MR. OLISAH GERALD CHIDI -VS- Fidelity Bank PLC & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D

DATE: 28^TH MAY, 2018.

SUIT NO.: NICN/EN/41/2017

BETWEEN:

OLISAH GERALD CHIDI CLAIMANT

AND

FIDELITY BANK PLC. & ANOR DEFENDANT

REPRESENTATION:

Danladi Esq. for the Judgment Claimant

A.C.M. Agugbue Esq. for the Defendant

JUDGMENT

The claimant in this action by a compliant dated 14^th July, 2017 and filed on the 17^th July, 2017 sought the following relieves from this court.

An order compelling the defendant to pay the sum of N930,991.66 only being the claimant net entitlement from the defendant upon his resignation from the employment of the defendant.

An order directing the defendants to release the claimants reference to Sterling Bank Plc. The new employer of the claimant.

N50,000,000 general damage.

In support of the claims, the claimant filed his statement of facts and a statement on oath on the 17^th July, 2017 wherein he front loaded documents he intended to rely on in proof of his claim. The defendants filed their joint statement of defence and a witness statement on oath on the 6^th November, 2017 wherein they front loaded documents they intended to rely upon in defence to the claims. The claimant filed a reply to the statement of defence and an additional witness deposition on the 10^th November, 2017. The defendant with leave of court filed an amended their witness statement on oath on the 29^th November, 2017 along with a statement on oath of defendant’s witness. In response the claimant filed a reply to amended joint statement of defence along with additional written deposition of the claimant on the 24^th January, 2018.

The claimant opened his case on the 6^th November, 2017 and testified as the sole witness and closed his case on the 25^th January, 2018. However before the defence case he brought an application to recall his sole witness to tender some documents in evidence.

The claimant Mr. Olisah Gerald Chidi gave evidence as CW1, adopted his two witness depositions and tendered the following documents:

1) Letter of employment dated 23^rd December, 2013 as Exhibit CW1 – A.

2) Letter of resignation of appointment as Exhibit CW1 – B

3) Letter dated 10^th March, 2017 from the Law firm of A.N. Ayamene & Co. Exhibit CW1 –C.

4) Document dated 12^th July, 2017 titled outstanding obligation of Fidelity Bank Plc. Exhibit CW1-D

5) Document titled clearance on ex-staff for the purpose of reference Exhibit CW1 –E.

6) Document titled Re FW: Clearance on ex-staff for the purpose of reference, Exhibit CW1-F. Upon the recall of CW1 on the 25^th January, 2018 the claimant further tendered The letter of resignation of the claimant dated 19^th December, 2016 as Exhibit CW1-G and also credit appraised memo Exh. CW1-H and also Exhibit CW1-I offer of re-structured of loan dated 20^th September, 2016

Exhibit CW1-1D was tendered also through CW1 during cross examination.

The defendants called only one witness Mr. Ikechukwu Odo, the 2^nd defendant who testified as DW1 on the 29^th January, 2018. The witness adopted his witness deposition and tendered the following documents in evidence.

1) Statement of account of J. Collins Expansion Ltd. Exhibit DW1-a

2) Board Resolution of J. Collins Expansion Ltd. Dated 21^st September, 2016 Exhibit DW1-b

3) Exhibit DW1-c (earlier tendered as CW1-1D)

The defendants closed their case on the 29^th January, 2018 and on the 14^th March, 2018, the parties adopted their final written address.

The claimant’s case is that he was employed by the 1^st defendant by a letter Exhibit CW1-A dated 23^rd December, 2013. He resigned his appointment via Exhibit CW1-G on the 19^th December, 2016 and the resignation was approved on the 17^th Febraury, 2017 via Exhibit CW1-B and he became entitled to the sum of N930,991.66k as his end of service entitlement. The 1^st defendant has refused to pay the said entitlement and also refused to issue a Reference Letter demanded by his new employer Sterling Bank Plc. Thus leading to his being asked to stop work by his new employer Fidelity bank. On the other hand the defendant as revealed in their statement of defence contend that the claimant has an unresolved loan facility which as the relationship manager of one of the 1^st defendants client he was under a duty as banking practice requires to recover from J. Collins Expansion Ltd, before the 1^st defendant could pay the claimant the end of service entitlement and also before any reference letter could be sent to his new employer, Sterling Bank Plc. The 1^st defendant premised his defence on Exhibit CW1-B dated 17^th February, 2017, Exhibit CW1-h, Exhibit CW1-I and Exhibit DW1-C

From the facts and the evidence adduced in this case it is the opinion of this court that the issue for determination in this suit is:

a)Whether the claimant can be denied his end of service entitlement in the 1^st relief sought in this suit on the grounds that he failed to recover a debt owed by one of the 1^st defendant customers J. Collins Expansion Ltd. Whom the claimant acted as relationship manager before exiting the employment of the 1^st

b)Whether the 1^st defendant was under a duty to issue a reference letter to the claimant’s new employer Sterling Bank and whether such failure to act has occasioned any injury to the claimant.

First I must note that certain facts are undisputed having regards to the evidence adduced by the parties in this suit. The facts are:

1) The claimant was employed via Exhibit CW1-A on 23^rd December, 2013 until he resigned his appointment on the 19^th December, 2016 via Exhibit CW1-G

2) The resignation of appointment was accepted via Exhibit CW1-B. In this exhibit the 1^st defendant computed and attached the end of service entitlement of the claimant in the sum of N930,991.66k to Exhibit CW1-B.

3) The 1^st defendant has refused to pay the said entitlement and to issue a reference letter as requested by the claimant’s new employer (Sterling Bank).

It is the contention of the 1^st defendant that the claimant was under a duty to ensure the recovery of a facility granted to J. Collins Expansion Ltd. Before he could exit his employment and before his end of service entitlement is paid to him. In his evidence in chief the defendants in paragraph 5 and 6 of 2^nd defendant witness statement on oath stated that the claimant was the Relationship Manager of one of the customer of the 1^st defendant who was granted a facility of N4,557,000.00k on the 25^th June, 2015. The customer defaulted in repayment of the loan, leading to the restructuring of the facility through a credit appraisal memo exhibit CW1-h written by the claimant. This resulted in an offer for a re-structured loan to J. Collins Expansion Ltd. which was duly accepted by the company in Exhibit CW1-i

The 1^st defendant witness also tendered Exhibit DW1-C, the approval for the restructured loan to J. Collins Expansion Ltd. He also testified that the 1^st defendant approved the restructuring of the facility on the condition amongst which is that the claimant shall be responsible to recover the said facility which was to run for 18^th months. That two months after the re-structuring the claimant resigned his appointment with the 1^st defendant.

I have carefully examined Exhibit CW-h dated 5^th September, 2016. It was raised by the claimant as Relationship Officer. It was reviewed by the 2^nd defendant as the Branch Leader. It has a concurrence by one Leonard Ezegwu as Head, Anambra/Enugu/Ebonyi, it is also approved by Legal department of the 1^st defendant and finally approved by Oku Odinkeme, the Executive Director Commercial & Consumer Banking South. These officers played one role or the other in the restructuring of the facility. Why the claimant is singled out as the officer to be responsible for the restructuring is not clear to this court.

I have also considered the response of the claimant during cross examination when he said:

Question:

Did you justify the restructuring of the facility in the credit appraisal memo, you wrote?

Answer:

It is not correct, the justification which is part of an element of the credit appraisal memo was written in accordance with the customer offer to the bank when the customer requested for restructuring.

Question:

It was upon the credit approval memo, that an approval for re-structuring was made

Answer:

Yes, after I wrote the credit appraisal memo, my supervisor Ikechukwu Odo (2^nd defendant) reviewed it, my Regional banking head concurred and the Executive Director approved same.

These pieces of evidence are in tandem with Exhibit CW1-h. the entire process leading to the approval of the restructuring in Exhibit CW1-h was carried out by officers mentioned therein in their ordinary course of business. The claimant could not have been the only person responsible for the outcome of Exhibit CW1-h

I have also examined Exhibit DW1-c dated 8^th September, 2016 written by the Credit Appraisal Group of the 1^st defendant. This is the document wherein the defendant contends that the claimant was obligated to recover the facility. Paragraph 7 on the heading “comment” states:

“The primary account officer Gerald Olisah (ABE) with “B” rating is considered capable of managing the relationship and is responsible for the performance and recovery of the facility”

This the defendant contend obligated the claimant to recover the facility.

I have notice that this document was reviewed by one Chinenye Anyanwo and concurred by one Nnenna Ubbaenu, all officers of the 1^st defendant. Apart from the mention of the claimant’s name, there is nowhere in the content of the document the claimant appended his signature as an acceptance of the obligation imposed upon him by the above quoted clause. I do not also understand how the claimant who has no control over the business affairs and day to day working of J. Collins Expansion Ltd. the beneficiary of the loan could have been responsible for the performance and recovery of the loan.

It is also in evidence during cross examination of the 2^nd defendant ie DW1 thus:

Question:

It is true that the facility in question was given to J. Collins Expansion Ltd.

Answer:

Yes.

Question:

Was the counter-part funding of the facility paid to claimant account?

Answer:

No. It was paid to J. Collins Expansion Ltd. Account.

Question:

Is the facility given to J. Collins Expansion Ltd. Collaterised?

Answer:

The equipment lease facility is usually collaterised by the equipment being financed, in this case it was collaterised by the equipment financed by J. Collins Expansion Ltd.

Question:

Is it true that the lease asset documents is with the 1^st defendant?

Answer:

Yes, the document are with the 1^st defendant.

Question:

The facility was approved by the regional bank head?

Answer:

Yes, it was approved by the regional banking head.

There is an approval process which starts with the relationship manager and ends with the regional bank head

Question:

There are 4 collaterals for the restructured facility, tell the court what they are;

Answer:

1) Legal ownership of the financed asset by the 1^st defendant bank.

2) Personal guarantee of the MD of the Company (J.- Collins Expansion Ltd.)

3) Insurance Cover for the financed asset

4) Other bank cheques in favour of Fidelity bank. They are listed in Exhibit CW1-i

These pieces of evidence elicited during cross examination of DW1 the 2^nd defendant is instructive as to the nature of the restructured loan.

The 1^st defendant seem to have abandoned banking regulations and the rules regarding grant and recovering of loan and other banking facility to demand that it was the claimant who was under the obligation to recover the loan. From the clear content of the offer of the restructured loan exhibit CW1-I which was accepted by accepted by J. – Collins Expansion Ltd, the facility under the heading “security” was heavily collaterised with the 1^st defendant retaining the legal title over the leased asset. Also the clause “other condition” in Exhibit CW1-I clearly stated.

Any violation or non-compliance with any of the terms or conditions of this offer renders the facility ineffective and can be called off by Fidelity without recourse to J. Collins Expansions Ltd.”

The above clause gave the 1^st defendant the option of enforcing the security to recover the loan. But the 1^st defendant rather than exercise the rights vested in him by the agreement entered into voluntarily with J. Collins Expansion Ltd. Choose to embark on an unauthodox and unethical banking practice by seeking to hold the claimant responsible for a transaction which the claimant never undertook any personal liability but rather acted as an agent of the 1^st defendant in his ordinary course of business. It is also worthwhile to note that there is no stipulation in the letter of appointment Exhibit CW1-A given to the claimant which could call in the personal liability of the claimant. The defendant counsel in his address has attempted to justify the action of the 1^st defendant in holding the claimant liable for the recovery of the loan by alleging that there is a banking practice which requires an employee of the bank to ensure that all past due, expired and or matured loans and other facilities advanced in all customers account opened and managed by the claimant to be settled before quitting his employment. He relied on paragraph13 of the witness statement on oath. Apart from this bare assertion by the DW1 who testified as the sole witness of the defendants, the defendant failed to lead evidence in proof of this banking practice. The law is that he who asserts the affirmative of an issue must proof same. See S.131(I) of the Evidence Act. See Oscar & Anor V. Isa [2014] LPELR – 23620 (CA). see also Amechi V. INEC [2008] All FWLR pt 407 1. Also in Union Bank of Nigeria Ltd. V. Ifeatu Augustine Nwoye [1996] LPELR – 3388 (SC). The Supreme Court has stated that

“it has long been established through several decisions that whoever alleged banking custom must proof it”.

The defendants failed to prove the banking custom/practice exist which entitled them to withhold the end of service entitlement of the claimant and also refuse to issue the claimant’s new employer a reference letter. I must state here very clearly that such a custom even if it exist amounts to an unfair labour practice which this court if called upon would not hesitate to strike down.

Having said this it is not in doubt that by Exhibit CW1-B the 1^st defendant has admitted that the claimant was entitled to his end of service entitlement in the sum of N930,991.66k. the plaintiff solicitors in Exhibit CW1 – C, demanded the payment of the above stated entitlement and followed it up with another letter Exhibit CW1-E. The claimant further wrote another letter on 6^th March, 2017 which was admitted in evidence as Exhibit CW1-F requesting the release of his end of service entitlement. The 1^st defendant has still refused to pay the said sum to the claimant. From the evidence documentary and oral adduced in this case this court frowns at the conduct of the 1^st defendant in this suit. It does appear that the 1^st defendant has set out to punish the claimant for exiting his employment with the 1^st defendant by withholding his end of service entitlement on the unproved and unsubstantiated practice of holding the claimant liable for the recovery of a loan granted to its customer which the 1^st defendant in complete disregard of the loan agreement attempts to impose the obligation on the claimant.

This court holds the 1^st defendant cannot deny the claimant his right to the sum of N930,991.66k being his end of service entitlement on the grounds of un-existent banking custom. The act of the 1^st defendant amounts to unfair labour practice. This court therefore enters judgment in the sum of N930,991.66k in favour of the claimant.

On the second issue, ie whether the 1^st defendant was under a duty to issue a letter of reference to the claimant new employer. (Sterling bank).

At Common law, an employer is not under a duty to provide a reference or testimonial for a current or former employee. However this common law rule has over time evolved to admit some exception. One of such exception is where the duty to give such reference is implied by the nature of contract and by trade custom. The claimant’s contention is that he is entitled to a reference after exiting the employ of the 1^st defendant. He tendered Exhibit CW1-E wherein in paragraph 9 he wrote.

Sir, with all sense of modesty and in the spirit of fairness, I plead and solicit your intervention as regards to the payment of my EOS and release of my reference as things stand at the moment I may be left with no alternative but to petition the Apex Bank and other concerned regulatory agencies as I seek legal redress.

It does appear that a letter of reference from a former employer of the claimant is a documentation if not received would deny the claimant of any further engagement by any bank as a worker in the banking industry. Apart from the claimant demand for the release of this letter of reference in Exhibit CW1-E, CW1-C, CW1-F, The letter written by the claimant new employer Sterling Bank tendered as Exhibit CW1-D is an evidence of the practice recognized in the banking industry, the said exhibit reads:

“We received a response to our enquiry from Fidelity Bank that you have outstanding issues with the organization”

We advise you to urgently, contact Fidelity Bank to settle all issues within one (1) week from Wednesday July 12, 2017. This would assist us to ensure that your reference is sent to us in line with the requirement for your confirmation.

Kindly note that failure to receive the above mentioned item on/before Wednesday, July, 19 2016 you will be given time of without pay with effect from Thursday July 2017 in order to resolve your outstanding issues.

Please treat as important

Thank you.

Recruitment, Records and

Workforce planning.

Human Resources Managing

11^th floor Sterling Towers

Sterling Bank Plc

20, Marina Lagos.

During cross examination the claimant who testified as CW1 Stated:

Question:

You are also aware that there was a correspondence between Sterling Bank Plc; and the 1^st defendant in respect of your services with the 1^st defendant?

Answer:

Yes, for over six months the 1^st defendant failed to respond to Sterling Bank on my reference I sent several mails and my legal team had to also write to the 1^st defendant and they still did not respond. It was after Sterling Bank wrote to me that they were going to place me on suspension that I forwarded the said mail to the 1^st defendant. It was at that point that they responded that I had an outstanding obligation with the 1^st defendant and the outstanding obligation is the facility in question.

Question:

Did Sterling bank to your knowledge receive a response from 1^st defendant with respect to their request for reference?

Answer:

Yes they did after over 6 months

Question:

Is it correct to say that Sterling Bank received the said response from the 1^st defendant before this action was instituted?

Answer:

It is not correct.

This pieces of evidence elicited through cross examination goes to establish the banking practice of issuing reference to an ex-employee of a bank. This practice is also confirmed by the 2^nd defendant Mr. Ikechukwu Odo who testified as the sole witness for the defendant in this suit. During cross examination he stated:

Question:

Is it possible that when you move to another bank the new employer would always ask for a reference?

Answer:

Yes.

Question:

Is it also possible that if the employer is unable to get a reference from his former employer when requested it may well be that he may not get any employment in the banking industry?

Answer:

Yes, that is why it is important to clear with your former employer before joining another bank. The 1^st defendant responded to the claimant’s new employer.

This piece of evidence coming from the witness of the 1^st defendant is a confirmation of the practice of issuing references for ex-employee of the 1^st defendant.

I have earlier stated in this judgment that the 1^st defendant cannot hold the claimant liable or responsible for a transaction which the claimant never undertook any personal liability. The 1^st defendant tries to justify his refusal to issue the reference to the claimant new employer, Sterling Bank when he stated during cross examination:

Question:

I put it to you that the 1^st defendant withheld both the end of service entitlement and his reference just to punish him.

Answer:

It was withheld so that he can come back and recover the past due obligation that he has with the bank.

Having held that there was no obligation on the claimant’s part to the 1^st defendant to recover the loan granted to J. Collins Expansion Ltd. The refusal of the 1^st defendant to release the claimant’s reference on the excuse that the claimant had an obligation to recover the loan is wrongful and a clear breach of the 1^st defendant’s duty to issue a letter of reference to the claimant’s new employer Sterling Bank.

It is not also in dispute that the unlawful act of the 1^st defendant’s refusal to issue the reference resulted in the suspension of the claimant from his new employment. This has kept the claimant out of employment with the attendant consequences that follow the claimant’s present status as unemployed. In the circumstances I find that the claimant is entitled to damages for the unlawful act of the 1^st defendant. Accordingly I enter judgment in favour of the claimant against the 1^st defendant in the following terms.

1) The 1^st defendant shall pay the sum of 930,991.66k representing the claimant’s end of service entitlement to the claimant forthwith.

2) The 1^st defendant is ordered to release the claimant’s reference to Sterling Bank Plc. Within 7 working days from the date of this judgment and to any other employer as maybe demanded on behalf of the claimant;

3) The first defendant shall pay the sum of 5 Million naira as general damages to the claimant for the unlawful act of withholding the claimant’s reference letter and end of service entitlement of the claimant which resulted in the unemployed status of the claimant.

4) As regards the claim of 10% interest on the sum of N930, 991.66K from 22^nd February2017, until payment of the sum, the claimant offered no evidence in proof of his entitlement of interest on the above sum as claimed. The claim therefore fails and is hereby dismissed.

The monetary judgment made by the court in this judgment shall be satisfied within 14 days from the date of this judgment failure of which it shall attract interest at the rate of 5% until liquidation of the judgment debt.

Judgment is entered accordingly.

Hon. Justice I. J. Essien Ph.D

Presiding Judge