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: January 18, 2018
Suit No: NICN/IB/66/2013
Between:
Mr. Oragbade Olugbade
Claimant
And
Skye Bank Plc.
Defendant
Representation:
O.O. Adeniyi with A. Oshomoji for the Claimant.
O.I. Osunlakin with O. D. Balogun for the defendant.
COURT’S JUDGMENT
On June 11, 2013 the claimant filed this complaint against the defendant for the following reliefs:
(1) Declaration that the claimant is still a bonafide staff of Skye Bank Plc., formerly Cooperative Bank, and his interdiction by the defendant is illegal, unconstitutional null and void.
(2) Declaration that the Claimant is entitled to his arrears of Salary being N30,460,715.74 (Thirty Million, Four Hundred and Sixty Thousand, Seven Hundred and Fifteen, Seventy Four Kobo only) payable to anyone in his position as (Assistant Banking Officer) between November 2003 and January, 2010 at the time he was interdicted by the defendant and subsequent arrears of salary till judgment is given herein.
(3) Declaration that the Claimant is entitled to his emoluments and gratuity using the present scale of calculation within the banking sector.
(4) Order of Court reinstating the Claimant and lifting the embargo placed on Claimant’s Staff Current Account No. 2231780000182 since Wednesday 17th December, 2008 or ALTERNATIVELY.
(5) N500,000,000.00 (Five Hundred Million Naira only) damages for breach of contract by the Defendant.
(6) And for any Consequential Order of this Honourable Court that will give effect to the Honourable Court’s judgment.
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 and filed its Statement of Defence in compliance with the Rules of this Court.
The case of the claimant is that he was a former cashier with the defunct Co-operative Bank Plc. before same was merged with other Banks in 2005 – 2006 to form Skye Bank Plc. (the defendant). He avers that on Friday November 14 and Monday November 17, 2003 while the claimant was working as a cashier with the bank at the defendant’s branch inSapon, Abeokuta, there was loss of some money as a result of manual balancing of account as orders by the Manager of the branch. He continued that himself with some other staff of the defendant in the branch were suspected, arrested and charged to court and that after their trial, he was discharged and acquitted of the charges against him. The Claimant went on that he was never laid off nor paid off by the defendant, neither did he abscond nor reject any call for settlement, consideration, or re-absorption and that he made several efforts to ensure that the defendant gave him his entitlement or to get reinstated but to no avail.
The case of the defendant on the other hand is that the claimant was at Sapon Branch, Abeokuta, Ogun State a cashier with the defunct Co-operative Bank Plc. and that on November 14 and Monday November 17, 2003; while the claimant acted as a cashier to the bank, the bank lost millions of Naira through fraudulent manipulation of customers’ accounts, which were traceable to the claimant while on duty on November 14 & 17, 2003. Upon the discovery, the claimant disappeared under the pretense that he was in search of the people that received the huge sums of money from him. The defendant averred further that the bank later set up a panel which investigated and reported on the fraudulent manipulation and stealing on customers’ accounts and also recommended the dismissal of the claimant from the services of the bank which the defendant acted on in dismissing the claimant. During the merger of the bank with other banks to form the defendant Bank between 2005 and 2006; the claimant was not available for the exercise as he had already been dismissed from the service of the Co-operative Bank Plc. in March, 2004 before the said merger.
During hearing of the case, the claimant testified as CW1 while Olatise Felix and OladimajiAkinola testified for the defendant as DW1 and DW2 respectively. In line with the Rules of this Court, Counsel were directed to file their final written addresses by the Court and they both complied with the direction.
DEFENDANT’S ARGUMENTS
The defendant filed its final written address through its counsel who formulated the following issues for determination of the Court:
- Whether or not, on the peculiar facts and circumstances of this case, there was/is an enforceable contract of employment between the claimant and the defendant?
- If the answer to issue one (1) above is in the negative, whether or not the claimant is entitled to the reliefs being claimed before this Honourable Court?
Arguing issue one, counsel to the defendant referred the Court to paragraphs 3, 4, 5, 6, 7, 17 and 19 of his Statement of facts but headed Statement of Claim and paragraphs 2, 3 (a) – (n), 4, 5, 8, 9, 11 and 12 of the statement of defence. Hesubmitted that parties and the Court are bound by the pleadings and that the relationship between the claimant and the default Co-operative Bank Plc. was that of master and servant, which was regulated by common law and not any statute. And so, the contract of employment between them was not protected by any law.He went on that it is the duty of the claimant who is challenging his unlawful termination or dismissal to put forward before the court the condition of service which regulates the relationship between him and his employer, citing Chief Ed-MundAkaninwo& 4 Others v. Chief Nsirim& 3 Others [2008] 20 W.R.N. Page 99 at Page 134, lines 5 – 15: Ogundipev. Nigeria Telecommunications Limited & 2 Others [2016] All FWLR (Pt. 817) Page 613 at Pages 631 – 632 paragraphs H – D.
Counsel contended that the claimant in the instant case was only able to show that he was an employee of the default bank and not an employee of the defendant and so, he failed woefully to show or prove the terms and conditions of his employment with the defendant and the way and manner or by whom he can be removed. To counsel, the contract of employment between the claimant and the default Co-operative Bank was one of contract of personal service, which is not assignable to the defendant. He went on that there is evidence on record that the bank disengaged and paid the entitlements of its former workers and joined other banks to form the defendant in 2006 during the banking consolidation exercise. That when the defendant emerged, it set up criteria for staff that are to work for the defendant had to meet before they were employed; referring to the evidence of D.W. 2, OladimejiAkinola and the case of Nokesv. Don-Caster Amalgamated Collieries Ltd [1940] 3 All E. R. Pg. 549.
Counsel went on that the claimant was rightly dismissed by the default Cooperative Bank after the bank set up a panel of inquiry to look into the fraudulent act perpetrated by the claimant and others after its submissionof its report to the bank. To counsel, the fact that the claimant was discharged and acquitted by the High Court in Exhibit C.3 is of no moment and has nothing to do with the right of the bank to dismiss the claimant as it did, citing Oyedelev. Ife University Teaching Hospital Complex Management Board [1990] 6 NWLR (Pt. 155) Pg. 194 at Pg. 199 Paragraph D;Olanrewaju v. Afribank Nigeria Plc.[2001] FWLR (Pt. 72) Pg. 2008 at Pg. 2075 Paragraphs F – H andAgoronyiAtadi v. Union Bank of Nigeria Plc.[2005] All FWLR (Pt. 285)pg. 517 at pg. 541 paragraphs B – C. He maintained that the bank was right in dismissing the claimant in the circumstances of this case and Exhibit C.3 cannot debar the bank from dismissing the claimant.
Arguing issue two of whether the claimant is entitled to the reliefs, counsel adoptedhis argument on issue one and further submitted thatfrom the evidence led at the trial of this case, the claimant never worked for the defendant and that he was never issued a letter of appointment by the defendant. Counsel continued that by the defendant’s Exhibit D4,the claimant instituted an action against the Cooperative Bank where by in the affidavit in support of the motion on notice (the Exhibit D4,) he referred to himself as a former staff of the bank and this was on 12th March, 2004; two days after he was dismissed by the bank on 10th March, 2004 via Exhibit D5. To the defendant’s counsel, the claimant is not a witness of truth, citing Okafor& Another v. Geoffrey Ejiogu[2011] 49 W.R.N. pg. 88 at pg. 117, lines 30 – 35. Counsel again referred the Court to the contents of Exhibits D3 and D4; and also to the cases ofAkinbisade v. The State [2006] 17 NWLR (Pt. 1007)pg. 184 at pg. 201, Paragraphs G – H andGarbaAikiv. Gabriel Idowu[2006] 9 NWLR (Pt. 984)pg. 47 at pg. 65 paragraphs A – C;he submitted that the claimant is not a truthful person and the defendant does not need his services. That it is trite law that the Court would not foist a willing employee on an unwilling employer. Counsel finally urged the Court to resolve this issue in favour of the defendant and against the claimant.
CLAIMANT’S ARGUMENTS
The claimant filed his final written address through his counsel and raised the following issues for determination:
- Whether the claimant is an employee of the defendant.
- Whether the claimant was validly dismissed.
- Whether the claimant is entitled to the reliefs sought by him in his Statement of Claim.
Arguing the first issue; counsel submitted that in a case of unlawful or wrongful termination or dismissal, the duty of the employee is to prove that the termination was wrongful or illegal, referring to paragraphs 1, 2, 4 &6 of the Statement of Claim; paragraphs 3 &5 of the Claimant’s Statement on Oath, Exhibits C5 (the letter of confirmation of Appointment dated 9th August 1993 Ref No. Mc. 6036/52), Exhibit C6 (pay Advise Slip dated 22nd October 2003) Exhibit C10 (Letter of Long Service Award to Claimant dated 19th March 2003 Ref. No. Mc.6036/183) Exhibit C11 (Letter of 1998 Annual Leave to the Claimant with Ref No. LF/MC. 6036/93) and paragraphs 1,3Aof the Statement of Defence. Counsel stated that it is not in issue that the claimant was a staff of the defunct Cooperative Bank. That upon the merger of Cooperative Bank with some other banks to form Skye Bank Plc., the law is quite clear that the new Skye Bank Plc. takes over all the assets and liabilities of the subsuming banks, which includes Cooperative Bank immediately after January 2006 following the legal consolidation, citing Black’s Law Dictionary 9thEdition 1999.
To counsel, it is the duty of the defendant to inform all its employees of any new development in the bank and in any case of any renewal of employment status, the defendant has the duty to invite all its employees including the claimant for any such exercise. He went on that with the absence of proof of this before this Court that the issue of re-employment of staff into the defendant Bank did not happen. He continued that the fact that same was pleaded in the statement of defence without any evidence to that effect has rendered the paragraph useless and ineffective, citing Mr. Richard Omidiora& 1Orv. Federal Civil Service Commission [2008] 2 FWLR (Pt. 418)pg. 2377 at 2400 as judgment cannot be based on unproved facts. Counsel concluded that the claimant was never invited to seek re-absorption into the defendant bank and his position is that no such exercise existed when the defendant bank took over Cooperative Bank in 2006.
Arguing issue two of whether the claimant was validly dismissed, counsel referred the Court to Exhibit C5 which is the Letter of Appointment of the claimant by the defendant, Exhibit C11 which is the letter by the defendant to the claimant regarding the claimant’s 1998 Annual leave, Exhibit C4 which is the Letter from the defendant to the claimant transferring him to the Abeokuta branch of the defendant and Exhibits C12a And C12b which are Statement of Account from the Trust Fund and Certificate of Membership of the claimant with the Nigeria Social Insurance Trust Fund. Counsel’s position is that, all these Exhibits from the defendant particularly acknowledged and confirmed the employment status of the claimant not as an ordinary employee whose appointment can be terminated just like that of a casual worker. He continued that no letter of termination was ever served on the claimant in the absence of any evidential proof of service of same before the Court.
Counsel went on that the claimant was not dismissed even after Exhibit D5 was allegedly written to the claimant on 10th March, 2004as the defendant was still paying the claimant’s contribution to the Trust Fund even months after 10th March, 2004; referring to Exhibit C12. That the claimant was never given a fair hearing as he was neither invited before the Panel nor was his own side of the allegation ever heard and throughout the alleged proceedings culminatingin Exhibit D3,there was no invitation to the claimant to appear before the panel. That it is settled in law that where a person is accused of a criminal offence, he must first be tried in a court of law where the complaints against him will be examined in public and where he will get a fair hearing as set out in the Constitution and where the dismissal of an employee is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand.
Counsel argued that in the unlikely event that Exhibit D5 is taken to have been served on the claimant, Exhibit D5 cannot qualify as a letter of dismissal on the ground that same having failed the test of fair hearing and the failure of the defendant to have tendered the Condition of Service for the Junior Staff upon which the said dismissal. To counsel, the evidential burden falls on a party who must prove a particular fact in issue, citing Odubekov. Fowler [1993] 9 SCNJ page 185; Omidiorav. Federal Civil Service Commission [2008] 2 FWLR Pt. 419 page 2377 at 2400 andMr. Isa A. Saibu v. Kwara State Polytechnic Ilorin [2009 1 FWLR (Pt. 452)pg. 73 at 118.
Arguing issue three of whether the claimant is entitled to the reliefs sought by him, counsel submitted that while it is right that the master has the power to terminate the contract with his servant at any time and for any reason or for none; however, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. Counsel maintained that the alleged dismissal of the claimant amounts to nothing, therefore; the claimant has not been removed from duty and he is entitled to be placed in the same position he is deemed to be by the defendantde. Jure, citing Olaniyanv.Unilag [1986] 4 NWLR (Pt. 34)pg. 162;Mr. Richard Omidiora& 1 Or v. Federal Civil Service Commission & 3 Ors [2008] 2 FWLR (Pt. 3419)pg. 2377 at 2395; Olanrewajuv.Afribank Plc. [2001] 7 NSCQLR pg. 22 at 32.
Counsel to the defendant filed a reply on point of law and responded to paragraphs 5.03 and 6.08 of counsel to the claimant’s final written address and referred the Court to evidence of D.W.2 Mr. OladimejiAkinola who testified in this Court on Wednesday 14th October, 2015 in respect of that paragraph on page 1, paragraph 3 and on page 2, paragraphs 2 – 3 of his written statement on oath which he adopted before this Court and that of D.W. 1, Mr. Felix Olatise, who testified in this Court on Thursday, 4th June, 2015 also confirmed the said paragraph under cross-examination by stating that he worked for the defunct Co-operative bank Plc. and after meeting the criteria laid down by the defendant, he was re-absorbed and given a new letter of appointment. Counsel further stated that other issue as raised in the claimant’s written address has been addressed by the defendant.
COURT’S DECISION
I have gone through the facts of this case, the written arguments of the parties and their cited authorities; from all of these, I am of the considered view the only issue to resolve here is:
Whether or not there was any contract of employment between the parties and whether or not the claimant is entitled to the reliefs he is seeking for.
Was there any contract of employment between the Claimant and the defendant?
By the averments in paragraphs 1, 2, and 3 of the statement of facts and paragraphs 1 and 2 of the statement of defence, it is not in dispute between the parties that the claimant was employed by the default Cooperative bank Plc.; one of the Banks that merged together to become Skye Bank Plc. (the defendant) in this case.
The position of the claimant’s counsel is that, upon the merger of Cooperative Bank with some other banks to form Skye Bank Plc.; the defendant takes over all the assets and liabilities of the subsuming banks, which include the Cooperative Bank Plc. immediately after January 2006, following the legal consolidation. He maintainedthat it is the duty of the defendant to inform all its employees of any new development in the bank and in any case of any renewal of employment status, the defendant has the duty to invite all its employees including the claimant for any such exercise.
On the other hand,counsel to the defendant submitted that the claimant was never an employee of the defendant because his contract of employment with the default Cooperative Bank was determined in 2004 before the merger of the banks that created the Skye Bank Plc. in year 2006 and also because that contract was one of personal service, which is not assignable to the defendant.
In this circumstance, can it be said that the defendant took over the asset and liabilities of the default Cooperative Bank in respect of the claimant’s employment or that the claimant was a staff of the defendant?
From the evidence before the Court, parties are in agreement that the defendant came into existence in January 2006 after the merger of some Banks, including the Cooperative Bank Plc.By the content of Document D.5 before the Court, the letter of Summary Dismissal was issued to the claimant by the default Cooperative Bank Plc. on March 10, 2004; almost two years before the said merger of Banks to form the defendant. There is nothing before the Court to show that the defendant took over the assets and liabilities of the default Cooperative Bank in respect of the claimant’s employmentcouple with the fact that the claimant’s employment was already determined by summary dismissal prior to the merger. There is no evidence to the effect that regardless of his dismissal,the claimant eventually became a staff of the defendant.Although counsel to the claimant contended that upon the merger of Cooperative Bank with some other banks to form Skye Bank Plc., the law is quite clear that the Skye Bank Plc. takes over all the assets and liabilities of the subsuming banks including Cooperative Bank immediately after January 2006, following the legal consolidation; however, counsel did not state any law (either statute law or case law) on this contention. I, therefore, find that the claimant has failed to justify this submission and so, I hold that no liability on the claimant was passed to the defendant by the default Cooperative Bank Plc.
Besides, the claimant is the one canvassing that he is a staff of the defendant; he is the one that has the onus to prove this assertion as required by the provisions of section 131(1) of the Evidence Act, 2011. See also the cases of Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083;Agboola v. UBA [2011] All FWLR (Pt. 574) 74 SC and Alade v. Alic Nig. Ltd. [2011] All FWLR (Pt. 563) 1849.
The law is that where no evidence is led to prove the averment in pleadings, Court considers such averment as vague and same is discountenanced. See the case of Help v. Silver [2006] All FWLR (Pt. 230) 1096 at 1110. Courts haveconsistently stated that the address of counsel, however brilliant, cannot take the place of evidence, particularly where there is no evidence in support of the submission; see the cases of UBN Plc. &anor v. Ayodare&Sons(Nig.) [2007] All FWLR (Pt. 383)1 at 42, paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 1623. It should be noted that it is not the duty of the Court to speculate in the absence of evidence, see Federal Mortage Bank v. Ekpo[2005] All FWLR (Pt. 248)1667 at1681.
Furthermore, the claimant is contending that he was wrongfully, illegally and unconstitutionally dismissed. He did not present to the Court his terms and conditions of employment that were allegedly breached by the defendant in determining his employment. In the case of African Examination Counsel v. Oshionebo[2015] 55 NLLA (Pt. 187) 165 at 189-190 paras D-A;Aderemi JCA at 189paras held that an employee who complains that he was wrongly terminated has the onus to place before the Court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of the employer who is a defendant to an action brought by the employee to justify the allegedbreach. This is the position of the law, which is contrary to the erroneous submission of the claimant’s counsel in paragraph 6.07 of his address at pages 179 to 180 of the record where he shifted this onus on the defendant. Since the claimant did not frontload his terms and conditions of employment that were breached by the defendant, I find and hold that he has failed to prove to the satisfaction of this Court that he was or is an employee of the defendant. In addition, I hold that the claimant was never an employee of the defendant. Since there is no contract of employment between the claimant and the defendant, I again hold that the claimant is not entitled to any of his reliefs before the Court against the defendant. This case lacks merit and it is accordingly dismissed with Fifty Thousand Naira (N50,000.00) Cost against the claimant to be paid to the defendant within 30days from today.
Judgment is entered accordingly.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
