Oderinde Remi -VS- FBN Microfinance Bank Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K. I. AMADI

DATED: OCTOBER 25, 2018 SUIT NO: LA/181/2014

BETWEEN:

ODERINDE REMI – CLAIMANT

AND

FBN MICRO FINANCE BANK LTD – DEFENDANT

REPRESENTATIONS:

Damilola Oyelola Esq. for the Claimant

Chukwuma Edechime Esq. for the Defendant

JUDGMENT

INTRODUCTION

The Claimant commenced this suit via a complaint with other accompanying documents dated the 15^th April 2014 and claiming for the followings:

The sum N2, 793,616.49 being salaries from September 2013 to March 2014 and other outstanding payments due to the Clamant.
The sum of N10, 000,000.00 being general damages for unjust and lawful persecution of the Claimant by the Defendant.
An Order mandating the Defendant to remit the sum of N229, 530.00 to the Claimant’s OAK Pensions RSA account.
An Order mandating the defendant to accept the resignation of the Claimant without any reservation.

The Defendant filed a memorandum of conditional appearance, statement of Defence and Counter Claim on the 3^rd October, 2014.

TRIAL

Trial commenced on the 17^th February, 2015. The Claimant opened his case and testified for himself as CW1 and tendered about 26 documents which were admitted and marked accordingly.

The Defendant on the other hand called two witnesses; Titilope Sodeinde and Enoh Innocent Asuquo

At the end of trial, the parties closed their cases and filed their respective final written addresses. The parties adopted their final written addresses on the 17^th day of May 2018, this judgment could not be delivered within the 90days window allowed for delivery of judgments for reasons which I have stated in my letter to the Chief Justice of Nigeria in that regard.

BRIEF FACTS OF THIS CASE

The Claimant who was employed by the Defendant on July 2009 tendered his resignation letter to the Defendant on the 7^th January, 2013 which resignation letter the Defendant refused to accept. The Defendant alleged that the Claimant committed series of fraudulent acts and that he wanted to resign in order to hide his fraudulent acts.

Consequently, the Defendant lodged criminal complaint against the Claimant and he was detained at the Special Investigation Bureau of the Nigerian Police, Panti Lagos, the Federal Investigation Bureau of the Nigerian Police Kam Salem House Moloney and Economic and Financial Crimes Commission (EFCC). It is the case of the claimant that none of these agencies indicted him while the defendant claimed that investigations are still on-going till date. It is the claimant’s further case that the Defendant refused to pay his salaries.

The Defendant on his own part stated that the Claimant being the Manager of a branch of the Defendant collected monies from customers meant for the Defendant and failed to remit them to the Defendant, that the Claimant granted loan facilities to some customers and fictitious persons without authorization. That the Claimant aided and abetted opening of fictitious corporate account in the name of Sunrise Group intended to defraud the Defendant.

ADDRESSES OF THE PARTIES

In his final written address the learned counsel for the Defendant raised three issues for determination thus;

Whether the Claimant has established his case against the Defendant
Whether the Claimant as the manager of a branch is liable and responsible for the transactions carried out in his branch.
Whether the Defendant is entitled to its claims and reliefs sought in the counter claim.

On issue one, Counsel argued that since the Claimant stopped working for the Defendant on his own accord on April 2013 whereas the Defendant paid him his salary until October 2013, the Claimant is not entitled to the claim for salary up to March 2014.

Counsel submitted that the Claimant was unable to prove his claim for his entitlement to salary from September 2013 to march 2014 when he testified under cross-examination that he stopped work on April 2013.

Counsel submitted that the Claimant failed to prove his case and is not entitled to the claimed salary. Counsel urged this Honourable Court to so hold.

On issue two, Counsel submitted that the Claimant entered into a contract with the Defendant by virtue of Exhibit A1-A2, among numerous other responsibilities, to oversee and execute the entire business strategy and implement same in defendant’s branch. However, he did not only fail to deliver on the terms of his contract of employment, he was found wanting in the area of fraud committed in the bank. Having been indicted by the Defendant’s constituted Disciplinary Committee panel after being given fair hearing, the Claimant was found guilty of gross misconduct. That the Claimant under cross-examination, admitted that he collected N710, 000 and N950, 000 from one Mr. Ogunlesi, a customer of the Defendant and according to the record, such money was never paid in for the customer. Also, under cross-examination, he obtained loan from the Defendant on behalf of the same customer which loan was not paid back and when he left the bank, decided to sue the customer personally. That the Claimant could not also recollect how many times he collected money from that one customer. That One of the Field officers also objected to the Claimant’s intention to resign due to his complicity in opening of some fictitious accounts that would be difficult to recover without the help of the Claimant.

Counsel referred to the case of Ayan v State (2013)7 S.C (Pt. IV) 19 where it was held that:

“… the primary duty/responsibility of a trial Court is to decide living issues between the litigating parties before it and hand down justice to the deserving party after careful consideration of the evidence and the prevailing law where the balance of justice favours such a party’.

Counsel urged the Court to resolve this issue in favour of the Defendant.

In respect of issue three, Counsel submitted that the Defendant has proved its case against the Claimant by preponderance of evidence which the Claimant is unable to controvert. It is an established fact during cross-examination that on some occasion, the Claimant collected money from the Defendant’s customers which money was meant to be remitted to the Defendant but failed/neglected to remit same. It is as well not in doubt that as at the same material time when the Claimant was the Branch Manager of the Defendant, some fraud was committed and money belonging to the Defendant got missing under the very watch of the Claimant and up till today the money has not been recovered. All the above facts are established and proved to the Honourable Court and they were never controverted by the Claimant, so the court is bound to rely on them to give verdict. Counsel referred to the case SPDC Nig Ltd v Edamkue & 2 ors (2009) 6-7 S.C 100 Per Ogbuagu JSC “… the law is well settled that a trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his/its witness/witnesses. In such a situation, there is nothing to put or weigh on the imaginary or proverbial scale

Counsel concluded that the Defendant has succeeded in its counter claim against the Claimant who failed woefully to establish his case. Counsel urged the Court to dismiss the Claimant’s claim and grant the reliefs sought in the Counter claim.

The learned counsel for the claimant on his own part raised five issues for determination, thus:

Whether or not in accordance with the nature of Claimant’s employment the Claimant reserves the right to resign from his employment and if such right existed, whether the Defendant’s rejection of the Claimant’s intention to resign constituted a breach of such right as such unlawful.
Whether by virtue of the facts established before this Honourable Court the Claimant is entitled to his unpaid salaries and other entitlements between September 2013 to March 2014.
Whether by virtue of the facts already established before this Honourable Court, the Claimant has established his claims of being unjustly and unlawfully persecuted and prosecuted by the Defendant.
Whether or not with reference to the required standard of proof the Defendant has discharged the burden of proving its claims against the Claimant thereby entitled to its Counter claim.
Whether or not the Claimant was afforded fair hearing by the Defendant in the prosecution of the Claimant by the Defendant.

On issue one’ Counsel argued that relationship between the Claimant and the Defendant was one of master and servant entitling any of the parties the right to determine the contract following the terms thereof. Counsel referred to the case of TOS Benson v. S. A. Onitiri (1960) NSC 52 where the Court held that “there is a right to resign unless there is reason to show that the holder of the office cannot… A power of resignation to those competent to receive it is by law incident to every corporate office”

Counsel argued further that the flimsy reason adduced by the Defendant for refusing to accept the resignation of the Claimant on the ground that the loans granted by the Claimant would best be recovered with the assistance of the Claimant. Counsel submitted that the power to approve loans to customers resides with the Managing Director/CEO who equally controls the loan recovery team. That the accusation of granting bad loans made against the Claimant are unfounded, hence none of the security outfits to which the Defendant made a report against the Claimant indicted him. That the refusal to accept the resignation of the Claimant by the Defendant is a breach of Claimant’s right of resignation. Counsel urged the court to so hold.

On issue two, Counsel submitted that the Claimant is entitled to his salaries especially as the contract between the parties is still subsisting by virtue of the refusal of the defendant to accept the resignation of the Claimant. That the Defendant has no justification to continue with holding the Claimant’s salary and or refuse to remit the Claimant’s Pension contribution to his Pension Retirement Savings Account through his Pension Managers; O. A.K Pension Managers from September 2013 to March 2014.

Continuing Counsel argued that the payment of salary to the Claimant by the Defendant from February 2013 to August 2013 amounts to acknowledgement of the fact of a subsisting contract of employment between the parties. Therefore, the Defendant should not be heard to claim with regards to the remaining salaries owed the Claimant. That the Claimant whose resignation was rejected by the Defendant never stopped work save that the Defendant deliberately blocked him off from accessing the Defendant’s computers. That it was an intentional act of the Defendant to make it difficult for the Claimant to work.

Counsel urged the Court to hold that the Defendant should not be allowed to benefit from its wrongful acts. That having refused resignation of the Claimant, it is fair and just to agree that the Claimant is still in the employment of Defendant therefore entitled to his salaries and Pension. Especially as the rejection of Claimant’s resignation by the Defendant robbed the Claimant of other job opportunities available for him.

Counsel urged this Honourable Court to find and hold that the Claimant till instituting this action, remained a valid employee of the Defendant entitled to all entitlements accruing to him.

On issue three Counsel submitted that the refusal to accept resignation of the Claimant by the Defendant was nothing more than persecution and prosecution.

Counsel argued that since the EFCC and other detachment of the Nigeria Police Force detained the claimant at various times which were activated against the Claimant by Defendant amounted to unjust persecution and prosecution particularly as the claimant was not indicted by any of the above agencies. Even worse was that at the said period of incarceration of the Claimant by the Defendant his salary was stopped. Counsel deemed it as oppression and urged this Court to hold so.

In respect of issues four and five Counsel submitted that by Section 135 (1) of the Evidence Act 2011 that allegation of crime in civil proceeding must be proved beyond reasonable doubt. Counsel cited Ukeje v Ukeje (2014) Vol 3-4 MJSC 132 where the Court held that: “By virtue of the provision of Section 138 (1) EA where a fraud is alleged in a suit it must be pleaded, particulars given and established in the evidence in proof beyond reasonable doubt”

Counsel submitted that the Defendant failed short of the requirement thereof. Counsel urged this Honourable Court to dismiss the Counter claims for lacking in merit.

Counsel argued that the Claimant was not given fair trial and hearing by the panel constituted to investigate the Claimant in that the said panel was made up of the agents of Defendant. That this amount to the Defendant being a judge in his own case which offends the principle of law and natural justice. In like manner the Defendant never availed the Claimant the panel’s report which this Court has no evidence of such report. Counsel cited the case of Aiyetan v Nigeria Institute for Oil Research (1987) 3 NWLR (Pt 59) 48 @ 76-77 and submitted that the Defendant grossly violated the Claimant’s right to fair hearing in the process of investigation by its panel. Counsel urged this Honourable Court to grant the reliefs sought by the Claimant as well discountenance the counter claim and dismiss same.

The Learned Counsel for the Defendant filed a Reply to the final written address of the Claimant wherein counsel submitted that by virtue of Exhibit A-A2 (Letter of Employment), it is stated in page 2, “your employment including the probation will be governed by the terms and conditions of service, a copy of which will be provided to you”. The said terms and condition was consequently provided to the Claimant in form of Hand Book which is Exhibit Z. According to the Exhibit Z in paragraph 8.11(A), “After confirmation, employment may be terminated by either side, giving the other one month notice or payment of equivalent amount of basic salary in lieu of the required notice period with proper handover note submitted to the immediate supervisor… officers on manager’s grade and above would be required to give three months’ notice or payment of equivalent amount of basic salary in lieu of notice with proper hand over note. However, the bank reserves the right to refuse resignation notice or payment in lieu of notice in any of the following circumstances: if the employee is suspected of involvement in an incident subject of internal/police investigation or the member of staff has a case pending before the Disciplinary Committee or has outstanding commitment net of terminal benefit”.

Counsel submitted that it is trite law that once there is a contract of employment, it suffices to say that there is an agreement between the employer and employee and both are bound by the terms and conditions contained therein, so anything done outside the agreement is ultra vires, null and void to the extent of its non- compliance and inconsistence. Counsel referred to the case of Nwaka v Shell Petroleum (2003) All NLR 456 at 465 and Ifeta v Shell Petroleum (2006) 4Sc (pt. 1) 45 where the court per Ayoola JSC held that:,

When parties make a contract, they make their own law to which they are subject and which creates the rights and obligations which bind them to which the General law only gives recognition and force. The common law we practice recognizes the freedom of contract.

Counsel urged the Court to dismiss the main suit and grant the reliefs sought in the counter claim.

COURT’S DECISION

I have read all the processes filed by the parties in this suit. The final written addresses of the parties including the reply of the defendant to the final written address of the claimant are hereby incorporated into this judgment and specific reference shall further be made to them where necessary. In my view, all the issues raised by the parties can be summarized into one issue, that is; whether the parties are entitled to their claims. I shall therefore resolve this sole issue by treating the claims of the parties seriatim as follows:

Claim one is for the sum N2, 793,616.49 being salaries from September 2013 to March 2014 and other outstanding payments due to the Clamant. The learned counsel for the defendant in his final written address submitted that “the Claimant in his evidence admitted to have been the Branch manager of the Defendant’s branch at Ikotun from July, 2009 to April, 2013 when he stopped working with the Defendant. Nonetheless, he was paid his salary from the inception of his duty till October 2013. The Claimant on the other hand, is now claiming salary from September, 2013 to March, 2014 despite the fact that in accordance with his testimony under cross-examination, he stopped working with the Defendant in April, 2013.”

The claim that the Claimant stopped working for the Defendant in April 2014 is not supported by the pleadings of the parties. The Claimant under cross examination said that the last time he went work was on the12th of April, 2014. Not only that, by Exhibit T, a letter, dated October 2013 and captioned ‘Re: Application for Release of salaries’, the Defendant paid the Claimant his withheld salaries up to August 2013. The letter did not state that the Claimant had left its employment as at that date. The pleading of the Defendant is that the Claimant is an employee of the Defendant “who tendered his resignation letter dated 7^th January 2013, but which resignation has not been accepted by the Defendant”.

In view of the foregoing, I find that the last date that the Claimant worked for the Defendant was on 12^th April 2013, he is therefore entitled to his full salary for the months of September 2013 to March 2014. From Exhibit T, his salary is N144, 312.50 per month that will give N1, 010,187.5. Also having worked up to the 12 day of April 2014 the Claimant is entitled to approximately the sum of N72, 160.75 prorated.

I have to state here that apart from the sum representing the salary of the claimant as claimed “the other outstanding payments due to the Clamant” were not pleaded nor particularised, I therefore hold that they were abandoned and therefore refused.

The second claim is for the sum of N10, 000,000.00 being general damages for unjust and unlawful persecution of the Claimant by the Defendant. It is important to state here that service of a letter of termination is very crucial, the reason being that it automatically becomes effective from the moment of service. In Yesufu v Governor of Edo State (2001) 13NWLR (Pt.731) 517 at532-533per Ogundare, J.S.C.(as then was)theCourt held that:

A notice of resignation of appointment

becomes effective and valid the moment

it is received by the person or authority

to whom it is addressed. This is because

there is absolute power to resign and

no discretion to refuse to accept notice

and it is not necessary for the person

to whom the notice of resignation is

addressed to reply that the resignation

is accepted.

Also, it was held that resignation need not to have been formally accepted by the respondents before taking effect. See T.O.S. Benson v. A. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177.

The Learned Counsel for the Defendant has justified the refusal of the Claimant from resigning on the proviso in his contract of employment thus:

However, the bank reserves the right to refuse resignation notice or payment in lieu of notice in any of the following circumstances: if the employee is suspected of involvement in an incident subject of internal/police investigation or the member of staff has a case pending before the Disciplinary Committee or has outstanding commitment net of terminal benefit.

But there is no evidence that the Claimant was suspected of involvement in an incident subject of internal/police investigation or a case pending before the Disciplinary Committee before that 7^th day of January 2013 when he tendered his resignation letter. The idea is not for the Defendant to refuse the resignation of its employee on trumped up or flimsy reasons because the law is settled that an employee cannot compel the employer to retain him no matter how desirable that may be on humanitarian or other grounds. In as much as, the same way an employer cannot compel an employee to remain in his service no matter how indispensable his services may be to his employer see Odinkenmere v. Impresit Bakolori (Nig) Ltd (1995) 8 NWLR (Pt. 11) p. 52 at 66. I therefore hold that the Defendant was wrong in refusing or preventing the Claimant from resigning.

However though it is very wrong for the Defendant to have reported the case against the Claimant to three different investigative and or security units that is; the Special Investigation Bureau of the Nigerian Police, Panti Lagos, the Federal Investigation Bureau of the Nigerian Police Kam Salem House Moloney and the Economic and Financial Crimes Commission (EFCC), the claimant failed to plead the details of his said detention that is; the dates of his arrest, the length of his detention and so no. He equally led no evidence to show that the report of the Defendant were frivolous and unwarranted , consequently, this claim is refused.

Claim three is for an Order mandating the Defendant to remit the sum of N229, 530.00 to the Claimant’s OAK Pensions RSA account. The Claimant did not led evidence on how this amount was arrived at consequently this claim is refused.

Claim four is for an order mandating the Defendant to accept the resignation of the Claimant without any reservation. I have held that the Defendant was wrong in preventing the Claimant from resigning following the tendering of his resignation letter. Since the Claimant stopped going to work on that 12^th day of April 2014 I hold that date to be the effective that of his resignation.

I shall treat the counter claim.

The Defendant Counter claimed against the Claimant and sought the following reliefs:

The sum of N15,671,906.74 being the Claimant’s indebtedness to the Defendant as at August 22, 2014 incurred as follows:

The sum of N3,394,578.24 being the amount collected from Mrs. Yetunde Adeyemi by the Claimant on behalf of the Defendant but not remitted to the Defendant

The sum of N3,017,337.21 being the amount outstanding on the account of a fictitious group, “Sunrise Group” formed by the Claimant and his agents

The sum of N7, 709,102.47 being the amount collected by the Claimant from Mr. Ogulesi Nasiru on behalf of the Defendant but not remitted.

The sum of N1,550,888.82 being the outstanding of an amount collected by the Claimant from the Defendant under the pretext of giving a loan to his wife, Mrs. Oderinde Bunmi.

Interest on the said sum at the rate of 10% from 22^nd August, 2014 until judgment is delivered and 21% after judgment until the full amount is paid

iii. Cost of litigation in the sum of N1,000,000.00

In respect of claim 1(a) above the Claimant/ Defendant to the counter claim was confronted under cross examination of the fact that she collected money from Mrs. Yetunde Adeyemi for the defendant and failed to remit same. He denied that accusation completely. The counter Claimant failed to call the said Mrs. Yetunde Adeyemi to testify or proffer any evidence in support of this assertion, I therefore hold that this claim has not been proved, consequently it is hereby refused.

In respect of claims b and d there is no evidence before the Court that the Claimant did not follow due processes in granting the said loans. There is equally no evidence which shows that the Claimant stood surety for the repayment of the loans, in view of the foregoing, these claim are hereby refused.

In respect of claim C, the Claimant admitted receiving money on two occasions from Mr. Ogulesi Nasiru on behalf of the Defendant; the first being the sum ofN710, 000 which he said that he paid into the customer’s account the following day. And N950000 which he claimed that he gave to Mr. Ogulesi Nasiru’s account’s officer who disbursed the money as instructed. There is no evidence in support of this claim consequently this Counter claim is refused. In sum the Counter failed completely.

In sum I make the following orders:

The Defendant shall pay the Claimant the sum of N1, 082,347.75, being his unpaid salary from September 2013 to the 12 day of April 2014.
I hold that the Claimant effectively resigned from his employment with the Defendant on that 12th day of April 2014
. All other claims of the Claimant are hereby refused.
The counter failed in its entirety and consequently dismissed.
The Defendant shall pay the Claimant the sum of N100, 000.00, being cost of this suit.
The Defendant shall pay all monetary awards in this judgment on or before the 30^th day of November 2018 failing the shall 20% per annum until they are fully liquidated Judgment is entered accordingly.

………………………………….

Hon. Justice K. I. Amadi, Ph.D.

Judge