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National Industrial Court

Mr. Olufemi Olushakin VS First City Monument Bank Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: February 15, 2018

 

Suit No: NICN/IB/02/2015

 

Between:

 

Mr. Olufemi Olushakin

Claimant

And

First City Monument Bank Plc.

Defendant

Representation:

Enos Enos Jacob with Wumi Okeremi for the claimant

Akeem Agbaje with T. Idenyi for the defendant

 

JUDGMENT

On January 27, 2015 the claimant filed this complaint against the defendant seeking for the following reliefs:

  1. A declaration that the proceeding of the Disciplinary Committee held on the 31st of October, 2012 to try the allegation of unethical lending and diversion of mortgage loan leveled against the claimant and whose verdict has not been made known to the claimant before the termination of the claimant’s employment by the defendant has not and/or cannot establish the allegation of unethical funding and diversion of mortgage loan leveled against the claimant has been proved against the claimant.
  2. A declaration that the termination of the claimant’s appointment by the defendant, vide the letter of termination of appointment dated 8th November, 2012; done contrary to the terms of claimant’s contract of employment, in the circumstances of this case, was unlawful and wrong.
  3. A declaration that the termination of the employment of the claimant by the defendant in the manner and circumstances that same was done tagged him with a testimonial of an unfit and incompetent person whose future career has been blighted because the claimant who chose his life career in the banking industry cannot be employed with or without any reference to the defendant, by any other bank or financial institution.
  4. General and special, compensatory and exemplary damages in the sum of N100,000,000.00 (One Hundred Million Naira only) to remedy the untold woes and hardship that the unlawful termination of the claimant’s appointment by the defendant and its dire consequences have brought to the claimant. The composition of the claim for damages is as follows:
  5. a)The sum of N93,039.990.00 (Ninety Three Million, and Thirty Nine Thousand, Nine Hundred and Ninety Naira Only) as special damages being the sum of money the claimant would have earned in his banking career for fifteen years, on the scale of the claimant’s last annual remuneration of N6,202,666.67, were the claimant to continue his employment with the defendant or had the claimant got intact his undented reputation to continuing his career with any financial institution, shorn of the very possibility of promotion and increase in remuneration of the claimant, if the defendant had not unlawfully terminated the claimant’s employment in the manner that his chance of even securing another employment to continue his career was completely ruined by the defendant.
  6. b)The sum of N565,888.89 (Five Hundred and Sixteen Thousand Eight Hundred and Eighty Naira, Sixty Nine Kobo) as special damages being the claimant’s one month salary in lieu of notice from the scale of the claimant’s last annual remuneration of N6,202,666.67 when his employment with the bank was unlawfully terminated.
  7. c)The sum of N6,443,122.00 (Six Million Four Hundred and Forty Three Thousand One Hundred and Twenty Two Naira Only) being general damages for the unlawful termination of the claimant’s employment and denting the claimant’s career reputation as an unfit and incompetent person in the banking industry.

 

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel together with its statement of defence and counter claims in compliance with the Rules of this Court.

 

The defendant/counter claimant, counter-claims against the claimant/defendant as follows:

  1. Payment of the sum of N9,041,843.94k being the outstanding balance in the claimant/defendant’s Account No. 0197167011 with the defendant/counter claimant as a result of the credit facility granted to the claimant/defendant as at 28th February, 2015.
  2. Interest at 20% per annum from 9th November, 2012 until judgment is delivered and thereafter at 10% from the date of judgment until the whole sum outstanding and cost is fully liquidated.

iii.            An Order of injunction restraining the claimant/defendant, his servants, privies, agents or anyone howsoever called from dealing with the property (in whatever way) known as Plot 5, Block 11, Ring Road, GRA New Adeoyo Area, Ibadan, Oyo State used as collateral for the facility granted to the claimant/defendant, until the debt owed the defendant/claimant is fully liquidated.

  1. An Order for Foreclosure of the property situate at Plot 5, Block 11, Ring Road, GRA New Adeoyo Area, Ibadan, registered as 33/33/3184, at the Lands Registry, Oyo State used as collateral for the overdraft facility granted to the claimant/defendant.

 

The case of the claimant is that during his employment with the defendant, he applied for a mortgage loan in the sum of N10,000,000.00 to acquire a property covered by a Certificate of Occupancy registered as 33/33/3184 located at plot 5, block 2, Educational, Ring Road, Ibadan, Oyo State. That upon the acquisition of the property by the claimant with the loan, the title of the property was registered at the Ministry of Lands, Oyo State in the name of Winsand Homes Ltd, which is a nominee and a subsidiary of the defendant bank in charge of its real assets. Subsequently the defendant bank set up a Disciplinary Committee to try the claimant for diversion of proceeds of the mortgage facility and for unethical parallel lending of the same proceeds of the loan that were used to purchase the property. To the claimant, his appointment was terminated in contravention of the defendant’s Staff Handbook governing his employment with the defendant.

 

The case of the defendant on the other hand is that, notwithstanding the fact that the claimant was investigated and tried on allegation of diversion of the proceeds of the mortgage facility by the Disciplinary Committee of the defendant; the claimant’s appointment was terminated just because his services were no longer required. To the defendant, the allegation for which the claimant was investigated and tried by the defendant raises substantial suspicion of foul play and unprofessional conduct and that it is the defendant’s duty to ensure that its operations were professional and devoid of foul practices. The defendant continued that the termination of the claimant’s employment was not due to the outcome of the disciplinary committee’s investigation but due to the fact that his services was no longer required; in line with the terms of the contract of employment  between the claimant and the defendant

 

During hearing of the case, the claimant called three witnesses; Delu Mofolorunsho Adewale testified as CW1, Owolabi Oreagba as CW2 and the claimant himself as CW3 while one Emojevwe Eboh testified on behalf of the defendant as DW1. In line with the Rules of this court, counsel to the parties were directed to file their final written addresses by the Court after the trial of the case and the counsel complied with the direction.

 

In its final written address, the defendant abandoned its Counter-Claim against the claimant and requested same to be struck out. The defendant then formulated a sole issue for determination of the Court thus:

Whether the employment of the claimant was properly and validly terminated by the Defendant?

Arguing this issue, counsel submitted that employer/employee relationship is governed by the terms and conditions of the contract particularly where they are in writing, citing Ezekiel v. Westminster Dredging Nig. Limited [2001] FWLR (Pt. 60) P. 1564 at 1572. He went on that the contract between the claimant and the defendant is evidenced by Exhibit C.1, which incorporates Exhibit C9 by reference. To counsel, paragraph 1.1 at page 13 of Exhibit C9 states the Conditions of Employment Generally to the effect that every newly recruited staff must receive a letter of employment (i.e. Exhibit C1).

Counsel went on that, it is before the Court that by the letter dated November 8, 2012 (Exhibit C6) the defendant terminated the employment of the claimant on the ground that his services were no longer required. By letter dated November 13, 2012 (Exhibit D6) the defendant informed the claimant about his net entitlement, which included payment in lieu of notice as at 9th November, 2012 was a total sum of N2,435,748:65 and that his net indebtedness to the defendant was the sum of N427,149:82; leaving a net balance of N2,008,598:73. H continued that in Exhibits D3 and D3 (a), the defendant credited the claimant’s account with the net entitlement of N2,008,598:73 on 03 January 3, 2013 (see Page 11 line 16 of Document D.3).

Counsel submitted that by the provisions of Exhibit C9 under Conditions of Employment, Clause 1.6 at page 15 particularly at page 16, “the bank or the employee may terminate the employee’s services subject to a notice period of one month or payment of salary in lieu of notice” and that this is what the defendant has done. Hence, the burden of proving that his employment was terminated on other grounds than the fact that his services were no longer required; therefore, rests squarely on the claimant; citing Kumaganami v. Kyari [2002] FWLR (Pt. 126) P. 820 at 829 and Okubule v. Oyagbola [1990] 4 NWLR (Pt. 147) P. 725 at 736.

Counsel canvassed that the law is that an employee cannot be heard to complain that his employment was wrongly terminated after accepting salary in lieu of notice of termination of his appointment, which is a means to a valid and proper termination of his employment; citing Iloabachie v. Philips (SUPRA) at 747 Mobil Producing Nigeria Unlimited v. Asuah [2002] FWLR (Pt. 107) P. 1196 at 1224. That in the instant case, the claimant instituted this action well over 2 years, after all his entitlements were credited into his account as it was so credited on January 3, 2013 and that he instituted this action on 27 January 27, 2015.

Counsel went on that the evidence of CW1 and CW2 are clearly at variance with the content of Exhibit C9, hence they are not witnesses of truth. Also that the claimant failed to establish that it is the custom  in the banking industry for a bank to request its employee whose service is no longer required to resign, citing  Section 16 (1) and (2) of the Evidence Act. To counsel, the termination of the claimant’s employment by the defendant on the ground that his services were no longer required has not prevented him from getting employment anywhere else, citing the following cases ; Central Bank of Nigeria v. Archibong [2001] FWLR (Pt. 58) P. 1032 at 1047; Chime v. Ezea [2009] All FWLR (Pt. 470) P. 666 A6 714; Erinwingbovo v. Erinwingbovo [2006] All FWLR (Pt. 318) P. 615 at 626; Mobil Producing Nigeria Unlimited v. Asuah [2002] FWLR (Pt. 107) P. 1196 at 1224; Jadesimi v. Okotie – Eboh [1989] 4 NWLR (Pt. 113) P 115 at 125; Are v. Ipaye [1986] 3 NWLR (Pt. 29) P. 417; Agwazim v. Ejivumerwerhaye [2001] FWLR (Pt. 78) P. 1125 at 1139; Temile v. Awani [2001] FWLR (Pt. 62) P. 1937 at 1955 and Smithkline Beecham Plc. v. Farmex Limited [2009] All FWLR (Pt. 499) P. 566 at 581.

Lastly that the claimant has failed woefully to prove his claim, he urged the Court to dismiss the claimant’s case with substantial cost in favour of the defendant.

 

In the claimant’s written address, his counsel formulated the following issues for Court’s determination:

  1. Whether from the entire circumstances of this case and based on the evidence adduced at the trial, it has not been established that the claimant’s appointment was terminated based on the recommendation of the Disciplinary Committee but however dissembled by the defendant bank that the claimant’s services were just no longer required and, that the said termination of appointment was unlawful or wrongful.
  2. Whether the proceedings of the Disciplinary Committee whose verdict was not delivered and communicated to the claimant, could form a legal basis upon which the claimant’s appointment could be terminated.
  3. Whether by the proven custom of the banking industry and as implied in the handbook, it has not been established that the defendant’s termination of the claimant’s appointment besmeared him as a person wanting in integrity and competence and rendered him unemployable by any financial institutions.
  4. Whether the claimant has not proved by evidence his entitlement to the damages sought.

 

Arguing issues one and two together, counsel submitted that the surrounding circumstances of this case form a very crucial wedge to drive belief that the claimant’s appointment was terminated pursuant to the recommendation of the Disciplinary Committee but dissembled by the defendant because someone who as recognized by the MD to be a very vibrant banker and who got promoted in March, 2012 and was just granted a mortgage loan facility could not have had his appointment terminated on 8th November, 2012 for no reason. Referring to Exhibits D7, D4 and Exhibit C,? counsel argued that no event happens in vacuum; the antecedent and the subsequent events form surrounding circumstances to be reviewed by this Court in arriving at a decision, citing Onuoha v. State [1989] 2NWLR (Pt. 101)23 @32 paragraphs B-D.

 

Counsel went on that the acceptance of payment of salary in lieu of notice, that the claimant has seriously denied the payment of salary in lieu of notice; that assuming but not conceding that the claimant was paid salary in lieu of notice, it is not the law that the invalid or void termination of appointment becomes validated by the acceptance of such payment, citing Military Administrator of Benue State v. C.P. Ulegbe [2001] 11 NWLR (Pt. 141) pg.194 and FAAN v. Nwoye [2012] LPELR-8377 at pages 30-31 paragraphs F-C, which held to the effect that where an act is void ab-initio, it cannot be validated by subsequent acts even if valid, that the acceptance of salary in lieu of notice of retirement did not amount to acceptance of the invalid and void retirement.

 

Also counsel submitted that the termination of the claimant’s employment was not in line with document D2 (same as Exhibit C9) at page 18 paragraph 1.9 (b), which is to the effect that “No disciplinary action should be taken against an employee without an investigation to establish the facts. During such an inquiry: a) the employee should always be given an opportunity to state his/her case and b) the employee should always be informed of the outcome, and of any decision on disciplinary action. Such advice should be given in writing with the exception of cases where the warning is verbal.” Counsel referred the Court to paragraph 38 of his witness’ statement on oath that the verdict of the Disciplinary Committee was not delivered and same was not communicated to him either before or after the termination of his appointment by the defendant; that the defendant bank did not counter, discredit, deny or controvert that salient pleading and evidence led thereon and the Court is allowed to deemed such evidence as being accepted, citing Samuel Ebere v. Board of Management, Eko Baptist Hospital [1978] 617 SC 15; Ajomale v. Yaduat (No.2) [2003] FWLR (Pt.182) 1913 at 1925 and Ogar v. James [2001] 10 NWLR (Pt. 722) 621 at 639.

 

Arguing issue three on the custom in the Banking industry, counsel submitted that termination of appointment is one of the punishments that may be given by the bank to an erring employee for committing any of the offences listed in the handbook referring, to page 18 of Exhibit C9. He went on that an employee whose services are no longer required would be advised to resign and paid all entitlements so as to save his career for future employment. That, it is the custom and tradition of the defendant bank in particular and the banking industry in general duly pleaded copiously and established by proof of evidence by the claimant; referring to paragraph 32 of the statement of claim, paragraph 40 of the statement on oath of the claimant as 3rd witness and evidence of the 1st and 2nd witnesses of the claimant as contained in their respective witnesses’ statements on oath. He also referred to section 16 of the Evidence Act, 2011; the cases of Union Bank of Nigeria Limited v. Ifeatu Augustine Nwoye [1996] LPELR- 3388 and Eyo v. Onuoha & Anor [2011] LPELR-1873. Counsel submitted that the customary implied term of the contract of employment of the claimant with the defendant has been sufficiently proved by the evidence of the claimant’s witnesses and has not been controverted by the defendant at the trial and that the negotiated contractual term of termination in issue here, cannot be amenable to the fettered import or signification of “termination” legally speaking.

 

Arguing issue four of whether the claimant has proved his entitlement to the damages sought, counsel contended that all the claims sought by the claimant have been proved in evidence the evidence before the Court and that the defendant bank, who was under a duty of care to the claimant, breached that duty by negligently terminating the appointment of the claimant in such a way that the claimant is now rendered unfit to work again in the finance industry despite the fact that he was not found culpable of any misconduct by the defendant to warrant such a termination. To counsel, relief 4(a) is proven as damages suffered by the claimant who cannot work anymore now in any finance industry or anywhere as a result of the action of the defendant in wrongly and negligently terminating the employment of the claimant. Counsel also maintained that reliefs 4(b) and (c) are proven by unchallenged evidence of the claimant. He referred to the cases of Makwe v Nwukor [2001]14 NWLR (Pt. 733) 356 @ 373 paragraphs A-B; Abusomwan v. Mercantile Bank (Nig.) Ltd (No.2) [1987] 3 NWLR (Pt. 60) 196 @ 208 and MTN (Nig.) Comms. Ltd v. Sadiku [2014] 17 NWLR (Pt.1436) 382 @ 412-413 paragraphs F-F.

Counsel to the defendant filed a reply on point of law to the claimant’s written address where in counsel submitted that civil cases are decided on preponderance of evidence and balance of probabilities. This connotes that the totality of the evidence of both parties is bound to be taken into account and appraised so as to determine which evidence has weight and which has none, citing Osuji v. Ekeocha [2009] All FWLR (Pt. 490) P. 614 at 643 and Akibo v. Okusin [2010] All FWLR (Pt. 529) P. 1059 at 1076. He also argued that a claimant must rely on the strength of his own case to succeed. Thereafter, counsel reargued his case in the said reply on point of law.

COURT’S DECISION

I have gone through the facts of this case, the arguments of counsel to the parties and their cited authorities; from all of these I am of the considered view that the only issue to resolve here is:

Whether or not the claimant’s employment was properly terminated by the defendant.

However, before going into the merit of this case, I need to clear some preliminary points that arose in the cause of this trial.

  1. Evidential values of some documents

 

Firstly, the defendant’s defence processes were filed on June 11, 2015; see pages 92 to 148 of the Court’s record. At page 94 of the record is the process titled: “Statement of Defence and Counter-Claim” it has 16 paragraphs (paragraphs 1 to 16) and this process runs through to page 96 of the record. The sum of N150.00 is assessed on it for filing and service. Also, at pages 97 to 98 of the record is another process titled: ‘Counter-Claim’ with separate assessment of N150.00 for filing and service. It has 9 paragraphs (paragraphs 1 to 9). In essence; the process at pages 94 to 96, the ‘statement of defence and counter claim’ is deferent from the other one titled ‘counter-claim’ at pages 97 to 98 of the record. The process titled: ‘counter-claim’ is signed by one Clifford Anuge Esq. see page 98 of the record. On the other hand, the process titled ‘statement of defence and counter claim’ is neither signed nor authored by anybody. It is trite that an unsigned or irregularly signed document is worthless and it is entitled to ascription of no weight at all in law as such document binds no one, see Dantiye & anor v. Kanya & ors. [2008] LPELR-CA/K/EP/NA/26/2007 ” Per Okoro, JCA (P. 39, paras F-G) and Global Soap & Detergent Ind. Ltd. v. NAFDAC [2011] LPELR-CA/IL/13/2007, per West JCA,(P.30, paras. B-C). Therefore, I find and hold that this process is a worthless piece of paper, it has no evidential value and this Court cannot rely on it. Consequently, the process; particularly the averments therein together with all evidence given thereon are hereby discountenanced in this judgment.

As it is, there is not pleadings in defence of this case as the purported pleaded facts in defence were not authored neither were they signed by the defendant’s counsel nor its representative in office. However, this Court can still look at the defendant’s documents that were already filed before the Court, regardless of the fact that its pleadings have been discountenanced; more so, that these documents were not challenged by the claimant. Besides, in the case of Agbahomore v. Eduyegbe [1999] 3 NWLR (Pt. 594) 170 at 182 paragraph E; the Supreme Court, per Onu JSC held that a Court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as exhibit at trial. See also the case of Famudoh v. Aboro [1991] 9 NWLR (Pt. 214) 210 at 229 paragraph E where Tobi JCA (as he then was) held that a Court can suo motu make reference to the case file before it and make use of any document and relevant evidence.

Therefore, I find and hold that irrespective of the finding of the Court that the defendant has no pleading against the claimant’s case before it; the defendant still has right to address the Court as it did through its counsel and the two addresses of the defendant (its final written address & reply on points of law) together with its documents already before the Court will be considered in this judgment.

Again, Document D.7 relied on by the defendant is titled: “Report on Investigation of Unethical Lending to Loladex Enterprise by Olufemi Olushakin. The Manager of Ibadan Ojoo Branch” It is at pages 130 to 131 of the record. This document is neither authored nor signed. The names of the members of the Committee who met, investigated the allegation and gave the report are also not stated on it. Consequently, I find and hold that this document is a worthless piece of paper that has no evidential value as well and it is accordingly discountenanced in this judgment.

Documents containing the Terms and Conditions of the contract between the Parties?

Furthermore, it is worthy of note that the employment relationship between the claimant and the defendant before the Court was a private one, otherwise known as master and servant relationship. The claimant did not tender his letter of employment but he tendered the Letter of Confirmation of his employment dated May 22, 2007; (Document C.8) together with a copy of the defendant’s Staff Handbook containing the terms and conditions of his employment as Document C9 along with some other documents. The defendant too frontloaded the claimant’s Appointment letter dated December 29, 2005 with other documents. As a result; I find and hold that in determining of the rights, duties and obligations of the parties in this case, the terms and conditions regulating the employment relationship between them are as contained in the claimant’s Appointment letter of December 29, 2005 filed by the defendant, his Letter of Confirmation of the employment dated May 22, 2007 (Document C.8) and the defendant’s Staff Handbook, Document C9 also relied on by the defendant.

Merit of this case

In the defendant’s final written address, its counsel abandons its Counter Claim and requests same to be struck out. As requested; the counter claims of the defendant together with all pleadings thereon and in counter, including arguments for and against same are accordingly struck out in this judgment.

On Banks’ custom according to the claimant

In paragraph 32 of the statement of claim, the claimant pleaded the issue of custom in banking industry and particularly in the defendant bank that he ought to have been advised by the defendant to resign when his services were no longer needed in the defendant bank instead of terminating his appointment as the custom in banking industry demands. However, counsel to the claimant failed to show where the element of custom in banking industry is allowed or implied in the terms and conditions of his employment as stated in his Appointment letter, his Letter of Confirmation of Employment (Document C.8) and in the defendant’s Staff Handbook (Documents C.9 before the Court. The law is that he who asserts the existence of a fact must prove same; see Idehen v. Registered Trustees Ikoyi Club 1938 [2014] 45 NLLR (Pt. 145) 558, Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083 and the provision of section 131(1) of the Evidence Act.

In a contractual relationship such as the case at hand, parties are bound by the terms of their contract they voluntarily entered into and when a Court is called upon to determine the rights, duties and obligations of the parties to that contract, the Court must respect sanctity of the contract. For instance, the Court should not allow a term on which there was no agreement to be read in to the contract, see Idufueko v. Pfizer Products Ltd. (supra) and West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 185 paras A-D.

Since the claimant could not link up this custom with the terms and conditions of his employment, I find and hold that the claimant has failed to satisfy the Court that such custom exists in the defendant’s Establishment and so, the claimant’s argument on this score is hereby discountenanced.

Reason for the termination of the claimant’s employment

Counsel to the claimant contended that the termination of the claimant was based on the recommendation of the Disciplinary Committee of the defendant. Document C6 is the letter of termination of the claimant’s appointment and it is dated November 8, 2012; it is at page 60 of the Court’s record. Paragraph one of this document states:

This is to inform you that Management has decided that your services are no longer required. Your appointment is hereby terminated effective November 9, 2012.

From the content of Document C6, the reason for the termination of the claimant’s employment is that his ‘services are no longer required’. This reason is very clear and unambiguous; and so, it should be given its ordinary and grammatical meaning while interpreting this document. See the case of Julius Berger Nigeria Plc. & Anor v. Toki Rainbow Community Bank Ltd. [2009] LPELR- CA/PH/365/2006 and International Standard Securities v. Union Bank of Nigeria Plc. (Registrar’s   Department) [2009] LPELR-CA/A/127/05. Thus, it is not the duty of this Court to speculate or embark on a voyage of discovery for the rationale behind the stated reason in Document C6 for the termination of the claimant’s employment by wedging into the surrounding circumstances that could have probably informed the defendant in issuing the said letter to the claimant as argued by his counsel in this case; see Mortage Bank v. Ekpo [2005] All FWLR (Pt. 248)1667 at 1681. It is also inconsequential; whether the verdict of the Disciplinary Committee that investigated certain allegations against the claimant was delivered or communicated to the claimant or not before his employment with the defendant was terminated. For this reason, I find and hold that the reason for the termination of the claimant’s employment by the defendant is that his ‘services are no longer required’ as stated in that letter (Document C6).

Was the Termination of the claimant’s employment wrongful?

Paragraphs 6 & 7 of the claimant’s Appointment letter of December 29, 2005 at page 107 of the record state:

This appointment is subject to six months probationary period, during which either party may determine this contract by giving one month’s notice or by effecting a corresponding payment in lieu.

At confirmation of appointment, a one (1) month notice of disengagement will apply.

In Clause 1.6 in page 15, particularly at page 16 of Document C.9; the Staff Hand Book, which is at page 32 of the Court’s record, under the sub-title: ‘Probation and Confirmation of Appointment’. It is provides that:

After confirmation, the bank or the employee may terminate the employee’s services subject to a notice period of one month or payment of salary in lieu of notice.

The claimant avers in paragraph 33 of the statement of claim that he was not given the requisite one month notice neither was he paid in lieu of notice before his employment was terminated. See also his testimony in paragraph 41 of his statement on oath of January 27, 2015. However, the defendant’s document titled ‘Re: Termination of Employment’ before this Court is at pages 128 & 129 of the record. The 2nd page of this document contains the computation of the claimant’s terminal benefits/indebtedness and his net entitlement/indebtedness is stated as N2,008,598.73 including the sum of N53,333.33 as payment in lieu of notice; see page 129 of the Court’s record. Furthermore, the defendant filed the Statement of Account on the claimant’s account number 0197167011 with the defendant from January 1, 2006 to January 17, 2016 before the Court. This document is at page 125(a) of the record and it has 43 pages. At its page 42, it is reflected that on January 1, 2013 the sum of N2,008,598.73 was credited into this account for the claimant. The claimant did not challenge this document neither did he controvert this payment. In the circumstance, I find and Hold that the defendant has paid the claimant in lieu of notice for the termination of his appointment without notice.

Furthermore, in Clause 1.9 at page 18 of Document C9 sub-titled ‘Staff Discipline/Code of Conduct’ it is states:

The following are well known offences that may deserve punishment such as warning, suspension, termination or dismissal; depending on the gravity of the offence: —-.

Then, twenty certain offences are listed and numbered as ‘a’ to ‘t’ under this clause. See page 33 of the Court’s record.

While I agree with the defendant that generally, an employer can terminate the appointment of its employee on the ground (inter alia) that his services are no longer required; in this particular instance, “termination” of the employee’s appointment in the defendant’s Establishment is tagged as “deserve punishment” based ‘on the gravity of the offence’ involved; in the terms and conditions of the contract of employment (Document C9) specifically applicable to the two parties before the Court. The defendant’s position in its written argument is that, even though its Disciplinary Committee investigated certain allegations against the claimant, the claimant’s employment was not terminated as a result of the outcome of that Committee’s report; but simply because the claimant’s services were no longer required. In my considered view, the defendant in this instant case can only terminated the employment of the claimant as a deserving punishment in respect of an offence or misconduct he must have committed in the Bank depending on the gravity of that offence or misconduct.

Since the claimant was not found wanting of any of the twenty offences listed under clause 1.9 of Document C.9 by the defendant; I find and hold that the defendant cannot terminate the employment of the claimant as it did. I further hold that the letter of termination of the claimant’s appointment was wrongly issued contrary to the terms and conditions of employment as the claimant was not found wanting of any of the offences or misconducts so listed in the parties’ terms and conditions of employment. This is because the two parties before the Court in this case are bond by the terms and conditions of this contract of service they freely entered into. In the circumstance, the letter of termination of the claimant’s employment, Document C6 is accordingly set aside.

The Court is minded of the fact that the claimant’s employment is not with statutory flavour, and so, it cannot order that he should be re-instated by the Bank. Besides, it is very clear to the Court from evidence on this case that the defendant does not require the services of the claimant again; and so, the Court cannot force the claimant/the willing employee on the Bank/an unwilling employer. The only option left here is for the claimant to resign from the employment since determining the claimant’s employment by termination by the defendant connotes that the claimant is guilty of a degree of misconduct; which is not the case here. As a result, I hereby direct the claimant to write his letter of resignation from the defendant Bank and this will be with effect from November 8, 2012 when he was wrongly terminated.

The 4th claim of the claimant is for N100,000,000.00 as general, special, compensatory and exemplary damages to remedy the untold woes and hardship he suffers for the unlawful termination of his appointment by the defendant. He then broke down the claim this way:

  1. The sum of N93,039,990.00 special damages as the money he would have earned in his banking career for fifteen years on the scale of his last annual remuneration of N6,202,666.67 if he has to continued his employment with the defendant or in any other financial institution.
  2. The sum of N565,888.89 also as special damages as his one month salary in lieu of notice.
  3. The sum of N6,443,122.00 being general damages for the unlawful termination of his employment and for denting his career reputation as an unfit and incompetent person in the banking industry.

 

I have held in this judgment that the defendant actually paid the claimant salary in lieu of notice for the termination of his appointment. Hence, the claimant’s claim for the sum of N565,888.89 special damages for one month’s salary in lieu of notice of the termination of his appointment is hereby refused and dismissed.

In respect of the claimant’s claim for N93,039.990.00 special damages as money he would have earned in his banking career for fifteen years if his employment was not terminated, the claimant has not justified his entitlement to this claim either from any statute or case law; not even from the terms and conditions of his employment. The claimant should be minded of the fact that he was in a private employment relationship with the defendant and that the right, duties and obligations of each party is strictly governed by the terms and conditions of the contract of employment freely enter into by them. Therefore, since this payment is not provided for in the terms and conditions of this contract, I find and hold that the claimant is not entitled to it and the said claim is accordingly dismissed.

With regards to the claimant’s claim for the sum of N6,443,122.00 as general damages for the unlawful termination of his appointment; let me quickly make the point that, the termination of the claimant’s employment is not unlawful because there is no law that proscribes it. It is only wrongful in this instance because, by the peculiar terms and conditions agreed to by the parties; terminating the claimant’s employment by the defendant here connotes that the claimant had committed misconduct, contrary to the defendant’s position in its address that the claimant did not commit any offence but that the bank just does not require his services again. Therefore, terminating the claimant’s appointment by the defendant in the instant case is only wrongful but not unlawful. That notwithstanding, I agree with the claimant that with the termination of his appointment by the defendant here, it depicts that the claimant had committed a misconduct and in my considered view, this has dented his career in the Banking/Finance Industry and the claimant is entitled to general damages for that; I so find and hold. For this, I award the sum of N2, 000,000.00 (Two Million Naira) general damages to the claimant on this score.

On the whole, I declare, hold and order as follows:

  1. I declare that the termination of the claimant’s appointment by the defendant, vide the letter of termination of appointment of November 8, 2012 was done contrary to the terms and conditions of the claimant’s contract of employment, in the circumstances of this case. Hence, it is wrongful.
  2. I hold that when the Bank no longer required the services of the claimant, it cannot terminate his employment as it did from the terms and conditions of the contract because; there was no act of misconduct found against him and the only option left for the defendant is to advise the claimant to resign.
  3. I hereby set aside the letter of termination of appointment of November 8, 2012 issued to the claimant by the defendant; since there is no evidence that the claimant committed any misconduct to support the letter.
  4. I hereby direct the claimant to write his letter of resignation, which will be with effect from November 8, 2012 when his employment was wrongly terminated.
  5. Because the wrongful termination of the claimant’s appointment in this instance has portrayed him as having committed misconduct, which was not the case and has dented his integrity, I hereby order the defendant to pay the sum of N2,000,000.00 general damages to the claimant.
  6. I hold that the claimant is not entitled to the sum of N93,039,990.00 (as the money he would have earned in his banking career for fifteen years if he were to continue his employment with the defendant or in any other finance institution as the terms and conditions of the parties’ employment do not support the claim. The said claim is accordingly dismissed
  7. In the same vein, I hold that the claimant is not entitled to the sum of N565,888.89 as one month’s salary in lieu of notice because that had already been paid by the defendant. This claim is also dismissed.
  8. The defendant is to pay N100,000.00 cost to the claimant.
  9. The defendant is to pay the judgment debts to the claimant within 60days from today.

 

Judgment is entered accordingly.

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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