was given ample opportunity to defend himself. That the claimant appeared before a Disciplinary Committee where he defended himself in writing. The respondent averred that the claimant was dishonest, unfaithful and breached the rules and regulations of the respondent in his dealing in respect of the aforesaid IOU’s which entitles the respondent under the claimant’s contract of service to dismiss the claimant from service. That the claimant is not entitled to any notice or to payment of any entitlement having been validly dismissed from service in line with the terms of his contract of service. That the dismissal of the claimant from service by the respondent was valid and in line with the claimants contract of service, the respondent’s policy and the law. That the claimant could not possibly have been rendered redundant by the lawful action of the respondent. The respondent averred that the claimant is not entitled to redundancy payment as alleged. That the alleged Collective Agreement between Nigeria Employers Association of Banks, Insurance and Allied Institutions and the Association of Senior Staff of Banks Insurance and Financial Institutions 2005 is not applicable to the relationship between the claimant and the respondent. That the claimant is not entitled to payment of any emolument having been validly dismissed in line with the terms of his contract of service. The respondent averred that the figures or amounts stated or claimed by the claimant in paragraph 14 of the statement of facts are incorrect, false, untrue because the claimant is not entitled to the amounts stated or claimed in the said paragraph or to any amount at all. Furthermore, that respondent averred that the make up of the claimant’s total emoluments and pay exit stated in paragraphs 15 and 16 of the claimant’s statement of facts is incorrect, false and untrue. In response to paragraphs 17 and 18 of the claimant’s statement of facts, the respondent avers that the claimant is not entitled to 3 months salary in the sum of N1,500,000 as claimed or to 3 months disengagement notice. The respondent averred that the dismissal of the claimant is valid and so the claimant is not entitled to the reliefs claimed in this action. That the claimant is equally not entitled to redundancy payment as he was validly dismissed from the respondent’s employment. The respondent contended in conclusion that the claimant’s claim is misconceived, speculative, frivolous, unmaintainable and an abuse of court process and should be dismissed with substantial cost. In reply to the second amended statement of defence, the claimant responded that contrary to the respondent’s averment in its statement of defence, the respondent awarded him a certificate of loyal and faithful service after ten years of meritorious service for the respondent. The claimant denied that the respondent gave him any document containing his contract of service. The claimant averred that he is entitled to a notice for a period of three months for persons on his level before his employment can be determined. The claimant also denied that he was involved in the raising of IOU. The claimant further replied that he was not formally or informally charged or accused of committing any offence relating to IOU. That what transpired was a response to questionnaire passed to him by the Internal Auditors who sought clarification on the operation of IOU’s at the respondent’s branch where he was Assistant Manager. He denied that he did not at any time appear before any disciplinary panel or body set up by the respondent to investigate any act or misconduct against him in relation to issue of IOU at his branch. That the facts stated in the statement of defence in relation to the IOU’s were concocted by the respondent who as a result of being classified as on the distressed banks by the Central Bank of Nigeria which led to the change of its management. That the respondent in its attempt to downsize its staff dismissed him wrongfully and now concocted the story of IOU’s by the new Management to dismiss him. That the respondent also did not comply with the provisions of Article 4 (iv) of the Procedural and Main Collective Agreement, which is applicable to both parties. The claimant averred that the defence of the respondent is frivolous and an after thought. At the trial, the claimant adopted his witness statement on oath as the sole witness which was sworn on the 17th of October, 2011. The contents of the said written statement on oath of the claimant is on all fours with the statements of facts and so need no repetition. The said deposition was adopted by the claimant on the 5th June, 2012. Under cross-examination, the claimant responded that it is true that he did not commit any wrong but was summarily dismissed by the respondent. He responded that the last position he held was that of Branch Manager of Lewis Street Branch of the respondent. He answered that he has a contract of service with the respondent. That he had worked for the respondent for 23 years. He agreed that his salaries and emoluments were being paid on monthly basis. That he was usually issued with a pay slip which shows the details of his pay. He also answered that his salary components include Basic pay, Housing allowance, Transportation allowance and others are Education allowance, Bonus and Wardrobe allowance. He told the court that at the date of his dismissal he was owing the respondent some amount but that he cannot remember exactly how much he was owing. That his duty as a branch manager is to co-ordinate the branch work, to ensure the staff welfare is taken care of and any other matters that may arise in the course of the work. He answered that operations job is being handled by the operations manager. He answered that IOU’s are exigency used by the bank to settle credits that arise from time to time. He agreed that he issued IOU when he was in the branch. That the IOU’s retirement period ranges from 24 hours to any time approved by the bank. He also agreed that there is a branch limit. He told the court that his branch limit is N10,000 per day. That it is true that when the IOU is above the branch limit, the approval from the Business Development Centre of the respondent is required. That retirement of IOU means you settle it. He told the court that on 16/6/2009, the Auditors came to his branch and wanted to know how the branch spent its IOU. That he was given a questionnaire to answer. He also answered that there were seven IOU’s that were discovered by the auditors on that day. That the value was N197,000. That out of the three IOU’s, he issued three of them. That it is true that by the respondent’s policy, a branch manager cannot use the IOU for issues not connected with the respondent’s business. He agreed that it cannot be used for personal purposes. That assuming the operations manager is around, the branch manager cannot spend the branch’s money without his knowledge. That the seven IOU’s were issued for the banks related issues. He agreed that it is true that one of the IOU’s was N50,000 and was issued for the burial of the Business Development Centres Manager. That it is correct to say that every branch of the respondent has operations manager. The claimant also answered that throughout his tenure as the branch manager of Lewis Street Branch, he had an operations manager. He also agreed that every staff of the respondent including himself owes a duty to the respondent to be honest and to obey all rules and regulations of the respondent. He also agreed that there were seven IOUs that were not retired. There was no re-examination of the claimant witness. The respondent’s witness statement on oath deposed to on 24th April, 2012 is same in content with the respondent 2nd amended statement of defence and so need not to be repeated. The respondent’s witness is Joseph Ojovbo a banker and former head of operations of the respondent’s Lewis Street Branch, Lagos. He adopted his written statement on oath on 12th July, 2012. Under cross examination, the witness answered that he worked at the Lewis Street Branch of the respondent between 2009 and 2011. He told the court that he was the head of operations at Lewis Street Branch from May 2009 to December 22, 2011. He told the court that Mr. Adeyombo was the Operations Manager at the Lewis Street Branch. The witness told the court that he took over from Mr. Adeyombo in May 2009. He also answered that all the IOU’s happen when he was in the Lewis Street Branch in July 2w005 as a Credit Officer in Loans and Advances. That he became the operations manager in May 2009. That he took over from Mr. Adeyombo. That after May 2009 he did not have a firsthand knowledge of the IOUs until May 2009 when he became the operations manager that he got the details. The witness told the court that the claimant appeared before a disciplinary committee. But that he did not know the members of the staff disciplinary committee because they are picked at random even from different branches. He answered that there is a report of the staff disciplinary committee in respect of the claimant but such report will not be available to him. He also answered that the committee that visited the claimant’s branch on 16/6/2009 was not a disciplinary committee. The respondent witness answered that he is not aware if the claimant was issued with a query. He told the court that the period in which the respondent bank can give notice of disengagement depends on the circumstance in which a staff is leaving the bank. That in some instance it can be one month notice, in some cases it can be instant with immediate effect. The witness also said he is not aware that, the period of disengagement for a senior staff of the respondent is three months. The witness denied that the respondent is not one of the distressed banks. He also agreed that Ebong used to be Managing Director of the respondent. The witness also agreed that Mrs. Funke Osibodu the current Managing Director was an appointee of the Central Bank of Nigeria. He said it is not true that she was brought in as a result of the distress in the respondent bank. He also denied that since Mrs. Osibodu came, so many staff have been retired and not sacked. That those who were retired were paid their benefits but those who had skeletons in their cupboard were dismissed. He told the court that those who did things contrary to their contract of employment were dismissed. The witness answered that he is not familiar with anything regarding collective agreement. There was no re-examination of the respondent’s witness. The parties then closed their case. Thereafter the court ordered parties to file final written addresses in accordance with order 19 rule 13 of the National Industrial Court Rules 2007. The respondent formulated seven issues for determination as follows: 1. Whether the claimant can rely on his Reply to the 2nd Amended Statement of Defence having failed to lead evidence thereon. 2. Whether considering the evidence placed before the court at trial, the claimant has discharged the burden placed on him by law to establish that his dismissal by the defendant was wrongful. 3. Whether the claimant can rely on the alleged Collective Agreement between Nigeria Employers Associate of Banks Insurance and Allied Institutions (NEAABIAI) and the Associate of Senior Staff of Banks Insurance and Financial Institutions (ASSBIFI) 2005, in support of his claims before this court. 4. Whether considering the law and the evidence placed before the court the defendant at trial, the dismissal of the claimant was wrongful. 5. Whether considering the law and the evidence placed before the court by the claimant at trial, the claimant is entitled to payment of redundancy benefit. 6. Whether considering the evidence placed before the court at trial, the claimant is entitled to 3 months disengagement notice or to 3 months salary of N1,500,000.00 in lieu of notice, as claimed. 7. Whether the claimant is entitled to the cost of this suit. Arguing issue one, the respondent’s counsel submitted that the claimant did not lead any evidence oral or documentary in support of the facts alleged in Reply to the 2nd Amended Statement of Defence dated 2/5/2012. He submitted that it is trite law that a party is deemed to have abandon facts alleged in a pleading on which no evidence is led. He cited N.A.S Ltd v. UBA Plc [2005] 14 NWLR (pt. 945) p. 416, he submitted that the claimant having abandoned his Reply to the 2nd Amended Statement of Defence by his failure to lead evidence on the facts alleged therein the court ought to disregard the said Reply to 2nd Amended Statement of Defence. He submitted that the implication of the failure of the claimant to lead evidence in support of his Reply to 2nd Amended Statement of Defence is that the issues raised or facts alleged by the defendant in its 2nd Amended Statement of Defence dated 20/4/2012 and evidence led thereon at trial are unchallenged and uncontroverted and accordingly deemed by the claimant. He cited the case of Leadway Ass. Co. Ltd v. Zeco (Nig) Ltd [2004] 11 NWLR (pt. 884) p. Learned Counsel submitted that because of the failure of the claimant to lead evidence on his Reply to 2nd Amended Statement of Defence the following issues raised in the respondent’s 2nd Amended Statement of Defence, the evidence led thereon at trial by the respondent remains unchallenged and uncontroverted: (i) the failure of the claimant to obtain G14 approval from Business Development Centre (BDC) in respect of IOUs which exceeds the branch limit; (ii) the claimant retiring IOUs with fictitious invoices and entries not connected with the purpose for which the IOUs were issued. (iii) issuance of IOU by the claimant for purpose not connected with the respondent’s business. (iv) failure of the claimant to retire IOU within stipulated time. On issue two, the Learned Counsel submitted that there exist a written contract of service between the claimant and the defendant. He submitted that the claimant did not deny the allegation contained in paragraph 4 of the respondent’s 2nd Amended Statement of Defence or controvert the respondent’s evidence that “the claimant executed a document containing his combat of service when he was employed by the respondentâ€. He submitted that the implication of the claimant’s abandonment of his Reply to the 2nd Amended Statement of Defence is that the claimant deems to have admitted the facts alleged in paragraph 4 of the respondent’s 2nd Amended Statement of Defence. That facts admitted needs no further proof citing Ekpemupolo & Ors v. Edremoda & Ors [2009] 8 NWLR p. 166. Counsel submitted that notwithstanding that there is a documented contract of service between the parties the claimant failed to place the contract before the court. That he who asserts an allegation must prove it citing Section 131 (1) of Evidence Act, 2011, Amodu v. Amode [1990] 5 NWLR (pt. 150) p. 356. Fakuade v. O.A.U.T.H [1993] 5 NWLR (pt. 291) p. 47, Francis Katto v. Central Bank of Nigeria [1999] 6 NWLR (pt. 607) p. 390, Morohunfola v. Kwara Tech. [1990] NWLR (pt. 145), Idoniboye-Obu v. NNPC [2003] 2 NWLR (pt. 805) p. 589 at 630. He submitted that the claimant has failed woefully to discharge the burden of establishing the terms of contract of service and that his contract of employment has been wrongfully determined. He further submitted that where parties enter into an agreement which they intend should bind them, the court cannot go outside the terms and conditions stated in the contract. Counsel cited the case of Okomu Oil Palm Co. Iserhienrhien [2001] 6 NWLR (pt. 710) p. 660 to buttress the point that it is not the duty of the employer as a defendant in an action brought by the employee to prove the terms of contract and the manner the contract was breached. That the claimant failed to place the terms of his contract of employment before the court when he failed to tender the contract of employment. He cited the cases of Amodu v. Amode (Supra) p. 356, Eze v. Spring Bank Plc [2011] 18 NWLR (pt. 1278) p. 113 at 149. He submitted that without the said contract of service it is impossible for this court to determine the claimant’s claim as he has not discharged the burden of proof placed on him by law. On issue three, Learned Counsel submitted that collective agreements are generally not enforceable and cannot be a cause of action citing the case of Gbedu v. Itie [2010] 10 NWLR (pt. 1202) p. 282 – 283 (incorrect citation). That for a party to enforce collective agreement certain conditions must be fulfilled as follows: (i) The collective agreement was expressly incorporated into the contract of service of the employee. (ii) The employer is a signatory to the collective agreement. (iii) The employee who seeks to reply on it is a member of the union which signed the collective agreement on behalf of its members. (iv) The employee has approached the union to enforce same and the union has neither refused or given him the permission to approach the court in his personal capacity; and (v) The collective agreement was in existence when the cause of action accrued. He cited the cases of Itodo & Ors v. Chevron Texaco Nig [2005] 2 NLLR (pt. 5) 2000, Texaco Nig Plc v. Kehinde [2001] 6 NWLR (pt. 708) p.224. He submitted that collective agreement standing alone is not binding on an individual employee and the employer unless it is incorporated into the contract of service or adopted as part of the contract citing U.B.N v. Chinyere [2010] 10 NWLR (pt. 1203) p. 471 – 472. Learned Counsel submitted that by the failure of the claimant to place the terms of his contract before the court, it is impossible for this court to know or determine whether the alleged collective agreement was incorporated into or forms part of the claimant’s contract of service as the court cannot speculate on document not before it. He submitted that the claimant did not plead any fact in his pleadings or lead any evidence at trial to establish that the respondent subscribed to the collective agreement or was a member of (NEAABIAI) and the failure of the claimant to establish these facts has made it impossible for this court to determine whether the claimant is a member of the union so as to benefit from the collective agreement. That the claimant failed to establish that he is a member of the signatory trade union to the collective agreement or that he has approached the union with his complaint but the union was not ready to approach the court on his behalf. That the said collective agreement in PART II (SECTION 5) at page 58 states that “It is agreed that this agreement shall come into force and operate from 1st April, 2005 to 31st March, 2007â€. The Learned Counsel submitted that from the facts alleged in the claimant’s pleadings the claimant’s cause of action arose in 2009, when the respondent dismissed the claimant; that the claimant cannot found a cause of action on an expired collective agreement, the agreement having expired before the cause of action accrued. He referred to the case of Texaco (Nig) Plc v. Kehinde [2001] 6 NWLR (pt. 708) p. 224. He submitted that the claimant has failed to satisfy the requirements for the enforcement of the alleged collective agreement. On issue four, Learned Counsel submitted that employer can summarily dismiss an employee who commits an act of misconduct citing Ajayi v. Texaco (Nig) Ltd [1987] 3 NWLR (pt. 62) p. 577. Learned Counsel referred to the respondent’s witness – Mr. Joseph Ojovbo statement on oath dated 24/4/2012 on the respondent’s reason for dismissing the claimant. He stated that the seven IOUs issued and approved by the claimant was filed in court by the respondent as well as the split and fictitious invoices/receipts obtained and used by the claimant. That these documents were not challenged or controverted in any way by the claimant at trial. On the issue of the period of time within which an IOU must be retired, counsel submitted that it is the respondent’s rules and regulations that an IOU must be retired within 24 hours and that the claimant breached the rules when he issued the seven IOUs involved between August, 2008 and April 2009 as he failed to retire the seven IOUs within 24 hours. He submitted that the claimant’s action constitutes an act of gross misconduct for which he was lawfully dismissed. Learned Counsel also submitted that the claimant breached the respondent’s policy when he approved the issuance of an IOU in the sum of N50,000.00 for the burial of the BDC Manager’s business and without the approval or authorization of the respondent. Learned Counsel further submitted that the purpose for which the seven IOUs were issued was different from the purpose for which they were used or utilized and that the claimant retired the IOUs with spurious and fictitious invoices, which have no connection with the purpose for which the IOUs were issued. Counsel submitted that the Lewis Street Branch headed by the claimant has a limit of N10,000.00 in respect of issuance of IOU and that before the branch can issue and incur cost on any IOU that exceeds the branch’s limit, it must obtain G14 approval from the Business Development Centre. That of the seven IOUs approval was obtained for only one of the IOUs. He submitted further that the claimant by failing to obtain the required approval before incurring expenses in respect of the IOUs that exceeds the branch’s limits violated the respondents rules and regulations which constitutes an act of gross-misconduct on his part for which he was lawfully dismissed. On what constitutes gross misconduct he referred the court to the case of Savannah Bank (Nig) Plc v. Fakokun [2002] 1 NWLR (pt. 749) p.560, Azenabor v. Bayero University, Kano [2009] 17 NWLR (pt. 1169) p. 115, Olatunbosun v. NISER [1988] 5 NWLR (pt. 80) p. 25 at 55. He urged the court to hold that the claimant was validly dismissed. On issue five, Learned Counsel submitted that the claimant’s claim for redundancy payment is not only misconceived but lacks support in law and for the court to hold that there is a declaration of redundancy, certain events must have occurred and they include: (i) There is surplus manpower. (ii) The employer must inform the representatives of the union of its intentions to lay off some staff. (iii) The principle of last in first out will be effected. (iv) The employer must take steps to properly compensate the redundant workers. Counsel submitted that the respondent did not declare any of its staff redundant and the burden of proving redundancy is on the claimant but he has failed to prove same. He submitted that an employer can lawfully bring to end the contract of service of an employee for a variety of reasons and where an employee’s employment is determined by one of the mode, he cannot claim any benefits that may accrue from another mode. He cited the case of Isheno v. Julius Berger (Nig) Plc [2008] 6 NWLR (pt. 1084) p. 582. He also submitted that it is an employer that can declare an employee redundant and it is not for an employee to declare himself redundant. That the claim for redundancy payment made by the claimant is not only misconceived but has no basis as he was dismissed for gross misconduct. On issue six, Learned Counsel submitted that the law is that an employee dismissed for gross misconduct loses all benefits and not entitled to the payment of any salary citing the case of Ajayi v. Texaco (Nig) Ltd [1987] 3 NWLR (pt. 62) p. 577, UBN Plc v. Soares [2012] 11 NWLR (pt. 1284) p. 551. On issue seven, Learned Counsel submitted that for any relief to be granted by the court, it must be supported by the averment in the pleading. That the claimant did not place any fact before this court in the Statement of Facts in support of claim for the cost of the suit. He cited the case of Mojekwu v. Mojekwu [1997] 7 NWLR (pt. 512) p. 283 at 307. He submitted that the claimant’s relief for the cost of this suit was made in isolation of supporting facts citing Keyamo v. LSHA [2002] 18 NWLR (pt. 799) p. 605 at 615, Okolo v. UBN Ltd [1998] 2 NWLR (pt. 539) p. 618. He submitted that the claimant has failed to discharge the duty to prove his entitlement to the relief and urge the court to so hold and dismiss the claimant’s claim. The claimant formulated six issues for determination: 1. Whether the summary dismissal of the claimant by the defendant on the ground of misconduct which is capable of depriving the claimant of any benefit whatsoever can be declared wrongful for non-compliance with the rules of natural justice of audi-alteram patem (fair hearing). 2. Whether the tendering or production of a letter of appointment or contract of service is a sine qua non before the court can determine the validity or otherwise of the summary dismissal of the claimant by the defendant. 3. Whether considering the law and the evidence paced before the court by the defendant at the trial the dismissal of the claimant was wrongful. 4. Whether the claimant is entitled to any claims under the collective agreement. 5. Whether the claimant is entitled to payment of 3 months’ salary claimed. 6. Whether the claimant is entitled to the cost of the suit. On issue one, Learned Counsel submitted that by the reason of the summary dismissal on reason of gross misconduct, the claimant was not entitled to receive salary in lieu of notice or gratuity or other entitlements for the 23 years of service to the respondent. Counsel submitted that it is trite law that in case of misconduct the right of the employer to dismiss a worker is universally recognized and the question of notice or damages can also not arise citing the case of New Nigerian Bank v. Obvudiri [1986] NWLR (pt. 29) p. 287. That in the process of exercising this power to dismiss an employee for misconduct the employer must comply with the rules of natural justice citing Adedeji v. Police Service Commission [1968] NMLR 102. He submitted further that an employer who decides to exercise his power to dismiss the employee on ground of misconduct must give the reason for the dismissal of the employee and must prove same citing the case of Johan Nunnink v. Costain Blansevourt Dredging Lumsted [1960] I.L.R 90, Ogunsanmi v. Costan F. Furniture (W.A) Ltd [1961] 1 All NLR p. 826. Learned Counsel referred to the respondent’s statement that the claimant was afforded a fair hearing before a disciplinary committee where he stated his defence in writing before his dismissal submitted that the said document which was a questionnaire was what the respondent charged into the defence purportedly made in writing by the claimant to the effect that it afforded him a fair hearing before his dismissal. That a look at the document will reveal that no reference is made in it as being a response to any allegation of wrong doing against the claimant. He also submitted that no formal or informal accusation of commission of any act of misconduct was made against the claimant for which he was called upon to defend himself before he was summarily dismissed. He cited Adeniyi v. Governing Council Yaba Tech [1993 – 1994] 1 All NLR 1, Aiyetan v. NIFOR [1981] NSCC 277. He urged the court to hold that failure to comply with rules of natural justice by affording the claimant opportunity to defend himself against the grave allegation of financial impropriety before he was dismissed must warrant a declaration by the court that the dismissal was wrongful. On issue two, Learned Counsel submitted that cases are determined based on their peculiar circumstances. Counsel submitted that the cases cited by the respondent on the argument that claimant’s case cannot succeed on the ground of failure to tender contract of service can be distinguished from the instant case. The cases are Katto v. CBN Supra, Western Nigeria Dev. Corp. v. Abimbola (Supra), Morohunfola v. Kwara Tech (Supra), Idoniboye-Obu v. N.N.P.C (Supra), Okomu Oil Palm Co. V. Iserhienrhien (Supra), Amodu v. Amode (Supra) and Eze v. Spring Bank Plc (Supra). Counsel submitted that the cases cited by the respondent either dealt with wrongful termination where the claimants were still entitled to notice and payment of entitlement by way of salary in lieu and matter on whether an employment acquires automatic statutory flavour because the employer is a creation of statute. He submitted that though all the cases cited by the respondent are distinguishable from the present case. Learned Counsel submitted further that a contract of employment can either be in the form of a formal contract or a letter of appointment and that it is erroneous for the defendant to try to give different meaning to the nature or contract of service. He submitted that in the instant case, tendering a contract of service or letter of employment is not a sine qua non in the determination of this suit. On issue three, Learned Counsel submitted that the burden to justify a dismissal is on the master citing the case of Eze v. Spring Bank Plc [2011] 12 SC pt. 1 p. 173, Authur Walters v. Frank Harrison [1922] 4 NLR 73. He submitted that nowhere in the pleadings or evidence did the respondent rebut the evidence of the claimant that he was never issued any query through his 23 years of service with the respondent until the receipt of the letter of dismissal. He further submitted that the respondent who has the onus to justify the claimant’s dismissal has failed to do so by failing to show that rules of natural justice were observed before the claimant was dismissed on the unproven allegation made against him. He urged the court to declare the dismissal of the claimant wrongful. On the fourth issue, Learned Counsel conceded to the argument of the respondent’s counsel that the claimant cannot derive any benefit or make any claims under the collective agreement by virtue of the fact that it expired on 31st March, 2007. On issue five, Learned Counsel submitted that in cases of wrongful dismissal the servant will only be entitled to payment of salary for the period of notice citing the case of N.N.D.C v. Abimbola [1996] NWLR 381 (incorrect citation), Nig. Produce Marketing Board v. Adewumi [1972] 11 S.C 11, Imoloame v. WAEC [1992] 9 NWLR (pt. 265) p. 303. He submitted that taking into consideration the parameters stated in Imoloame’s case three months notice is reasonable in the present circumstance in the absence of any agreement the court can resort to. He further submitted that the claimant is entitled to the three months salary of N1,500,000.00 claimed. On issue six, Learned Counsel submitted that it is trite law that cost follow event and that the claimant is entitled to cost and urge the court to so hold. He submitted that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement citing the case of N.N.P.C v. Klifco Nig. Ltd [2001] 4 SC pt. 1 p. 108. In its Reply on Points of Law dated 12th of October, 2012, Learned Counsel for the respondent reacting to the claimant’s issue one concerning fair hearing submitted that the implication of the abandonment of his Reply to the 2nd Amended Statement of Defence, the claimant is deemed to have admitted that he was given ample opportunity by the respondent to defend himself. Learned Counsel responses to issues 2, 3 and 4 of the claimant’s Final Written Address are on facts and not on law. Reacting to issue 5 formulated by the claimant, Learned Counsel for the respondent submitted that the case of Imoloame v. WAEC (Supra) cited by the claimant will only be relevant if the contract of service between the parties does not contain a provision of length of notice required. He submitted that in the instance case there is a contract of service between the parties. That the argument of claimant’s counsel that the length of notice required for determination of service in the absence of agreement is misconceived and irrelevant to this case as there was an agreement between the parties. On the issue of cost, Learned Counsel submitted that the law recognizes that a party can make a claim for cost in its pleadings but when such claim is made, it has to be established by evidence citing the case of Offshore Const. Ltd V.S.L.N Ltd [2003] 16 NWLR (pt. 845) p. 157. He submitted that a party is required by law to lead evidence in support of a claim for it to succeed. I have carefully considered the processes filed in this case, submissions of counsel and legal authorities relied upon. In my considered opinion, the following issues arise for determination. The issues are – whether the claimant can take advantage of a Collective Agreement between Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEAABIAI) and the Association of Senior Staff of Banks Insurance and Financial Institutions (ASSBIFI) 2005, whether the summary dismissal of the claimant by the respondent on the ground of misconduct is wrongful and whether the claimant is entitled to payment of redundancy benefit. From the facts and evidence before the court, the claimant was an employee of the respondent and was the Manager of the respondent’s Lewis Street Branch. By a letter dated 6th April, 2004 the claimant was elevated to the position of Sub-Manager. Another letter of 3rd November, 2008 enumerated his compensation package as Assistant Manager. The claimant was summarily dismissed by the respondent for gross misconduct by a letter dated 28th December, 2009. The claimant relied on a Collective Agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) to make claim for Redundancy payment for 368 weeks covering 23 years of service to the respondent in the sum of N27,293,456.00 (Twenty Seven Million, Two Hundred and Ninety Three Thousand, Four Hundred and Fifty Six Naira Only). The respondent’s counsel argued that the claimant cannot enforce the said collective agreement because he is not a party thereto and has not demonstrated that the agreement was made part of his employment contract. It is trite that a collective agreement on its own does not give an individual employee the right of action in respect of any breach of its terms unless it is accepted to form part of the terms of employment. This is because, the agreement is not between the employer and the employee, per se and it is trite law that a non-party cannot enforce a contract. It is important to note that the claimant did not exhibit his original employment letter in order to guide the court to know if the collective agreement was incorporated into the employment of the claimant more so that he was not a signatory to the said collective agreement. On the issue of redundancy, I agree with the submission of the respondent’s counsel that the claimant’s claim in that respect is misconceived. Redundancy occurs when workers are laid off due to excess of manpower in an establishment. In other words, redundancy is understood to mean and means the involuntary loss of employment through no fault of the employee, caused by excess of manpower or contraction of available work through causes beyond the control of the employer. In the event of redundancy arising in any establishment and before any employee is declared redundant, the employer must inform the representative of the union of its intention to lay off the excess staff in which case the principle of “last in†“first out†will be applied. Any employee declared redundant shall be entitled to monetary compensation. In the instant case there is no evidence that the respondent declared any of its staff including the claimant redundant, neither has the claimant proved same. The claim of redundancy therefore fails. On the validity of the dismissal of the claimant, the claimant’s case is that before his employment was determined, he never received any query from the respondent before his dismissal. The respondent’s contention is that the claimant breached the rules and regulations of the respondent company by issuing IOUs in excess of the Branch limit of N10,000.00 (Ten Thousand Naira) and that he did not retire the IOUs within 24 hours except on one occasion, and so this amounts to gross misconduct. Equally that the claimant failed to obtain G14 approval from the Business Development Centre of the respondent before issuing IOUs in excess of N10,000.00 (Ten Thousand Naira only). That the IOUs are seven in number issued by the claimant in the total sum of N197,000.00 (One Hundred and Ninety Seven Thousand Naira only). Also that the claimant issued IOU in the sum of N50,000.00 (Fifty Thousand Naira only) for the burial of the BDC Manager’s father which is unconnected to the respondent’s business. Under cross examination the claimant responded that IOUs are exigencies used by the respondent’s Lewis Street branch to settle credits that arise from time to time in the course of daily operations of the branch and that he issued them when he was at the branch as the Manager. The respondent’s counsel had argued that the failure of the claimant to obtain the required approval before incurring expenses in respect of the IOUs that exceeds the branch’s limits violated the respondent’s rules and regulations and this amounts to gross misconduct which attracts dismissal. The claimant on the other hand argued that he was not given fair hearing before he was dismissed. From the evidence before the court, the claimant was only sent a form of questionnaire as regards the general conduct and operations of the branch and the IOUs to which he responded. Though the claimant admitted exceeding the IOU limit of his branch, there is no evidence that a formal query was issued to the claimant. There are various degree of misconduct which can give an employer liberty to dismiss an employee which could be dishonesty or fraud by the employee in his employment, grave and weighty misconduct, dissatisfaction with the employee’s conduct or a case of infidelity. See Savannah Bank (Nig) Plc v. Fakokun [2002] 1 NWLR (pt. 749) p. 544 at p. 560. It is important to state at this point that in this case the said IOUs were used to run the business operations of the Lewis Street branch of the respondent. The respondent did not exhibit any regulation or rules of the respondent before this court which expressly stipulates that the branch limit of its company in respect of IOUs is N10,000.00. Even the questions forwarded to the claimant as well as the answers supplied indicates that the parties in this case were not certain as to whether the N10,000.00 limit existed. Regarding the expenditure of N50,000 for the burial of the BDC Manager’s father, the claimant responded in his evidence that the decision to contribute the said amount was reached in Manager’s meeting with the BDC Management in April, 2009. This the defendant did not lead evidence to the contrary. This in my view means that the claimant did not set out to misapply the respondent’s money. My finding based on the evidence before the court is that the said IOUs were incurred in the course of carrying out the business of the defendant. The said expenditure in my opinion were not fraudulently procured and there is no evidence that the claimant derived any personal gain from the said purchases. Even from the respondent’s averment the said IOUs were used as follows: (1) The sum of N30,000 used for the purchase of fan blade for 60 KVA Branch’s Generating Set signed by A.Y. Adeyombo. (2) The sum of N22,000 for the purchase of Radiator for the Branch’s car signed by A.A. Ariba. (3) The sum of N30,000 for the purchase of Radiator for the Branch’s car signed by A.A. Ariba & A.Y. Adeyombo. (4) The sum of N20,000 as expenses on the Branch’s 60 KVA Generating Set signed by A.A. Ariba & A.Y. Adeyombo. (5) The sum of N20,000 for the purchase of Diesel for the Branch’s 60 KVA Generating Set signed by A.A. Ariba and A.Y. Adeyombo. (6) The sum of N25,000 for the repair of turbo engine signed by A.A. Ariba. The said expenditure as can be seen was incurred for the purpose of carrying out business of the respondent. I therefore wonder why the claimant was dismissed for taking such steps which for all intent and purposes was for the benefit of the respondent. I am of the considered view that what the claimant did was to ensure that the business of the respondent continued to run. It is also in evidence that the claimant has put in 23 years in the service of the respondent. My finding is that the actions of the claimant are not weighty enough to warrant his summary dismissal. The claimant’s emolument per month is in the region of N500,000.00 (Five Hundred Thousand Naira only) and the total sum of the IOUs in question is N197,000.00 (One Hundred and Ninety Seven Thousand Naira only) spent over a period of time which as I have found was applied in the running of the respondent’s business. The claimant is also not indebted to the respondent even as it is the practice in the banking industry. The said amount of N197,000.00 which is the sum of the IOUs incurred by the claimant could have been recovered from the salaries of the claimant even once since his salary per month can conveniently cover the said amount of N197,000.00 more so that there is no evidence that the claimant is indebted to the defendant. In my view the defendant did not show good faith for a staff who has served for a period of 23 years without any evidence of previous wrong doing to be dismissed over issues bordering on expenditures incurred in the running of the defendant’s branch as a branch manager. I view this as an unfair labour practice and an attempt by the defendant to deprive the claimant of his entitlement after working for it for 23 years of his adult life. This kind of treatment should not be allowed if we must build a country where justice and fairness reigns. In the circumstance I hold and declare the said dismissal wrongful as it cannot be justified by any right thinking member of the society that has conscience. I therefore set aside the said dismissal of the claimant and order that the claimant be retired from the service of the respondent with full benefits less any indebtedness or financial claim the defendant may have against him with effect from 28th December 2009. Any such indebtedness or claim be deducted from his entitlements. For all the reasons given above I hereby hold and declare as follows: (1) The claimant is not entitled to redundancy payment. (2) The claimant’s dismissal is hereby set aside. (3) The respondent is hereby ordered to pay the claimant his retirement benefits with effect from 28th December 2009 less any indebtedness or claim against him with immediate effect. (4) The respondent shall also pay the claimant three months salary as notice of retirement. I award N30,000.00 cost against the respondent. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge