By Stephen Azubuike
Introduction
You might have been approached by someone to stand as a referee for the purpose of his or her employment. In this regard, you may be contacted to fill and sign a reference form.
What happens when such a person defrauds or commits a crime against the employer? Are you liable in your capacity as referee? What is the legal status of such reference form?
The Court recently answered these questions in the interesting story below involving Heritage Bank and Mrs. Adebomi Motunrayo Orogun.
The Story
Sometime in the year 2014, Mrs. Orogun was approached by one Chukwunenye Esther Nkechi (Nee Arinze), a staff of Heritage Bank, who informed her that she needed a reference to be submitted to the Bank for the purpose of her confirmation as an employee of the Bank.
Mrs. Orogun had known Esther Nkechi since 2010, the year she met her upon joining RCCG Christ Chapel Parish. At the material time, Nkechi was the Leader of the Good Women’s Fellowship in the Church. Mrs. Orogun and Nkechi were not particularly close but they related quite cordially as Church members and fellows of the Good Women’s Fellowship.
In view of the above background, Mrs. Orogun filled the Bank’s Employee Reference Form for Nkechi without any hesitation. In filling the Form, Mrs. Orogun clearly stated that Nkechi was known to her as a “friend and church member” for the said period of four (4) years (2010-2014).
Nkechi was later alleged to have fraudulently diverted the sum of about N33.4 Million belonging to a customer of the Bank sometime in 2018 and disappeared into thin air.
Aggrieved, the Bank turned to Mrs. Orogun in order to recover the alleged stolen funds. Sometime in 2019, Mrs. Orogun was invited by the Nigeria Police Force, Area “A” Command (Lion Building), Lagos Island, Lagos for interrogation based on a report said to have been lodged by the Bank against her.
Mrs. Orogun made it clear that she knew absolutely nothing about the alleged fraudulent diversion of funds by Nkechi and also, that she only signed the reference form (to the best of her knowledge and belief) and that she did not give any guarantee or indemnity, and never intended to give any. Unfortunately, the Bank and the Police insisted on harassing her.
As a result, Mrs. Orogun instructed her lawyers to sue the Bank and the Police. Suit No. NICN/LA/502/2019 – Mrs. Adebomi M. Orogun v. Heritage Bank & IGP was instituted at the National Industrial Court, Lagos Division, against the Bank and the Police. She contended that the Bank’s Reference Form (Exhibit A) which she filed on behalf of Nkechi does not amount to a guarantee and/or indemnity and as a result, she was not liable to repay the money allegedly stolen by Nkechi. She also argued that she did not commit any criminal offence as to warrant the harassment by the Police.
The Reference Form in question was never meant to work as a Guarantee Form, as there was absolutely nothing in the body of the Form suggesting that the Form was anything more than a mere reference form.
Mrs. Orogun contended that a reference form is not the same as a surety form usually signed by persons standing as sureties for an accused person facing a criminal investigation. While such surety would be undertaken to produce the accused person whenever called upon (or forfeit the surety bond), a referee who signed a reference form, without more, is not under such obligation to produce the employee being referenced. Mrs. Orogun concluded that the threats by the Bank and the Police that she should produce Nkechi or be charged to Court were rather too unfortunate, as same was nothing but an arbitrary show of power.
In a Judgment delivered in April 2022, Hon. Justice (Prof) Elizabeth Oji agreed with Mrs. Orogun’s contentions and rightly held that an Employee Reference Form is not the same as a guarantee and that she was not liable to refund the Bank the money allegedly stolen by Nkechi.
Conclusion
The Judgment is welcome. The Employee Form does not amount to a guarantee or indemnity. Nkechi remains primarily responsible to answer to any allegation, whether civil or criminal, that may be leveled by the Bank or any other person against her based on her employment in the Bank.
This article was first published on May 2, 2022, as “Does Employee Reference Form Amount to a Guarantee Or Indemnity?” by https://stephenlegal.ng/does-employee-reference-form-amount-to-a-guarantee-or-imdemnity/
Stephen Azubuike is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies, and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
