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National Industrial Court

MR. EMMANUEL MICHAEL -vs- ACCION MICROFINANCE BANK

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE P.A BASSI

DATE: MONDAY 9thAPRIL  2018  

 

SUIT NO: NICN/LA/416/2017

 

BETWEEN

 

  1. EMMANUEL MICHAEL           ……………         CLAIMANT

AND

ACCION MICROFINANCE BANK        ……………         DEFENDANT

REPRESENTATION

Agomuo Victoria                        ——–                 For the Claimant

Mrs. Bukola Smith          ——–                  For the Defendant

JUDGMENT

1.0            The claimant commenced this suit by way of a complaint filed on 30th August 2017 together with the accompanying originating processes. The claimant’s claim as endorsed on the general form of complaint and statement of facts dated 30th August 2017 is for the following reliefs against the Defendant:

  1. The sum of N881,871.77 (eight hundred and eighty-one thousand, eight hundred and seventy-one Naira Seventy-Seven Kobo) being the total outstanding entitlements due to him.

 

  1. Interest of 20% per annum on the judgment sum from the date of judgment until the final liquidation of the judgment.

 

  1. Upon being served with the originating processes of the claimant, the defendant filed a statement of defensedated 18thSeptember 2017along with a counter claim. In consequence of the defendant’s statement of defense and counterclaim, the claimant filed a reply to the statement of defense dated27th October 2017and also filed its defense to the counterclaim on the same date.

  1. At the trial, the claimant testified on his own behalf as CW and adopted his two Witness Statements on Oath. He tendered Exhibits C1 TO C11into evidence as exhibits without objection and also without prejudice to the right of the defendant to raise any objections as to the admissibility of the said exhibits and/or their evidential value in its final address.

 The defendant on its part called one witnesses: Mr.Joseph Okoro who testified as DW. At the close of evidence, the Court ordered the filing of final written addresses. The final written address of the Defendant is dated and filed on 23rd November 2017, while the claimant’s is dated 11th of December 2017. The defendant’s reply on points of law is dated and filed on 29th of December 2017. On the 10th of January 2018, parties adopted their respective Final Addresses and the matter was adjourned for judgment.

THE CASE OF THE CLAIMANT

 

  1. It was the case of the claimant that he was employed by the Defendant as the Head of Human Resources on Manager Grade 2, on 24th September 2011, to take effect from 1st January 2011. The Claimant also states that upon a review sometime in 2015, owing to his meritorious service, he was promoted to Senior Manager in 2015 and his salary was increased. On the 15th April 2016, the Claimant notified the Defendant of his intention to resign from the employment of the Defendant, effective 31st May 2016.

  1. It was the claimant’s testimony that when he resigned in May 2016, he was entitled to a number of benefits which amounted to a total of N2,278.739.38. (Two Million, Two Hundred and Seventy-Eight Thousand, Seven Hundred and Thirty-Nine Naira, Thirty-Eight Kobo only). He testified that the breakdown of this figure was;

(i)    N84,218.75 which was his prorated club membership allowance for the period of January-May 2016 which he worked

(ii) N175,355.78 which represented his prorated Leave Allowance for January – May 2016

(iii)           N96,250 which represents his prorated annual travel ticket for January – May 2016

(iv)            N146,129.81 which represents his prorated 13th month salary

(v)              N621,715.94 which represents his Leave encashment for 39 days outstanding in accumulated leave

(vi)            N717,971.85 which represents his 2015 year-end productivity bonus

(vii)         N414,532.00 which represents the Share Buy-back and the dividend on it worth N22,565.25

  1. The Claimant placed reliance on his 2014 year-end merit increase and the defendant Human Resources Policy Manual. That however, the defendant wrote to him on the 8th of June 2016 stating that he (the claimant) was indebted to the defendant. That he replied the defendant he owed the defendant the sum of N982,335.61 which if deducted from the total amount due to him, would leave a balance of N1,296,403.77 furthermore, that the share buy-back due to him was paid by Stanbic-IBTC Trustees thereby leaving the total amount due to him as N881,871.77.

  1. In paragraph 22 of his statement on Oath which was adopted in court, the claimant averred that it has been the norm for these sums to be paid without more as they are part of Reimbursable and productivity pay due to him as a Senior Manager under his salary breakdown.
  2. That the Defendant, in a bid not to pay his entitlements, wrote him
    a letter with its attachment dated the 8th of June 2016, claiming
    that he was indebted to the Defendant and that it was the practice
    of the bank for exiting staff not to be paid their entitlements in
    the same month of their exit.
  3. That he avers strongly that it is indeed the practice of the Bank for
    exiting staff to be paid in the month of their exit and this has been
    the practice over time. That the Defendant wrote to him letter of 8th of June 2016 stating that he (the claimant) was indebted to the defendant and further avers that the letter of 8th of June was misguided as it is the Defendant that is indebted to him.

  1. The claimant’s documents were admitted as exhibits and marked as follows;

Letter of Appointment dated 24/9/2010 Exhibit C1

 
Letter of 2014 Year End Merit Increase Exhibit C2

 
Letter of Resignation 15/04/2016 Exhibit C3

 
Accion Microfinance Bank Human Resources Policy Manual Exhibit C4

 
Defendant’s Letter of 18/7/2016 Exhibit C5

 
Claimant’s Letter of 18/7/2016 Exhibit C6

 
Defendant’s Letter of 9/8/2016 Exhibit C7

 
Claimant’s Letter of 12/9/2016 Exhibit C8

 
Claimant’s Letter of 30/6/2016 Exhibit C9

 
Accion Microfinance Bank Limited Performance Planning & Evaluation Form 2015 Exhibit C10

 
Defendant’s Performance Bonus Policy 13/6/2012 Exhibit C11

 

  1. Under Cross Examination by the Defendant’s counsel, Mrs. Bukola Smith on the same day, the claimant admitted taking 2 loans from the Bank but testified that he had liquidated the loan from his exit benefits from the bank on the last day of his exit. He did not agree that he still owed the bank any amount but rather it is the Bank that owes him. He was insistent that he did not have any outstanding loans with the Bank and was Head, Human Resources at the Bank and had adhered strictly to the policies of the Bank. The claimant further admitted that Letters were written to him regarding outstanding indebtedness to the Bank and he responded pointing out to the Bank that the computation was wrongly done and that the Bank was still owing him.
  2. There was no re-examination and with the conclusion of his evidence, the Claimant closed his case.

CASE OF THE DEFENDANT—( FEDERAL MORTGAGE FINANCE LTD VS EKPO -2004 2 NWLR PT 856,100) 2003 LAW PAVILLION—- MOHAMMED DUNGUS)

  1. The Defendant opened its case on the 31st October 2017, and called Mr. Joseph Okoro, Compensation and Benefits Officer in the Human Resources department of the Defendant Bankwho testified as DW. He adopted his Witness Statement on Oath deposed to on 18th September 2017. It was the case of the defendant that during the computation of the Claimant’s terminal benefits, it was observed that the Claimant had obtained 2 staff loan facilities of N500,000.00 in November 2015 and N800,000.00 in March 2016 which were unpaid as at the effective date of his resignation.

  1.  That the defendant consequently wrote a letter dated 8th June 2016, the Defendant informed the Claimant of the breach of policy and requested for the liquidation of his outstanding indebtedness in the sum of N660,850.02 (Six Hundred and Sixty Thousand, Eight Hundred and Fifty Naira, Two Kobo only) after the deduction of his terminal benefits.

  1.  That the defendant further informed the claimant on the 9th August 2016, that the Bank’s policy in paying exiting staff in line with its Human Resources Policy, processes and Procedures; the practice was that any staff exiting the bank would have his/her respective salary for the last month of resignation & terminal benefits paid to the staff, only after all the exit processes are completed and signed off by Management of the bank. That the Claimant deliberately refused to complete his exit process as evidenced in his exit clearance form.

  1. The defendant further contended that regarding theclaims for Club Membership and Annual Travel Ticket, the Defendant testified that these are reimbursable expenses as explicitly stated in the Claimant’s employment letter and promotion letter on salary/benefit reviews. That Such would only be payable upon presentation of necessary vouchers.

  1.  In proof of the above assertion and to show that this process had always been adopted by the Claimant, the defendant relied upon vouchers prepared by the claimant for the annual travel ticket and club membership throughout his employment with the Defendant. In particular, the defendant relied upon an email from the claimant to Kenya Airways in September 2015 for support documentation for use in making a claim for his air ticket allowance. The defendant testified that this process was always enforced by the claimant on other staff in his capacity as Head of Human Resources with the Bank.

  1. That although the Defendant has made requests for evidence that these expenses were incurred by him in 2016 prior to his exit for the reimbursement of these expenses for 2016, the Claimant has failed to present the requested documentation and so cannot lay claim to these expenses having failed to present evidence of having actually incurred these expenses.

  1. In the same vein the defendant testified that the Defendant’s records, it observed that the Claimant’s leave requests were approved and taken by him with no request made by him to utilize his outstanding leave days before his exit from the Bank and that the encashment of unspent leave was not automatic but subject to certain conditions as laid out in the Defendant’s Human Resources Policy Manual which provides;

‘It is the policy of the Bank that all leave must be taken whenever it falls due. In circumstances where it is not possible for the staff member to proceed on leave, then the Unit Head may recommend encashment through the departmental head, giving sufficient reasons. Based on the justification by the unit head, the Head of Department may then recommend the leave for approval by the head of Human Resources or decline and advise the unit head accordingly. As a policy leave will only be encashed where it is established beyond reasonable doubts that due to the exigencies of services; the employee will not be able to proceed on leave. In all other circumstances, unit heads will be expected to reschedule leave to allow the employee to take rest so that his productivity can improve.

 

The CEO has the discretionary right to approve sale of due leave by any/all employees. In this case of mass approval, she/he will issue a memo to this effect advising all staff that leave has been cancelled, stating the reasons and giving the window for encashment. In case of an individual, she/he will assign his signature as a sign of approval for the same. Such leave approved for encashment will be paid on the next payroll date and on the month it falls due.”

Consequently, the defendant contended that the claimant is not entitled to encashment of 39 unspent leave days.

  1. Mr. Okoro further testified that in line with the Defendant/Bank’s Staff Incentive Scheme Policy which states that on termination and/or resignation, no incentive shall be calculated for an exited staff, the Claimant is not entitled to the 2015 Year End Productivity Bonus approved by the Board in June 2016 after his exit from the Bank even if the performance appraisal had been concluded with his Line Supervisor particularly as the Claimant failed and or neglected to submit his documented appraisals within the stipulated period until his resignation. The Defendant relied on the mail from its Human Resources Department notifying all staff on the deadline for submission and the Claimant’s email of 16 May 2016 evidencing the date of submission of his personal appraisal.

  1.  The defendant also relied upon the 2015 Board Audit Report and the detailed assigned tasks for implementation by the Claimant in proof of its claim that the claimant performed below expectations and did not merit the incentive award.

  1. Joseph Okoro tendered 15 documents on behalf of the defendant and concluded his testimony on the 8th November 2017. He was cross-examined by the Claimant and discharged as there was no re-examination
  2. The Defendant closed its case and parties were ordered to file their respective final written addresses and the 14th December 2017 was fixedfor adoption of final written addresses.

 

FINAL ADDRESS  SUBMISSIONS OF THE DEFENDANT

 

  1. The defendant submitted a sole issue for the determination of this matter, namely:

“Whether having regard to the facts and circumstances of this case, the Claimant has established its entitlements to the reliefs sought against the Defendant in this case?”

  1. The defendant however raised a Preliminary Point that this suit is incurably defective by reason of the fact that there is no proper defendant known to law before this Honourable Court. Consequently, the only available course open to Your Lordship is to strike out the suit. Counsel submitted that this suit was instituted against a wrong party and there was wrong service of the originating processes in this suit on the Defendant.
  2.  Counsel relied upon Section 37 of the Companies and Allied Matters Act, 1990 Cap. C20, Laws of the Federation of Nigeria, 2004 (“CAMA”) and the cases of Iyke Medical Merchandise vs. Pfizer Inc. (2002) FWLR (Pt. 53) pg. 77,Njemanze vs. Shell B.P. Port-Harcourt (1966) 1 ALL NLR pg. 8 at 10,Njemanze vs. Shell B.P. Port-Harcourt (1966) 1 ALL NLR pg. 8 at 10, and Idanre L.G. vs. Governor of Ondo State (2010) 14 NWLR (Pt. 1214) pg. 509.
  3. The crux of the Defendant’s argument is that that its registered name as stated in its certificate of incorporation is “Accion Microfinance Bank Limited”and that the instant suit was instituted against “Accion Microfinance Bank”, which is clearly different from the Defendant’s registered name and in effect different from the Defendant and is therefore not a juristic person known to law, capable of being sued. The defendant further relied upon Dr. E. J. Esenowo vs. Dr. I. Ukpong& Anor. [1999] 6 NWLR (Pt. 608) pg. 611.
  4. The Defendant finally submits that it is not the named defendant in this suit and consequently, that it is not a party to this suit.Importantly, that there was no contract of employment between the Claimant and “Accion Microfinance Bank” capable of being enforced against “Accion Microfinance Bank” in this court.
  5.  It therefore prayed the court to strike out this suit.
  6.  To the main issue for determination, the defendant submitted that the Claimant was offered employment by the 1st Defendant, the terms of which were governed by Exhibit C1 and Exhibit D4, the HR Policy of the Defendant and that he has not established his entitlement to the reliefs sought in this suit even on a preponderance of evidence or a balance of probability.

  1. Prior to his resignation, the Claimant had obtained two staff loan facilities from the Defendant totaling N1,300,000.00 from two facilities of N500,000.00 and N800,000.00 in November 2015 and March 2016 respectively. As at the effective date of resignation of the Claimant on 31st May 2016, the above facilities had not been repaid. What simply happened was that after the deduction of the Claimant’s terminal benefits, following his resignation, from the sum owed by the Claimant, the outstanding sum owed to the Defendant by the Claimant stood at N660,850.00. Counsel submitted that from a reading of the documentary evidence and the testimonies of the solitary witness on either side, that is the sum total of the case.
  2.  On whether the claimant is entitled to the club membership allowance of N84,218.75, counsel submitted that that parties are bound by the terms of their agreement. Thus, where parties enter into a contract, they are bound by the terms and the court will not allow to be read into such contract terms on which there is no agreement. Counsel relied upon the cases of JFS Investment Ltd vs. Brawal Line Ltd (2010) 18 NWLR (Pt. 1225) 495,  Arjay Ltd. vs. A.M.S. Ltd. (2003) 7 NWLR (Pt.820) 577 and Etco (Nig) Ltd vs. G & T Inv. Ltd (2011) 3 NWLR (Pt. 1234) pg. 302 at 321-322
  3.  Counsel argued that by the provisions of Exhibit D4, the Defendant submits that the Claimant was not entitled to the payment of the Club Membership allowance without proof of actual expenditure.Defendant the court to paragraph 8(iii) of the Statement of Defence where the Defendant stated that the Club Membership and Annual Travel Ticket Allowance were reimbursable expenses as provided for in the Claimant’s Letter of Employment (Exhibit C1) and the Claimant could only have been entitled to such refund/allowance upon presentation of the relevant receipts/vouchers.  That the Claimant could only have been paid same if he established his entitlement to them. This, the Claimant failed to do counsel submits.Counsel urged the court to dismiss this claim

  1.  Learned Counsel also adopted the same argument regarding the issue of Whether the Claimant is entitled to the payment of Annual Travel Ticket allowance from January – May 2016 in the sum of N96,250.00. counsel submitted that the Claimant did not also show that he embarked on any travel in that period to be so entitled. Counsel urged the court to dismiss this claim.

  1.  On Whether the Claimant is entitled to leave encashment for 39 working days outstanding in accumulated leave in the sum of N621,715.94, the defendant relied upon Clause 9.12 of Exhibit D4 and submitted that the claimant never submitted any request for his outstanding leave and so he cannot therefore turn around and claim entitlement to any leave encashment. Defendant urged the court to dismiss this head of claim.

 

  1. On whether the Claimant is entitled to the sum of N717,971.85, the defendant submits that the claimant is not entitled to claim that sum as 2015 Year End Productivity incentive as the claimant exploited his position as Head of Human Resources of the Defendant and conducted a self-appraisal wherein he ascribed to himself an appraisal score without his line supervisor’s input which run afoul of the Defendant’s policy. Exhibit C1 and Exhibit D4 were once again relied upon. The Defendant also argued that in line with its Incentive Scheme Policy, having resigned in May 2016, the Claimant was not entitled to the 2015 Year End Productivity Bonus approved by the Board of the Defendant in June 2016.

  1. The defendant also referred to the Defendant’s 2015 Board Audit Report Exhibit D6, which counsel argued  that the Human Resource Management department of the Defendant, then headed by the Claimant was rated below average and the Claimant was directed to present a progress report to the Board of the Defendant Bank on the exceptions raised in the Audit. In summation, the court was asked to hold that the claimant was not entitled to that head of claim and to dismiss same.

  1. Apart from the above, the Defendant submited that the other claims of the Claimant have been fully paid and these account for why the Claimant’s outstanding indebtedness on the two loan facilities obtained from the Defendant reduced to the sum of N660,850.00 (Six Hundred and Sixty Thousand, Eight Hundred and Fifty Naira). It therefore prayed the court to dismiss the claim of the defendant in its entirety.

 

5.1             As Regards its counter-claim, the Defendant submitted that  whilst in its employment, the Claimant obtained two staff loan facilities totaling N1,300,000.00 (One Million, Three Hundred Thousand  Naira) broken down into two facilities of N500,000.00 and N800,000.00 in November 2015 and March 2016 respectively and  as at the effective date of resignation of the Claimant on 31st May 2016, the above facilities had not been repaid, in breach of the Defendant’s policy.It further submitted that  the Claimant admitted this much in paragraph 3 of his Reply to Statement of Defence. It argued that what is admitted needs no further proof placing reliance on the cases of Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 189; Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt. 375) 34 at 53.

  1. It therefore urged the court to hold the counter-claim as proved and to grant its claims.

FINAL ADDRESS  SUBMISSIONS OF THE CLAIMANT

  1.  The claimant raised a first preliminary point that the defendant frontloaded series of documents and failed to tender same into evidence at trial. It contended that that any document pleaded and frontloaded by a party but not pleaded, is deemed abandoned. It therefore urged the court to discountenance these documents. It relied on CHIMA UME & ORS VS CHRISTIAN UCHECHUKWU IBE (2016) LPELR- 40080(CA), OBA R.A.A OYEDIRAN OF IBONLAA VS HIS ROYAL HIGHNESS OBA ALEBIOSU II & ORS (1992) 6 NWLR (PT 249) 550 @ 556.
  2. The claimant in reply to the defendant’s preliminary point, submitted that the defendant’s preliminary point was not sustainable as Defendant submitted to jurisdiction, did not object to the suit and participated throughout the proceedings, therefore the Defendant cannot now raise the issue of impropriety in its name. That the defendant entered unconditional appearance, the witness for the defendant did not state that the defendant on record was not his employer and that the defendant had not shown what injury they stand to suffer by being sued in this name. That

  1. Counsel further submitted that there must be a doubt as to the identity of the person intending to sue or to be sued for such misnomer to vitiate proceedings. counsel placed reliance on ACB VS EUROSTRADE LTD (1998) 2 NWLR (PT 536) 19 and urged the court to discountenance the submissions of the defendant on that point particularly as facts admitted need no further proof. The defendant had in its paragraph 1 of its statement of defense dated 18th day of September 2017 stated that it admitted paragraphs 1,2,3,4 and 5 of the statement of facts. That the statement of facts admitted by the defendant is one which states what it was being sued as (the employer of the claimant). Counsel also relied on AGBANELO VS UNION BANK OF NIGERIA LIMITED(WARRI BRANCH) (1996) 1 ALL NLR 8 “IT IS TRITE THAT WHAT IS ADMITTED NEED NOT BE PROVED AND THAT PARTIES ARE BOUND BY THEIR PLEADINGS. IT WAS COMMON GROUND THAT THE DEFENDANT WAS UNION BANK OF NIGERIA LTD AND THAT IT IS AN INCORPORATED COMPANY. WARRI BRANCH WAS PUT APPARENTLY FOR THE PURPOSE OF SHOWING THAT THE DEFENDANT WAS CARRYING ON BUSINESS WITHIN THE JURISDICTION OF THE COURT”

  1. Counsel also relied on ONWUKA KALU VS CHIEF VICTOR ODILI (1992) 6 SCNJ 76 where the SC held that “where parties and the court are not misled and there is no miscarriage of justice as a result of misdescription of parties, such misdescription will not be fatal to the case. The claimant therefore urged the court to hold that the suit is properly constituted and disregard the objection of the defendant.

  1. Proceeding to the issues that in the claimant’s view arise for determination, the claimant submitted that;

(i)                Whether the defendant has a sustainable defense in this suit as presently constituted

(ii)             Whether the claimant is entitled to the reliefs sought.

  1.  The claimant submitted that the defense/ counterclaim were mere facts and were not supported by evidence. Claimant relied on the fact that the statement of defense/counterclaim is of 33 paragraphs while the statement on oath is of 14 paragraphs and did not touch on the facts pleaded in the statement of defense/counterclaim.
  2. Claimant further argued that facts pleaded and not supported by evidence are deemed abandoned. It relied upon OJEKAN VS OYEWOLE (2011) LPELR-4517 CA, JADOCOM LIMITED VS OGUN ELECTRICAL (2004)3 NWLR PT 589 PG 153 @ 184, NIGERIAN BREWERIES PLC VS IKYARKYASE & ORS (2015) LPELR 40409 CA and OKIN &ANOR VS OKIN (2016) LPELR 41165 CA. Specifically, the claimant urged the court to disregard paragraphs 4-15 and 17-33 of the Statement of Defense and Counterclaim and hold that what is before the court is the uncontroverted evidence of the claimant and prayed the court to act upon it.
  3. On issue two, the claimant submitted that it had made out its case for the grant of the reliefs sought as the parties are bound by their agreement. Counsel referred the court to Exhibits C1 & D4and opined that nowhere in the documents was there a provision that proof of expenditure must be submitted before a claim for club membership allowance can be made and urged the court to so hold. That even Exhibit D15 do not mention anything about presentation of vouchers for a valid claim.
  4.  The claimant maintained this same argument regarding the claim for Annual Ticket Allowance in the sum of N96,250.00 and urged the court to grant the relief.
  5.  Counsel referred the court to Clause 7.1 of Exhibit C1 and submitted that the Claimant having completed one year of uninterrupted service was entitled to leave and cannot be denied same. Counsel also submitted that Clause 9.12 of Exhibit D4 does not apply to the Claimant as he is no longer in the employ of the defendant. (NO SUCH QUALIFICATION IN THE EXHIBIT AND ONE CANNOT VARY CONTENTS OF AN AGREEMENT AT WILL). Claimant opines that the defendant admitted in the attachment to exhibit D2 that the claimant is entitled to outstanding 39 leave days and urged the court to grant this head of claim.
  6.  On the year 2015 year-end productivity bonus, the claimant submits that he had earned the money during his employment with the defendant and that the DW had testified during cross examination that there is no policy that states that exiting staff are not entitled to their salaries and entitlements. Counsel also argued that the incentive scheme policy that states that no incentive is calculated for an exiting staff was not tendered into evidence and exhibits C1 and D4 are silent on the nonpayment of year end productivity bonus for terminated/disengaging staff.
  7. Counsel further submits that Exhibit C10, the defendant never rejected the evaluation as submitted by the Claimant. That it was the bank’s policy for self-appraisal and submission of same to the line supervisor who could amend or make an input, or it stands as is in the absence of such amendment or input. (COUNSEL GIVING EVIDENCE?). That having given at least one-month notice, the claimant had complied with the provisions of Exhibits C1 and D4.
  8.  Finally, regarding his claims, Claimant counsel submits that the claimant is entitled to the prorated 13th month salary and prorated leave allowance for January-May 2016. Counsel referred to the attachments to Exhibits C2 and C5 where the entitlement of the claimant was stated and an acknowledgement by the defendant that it owed the claimant respectively.
  9. As regards the counterclaim, the claimant submitted that the defendant only made allegations of facts and did not place anything before the court in proof of same and urged the court to discountenance the counterclaim.
  10. Finally Counsel prayed the court to grant all the reliefs and discountenance the counterclaim.

          DEFENDANT’S REPLY ON POINTS OF LAW.

  1. The defendant in its Reply on points of law, contended that the Claimant had failed to point out which particular documents were frontloaded and not tendered. That all its documents had been admitted as exhibits and relied upon the records of the court. it urged the court to discountenance the submissions of the claimant on that point.
  2. However, the defendant merely rehashed its argument that it was not sued in its corporate name in response to the claimant’s defense to its preliminary point.

  1. The defendant submitted that the contention of the claimant that the Written Statement of the Defendant did not adopt all the paragraphs of the Statement of Defense and Counter-Claim is without legal justification. That there is no rule of law of provision of the rules of this Honourable Court that a Witness Statement must be a reproduction of the content of the party’s pleading. That the Defendant tendered the documentary evidence in support of the assertions in its Statement of Defense and Counter-Claim and same were admitted as Exhibits D1-D15 as borne out by the Record of Proceedings. Counsel also referred to Section 83 of the Evidence Ac 2011 which state that where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that facts shall also be admissible as evidence of that fact. It relied on the case of Eghareva v. Osagie (2009) 18 NWLR (Pt. 1173) 299 the Supreme Court held that documentary evidence is the best evidence. AndalsoOhiowele v. Ighodaro (2013) LPELR – 20291 (CA).

  1. The Defendant therefore urgedthe court to hold that the Claimant’s contention that it has abandoned its pleading or that there is no evidence before the court is misguided and lacking in merit and  to discountenance the Claimant’s argument and resolve Issue 1 against the Claimant.
  2. On the issue of the claimant’s reliefs and the counterclaim, the defendant simply restated its arguments from its final address and prayed the court to dismiss the claim of the claimant and grant its counterclaim.

COURT’S DECISION

  1. I have read all the submissions of counsel and the processes filed in this matter. I have evaluated the oral and documentary evidence as presented by both sides. I would however deal with the defendant’s preliminary point raised in its final address as it is a jurisdictional issue. The defendant contends that it was not sued in its right and proper name which counsel puts as “ACCION MICROFINANCE BANK LIMITED” as against “ACCION MICROFINANCE BANK” that appears on all the processes in this suit as the defendant. Counsel further argued that it is NOT the employer of the Claimant and that the defendant as named in this suit is NOT a juristic person. Claimant on the other hand contends that no miscarriage has occurred by suing the defendant without the word “LIMITED” in its name and that such a misnomer does not vitiate the proceedings.
  2.  In resolving this issue, I must point out that unless this sort of challenge is based only on law with no need for evidence, then evidence must be led as to the fact that takes away this court’s jurisdiction. Which brings me to the point that counsel on both sides cannot give evidence as no matter how brilliant their submissions are, it cannot take the place of evidence. The defendant on record is Accion Microfinance Bank. Submissions of defendant counsel that it is Accion MicrofinanceBank Limited in the final Address is not evidence of the fact that the defendant’s name includes the word “limited”. The admission by Claimant counsel on this point is also irrelevant as claimant counsel too, cannot give evidence of facts not before the court as elicited from witnesses or depositions in an affidavit. Nothing has been placed before this court to compare with the name of the defendant on record.

  1. However, the court would not close its eyes to the various exhibits before tendered before this court which bear the name “ACCION MICROFINANCE BANK LIMITED”. This clearly shows that there was an error in the name of the defendant in the processes before this court. I have read the decision of the supreme court cited by the Claimant counsel and I am in agreement that the circumstances of this case is like the one envisaged by the Supreme Court in CHIEF ONWUKA KALU VS CHIEF VICTOR ODILI & ORS (1992) LPELR-1653 (SC) where the Karibi-Whyte JSC( as he then was) held;

“ this court has declared emphatically in several of its decisions that where the error relied upon by a party to set aside a proceeding is clearly excusable, and is shown not to have misled the party complaining about the error, and it is clear that no injustice has been occasioned thereby the court will in the interest of justice not act to prejudice the party in error. This court is wholly concerned and interested in doing justice between the parties before it. In DIVISIONAL CHIEF GBOGBOLOLU OF VAKPO AFEYI VS HEAD CHIEF HODO(1941) 7 WACA 164 @ 165 the West African Court Of Appeal declared “ it is the duty of courts to aim at doing substantial justice between the parties and not let that aim be turned aside by technicalities” It seems to me unarguable that the appellant was misled by the misdescription in the notice of preliminary objection. Having opposed the motion for preliminary objection, it would be unreasonable for the appellant to contend that he was objecting to a non-existent motion………… in the instant case, the conduct of the Appellant amounts to a waiver of the irregularity since no hardship appears to have accrued to the appellant or cause delay(see BOBO VS ANTHONY (1931) 1 WACA 169)”

 

  1. I also refer to the decision of the court of Appeal in ENGINEER EMMANUEL CHUKWUEMEKA OKEKE v. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR-43781(CA)  where it had to decide onan issue similar to the defendant’s objection here.

Engr. Okeke sued Nnamdi Azikiwe Teaching Hospital over a contract. The matter went to arbitration and the hospital participated. The Arbitrator gave an award in favour of Engr. Okeke. When Engr. Okeke approached the High Court for the enforcement of the Award, the University raised an objection at this point and contended that the proper party to be sued was the Nnamdi Azikiwe University Teaching Hospital Board of Management in accordance with the law setting it up.

Their Lordships made the following pronouncements, which I consider very just and equitable and fully underscores the need for lawyers to pursue justice, instead of technicalities. The court held;

“Granted that the name used to describe a legal or juristic person may not be correctly or fully descriptive of that person, it does not detract from the fact that the person is nonetheless a legal or juristic person. I have to say that it is not the specific name under which is a person sued that decides whether or not the person is a juristic person. What determines that issue is whether or not a natural person exists who bears that name or a similar name or had in fact hitherto bore that name. If it is a creation of statute, it is the recognition of that artificial person under an extant law that is relevant. See Bank of Baroda v. Iyalabani Co. Ltd (2002) 13 NWLR Pt. 785 Pg. 551.

It is my humble view that there appears here to be a general error regarding the issue of juristic personality and one of misnomer of parties especially in a legal process. A misnomer has been described as occurring where the natural or legal person actually exists but a wrong name is used to sue. See Emespo Continental v. Corona S. MBH (2006) 11 NWLR Pt. 991 Pg. 365 at 378. Looking at the initiating process of the suit, there is no doubt that the Respondent would be in no doubt that it was the Management Board that was sued being the name that the Appellant ought to have used. The Appellant merely got the appropriate name wrong. This to me is a case of misnomer. See Mailafia v. Veritas Insurance (1986) 4 NWLR Pt. 38 Pg. 802 at 812.

The most important and relevant ratio in that case pertinent also to this case is that the Respondent never denied the existence of a contract between the parties by their pleadings before the Arbitral Tribunal, and their affidavit evidence to strike out the suit at the trial Court and the brief of arguments filed in this Court, neither did the Respondent deny that the Appellant had performed part of the contract between the parties and that the Respondent benefitted from the consultancy services of the Appellant. Their main argument has been that the “body” which contracted with the Appellant is not a juristic person.

In Sosan v. HFP Engineering (Nig) Ltd (2004) 3 NWLR Pt. 861 Pg. 546, Onalaja JCA went to town on how a Court of equity should deal with this type of situation. His Lordship stated unequivocally at page 573 as follows:-

“Apart from the principle of law involved in this case, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. In pursuance of the principle that law should serve public interest, the Courts have evolved the technique of construction in bonampartem”.

In Sosan v. HFP Engineering (Nig) Ltd (supra), the Appellant after benefitting from a contract, sought to declare the contract void because the Governor’s consent was not obtained before the sub-lease agreement was executed by the parties. The contract between the parties was one which would otherwise be unlawful.

I am also of the firm view that Section 169 of the Evidence Act 2011 on estoppel is very apt to the circumstances of this case. It states as follows:-

When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

I cannot agree with the argument of the Respondent’s counsel that the Appellant should have joined the Nnamdi Azikiwe University Teaching Hospital Management Board for the enforcement of his Arbitration award because the Respondent is not a juristic person.

In the circumstances of this case, I have to interpret the contract between the parties as one in bonampartem or bonafide. How was the Appellant to know the minute provisions of the Nnamdi Azikiwe University Teaching Hospital Act, when the Principal Officer of the Teaching Hospital namely the Chief Medical Director no less at the time entered a contract with him in the name of the Teaching Hospital simplicita and not in the name of the Board.

Bona fide means good faith, that is the standard of conduct expected from a reasonable person especially in making contracts and similar actions, acting without fraudulent intent or malice. It seems to me that the argument put up by the Respondent and accepted by the learned trial judge that the contract is void because the Respondent as named is not a legal entity smacks of an overt show of bad faith at best.

The interpretation of the contract must be done in such a way that we are bound by equity to ignore a literal interpretation of the name of the Respondent without the phrase “Management Board” and to assume that Teaching Hospital an aphorism of saying Teaching Hospital Management Board which had mobilised the Appellant to commence consultancy services, part paid contract sums and submitted itself to arbitration and even paid arbitration fees, cannot turn around to resile from the contract agreement and the arbitral proceedings it had submitted to and participated in.”Per OGUNWUMIJU, J.C.A. (Pp. 18-22, Paras. D-F).

“In this case, there is no doubt that the wrong description of the Respondent has not misled the Respondent. Also, hearing and determining the case with the name of the Teaching Hospital used in entering the contract between the parties instead of the Teaching Hospital Management Board would not have caused miscarriage of justice in the circumstances of this case. See Ajadi v. Ajibola (2004) 16 NWLR Pt. 898 Pg. 91; Bajoda v. Government of Nigeria (2007) All FWLR Pt. 394 Pg. 273.”Per OGUNWUMIJU, J.C.A. (Pp. 11-16, Paras. A-E)”

 

  1. Which brings me to the defendant’s own witness, Joseph Okoro who testified before this court that he is the “Benefits and Compensation Officer in the Human Resources Department of the defendant/bank in this suit”. Mr. Okoro testimony did not challenge the identity of the defendant he represented and in paragraph 2 of his deposition on oath averred that

“he has the authority of the defendant to make this Oath.”

Clearly ACCION MICROFINANCE BANK LIMITED was not misled as to the identity of the defendant and indeed was the employer of the claimant. So, this court would act in the interest of justice on the testimonyof a witness qualified and authorized to testify for the defendant and hold that the defendant was not misled about the error in its name, there is no doubt as to the identity of the defendant intended to be sued and was indeed sued and no miscarriage of justice has been occasioned by that error especially as the same defendant has also filed and prosecuted a counterclaim against the Claimant here in the exact same name. I so find and hold.

  1. Having held that the defendant was not misled and there has been no miscarriage of justice, this court would rely upon the following cases where amendments are permissible;

(i)                to correct a genuine mistake. See the case of SHOKUNBI VS MOSAKU (1969) NMLR 54.

(ii)             It would not cause injustice to either party. See ODUWAIYE VS ORESANYA (1968) NMLR 430

(iii)           It is material, will cure the defect and ought to be granted.

  1. This court thereforeinvokes its powers under the provisions of Order 26 Rule 9 of the NICN Rules 2017 which provides;

“A Judge may at any time amend any defect or error in any proceedings”

and hereby order the amendment of the error in the name of the defendant in this suit to include the word “LIMITED”. The name is the name defendant in this suit shall read “ACCION MICROFINANCE BANK LIMITED”.

  1. Order 26 Rule 1 (1)(a) of the NICN Rules 2017allows for amendments to secure substantial justice. This amendment would not present an entirely different case or cause injustice to the other party, not necessitate the hearing of further evidence especially on appeal, not over reach the other party but cure a defect. I so find and hold.

  1.  Now to the preliminary point raised by the claimant counsel in its final address. Counsel prayed the court to hold that all documents frontloaded by the defendant and not tendered into evidence as being abandoned. Defendant counsel did not object to that prayer having reaffirmed that the defendant had tendered into evidence all the documents it seeks to rely upon in this trial. But apparently, defendant counsel did not avert his mind to the series of documents it frontloaded but did not tender into evidence which include emails allegedly exchanged between the claimant and Kenya Airways and email allegedly sent by the claimant on the 23rd of January 2013.

  1. While it is the prerogative of counsel to conduct its case in the way it deems fit,this court is bound by the evidence properly before it and counsel should know that in determining this matter, the court would have to restrict itself to the documents properly tendered and admitted into evidence. This is to enable the court to determine the matter on evidence that the other side had an opportunity to challenge and there is no ambush from either side. Consequently, it is this court’s decision on this issue it would however confine itself to what is properly before it and both parties have had an opportunity to rely on/challenge at trial. I so find.

  1. Having disposed of the preliminary points, I would now go into the claims before this court in the substantive suit. In determining monetary claims as this one, the court has to evaluate the evidence on the basis of proof of entitlement and the quantum thereof. See the case of MOHAMMED DUNGUS& ORS VS ENL CONSORTIUM (2015) NNLR PT 208,PG 39 where Kanyip,J held that;

“Now the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer”

The court went further to rule that;

“The issues before the Court are essentially two: whether the claimants can be said to have proved their claims; and for them to do so, they must show an entitlement to each of the claims. Secondly, whether the defendant has equally proved its counterclaim against the claimants”

  1. Using the test as enunciated in Dungus (supra), the court would examine each claim vis-à-vis the proof of entitlement and the quantum. I must point out at this point that the claimant’s first issue for determination  in its Final Address which is “Whether the defendant has a sustainable defense in this suit as presently constituted” seems to have lost sight of the principle that a party succeeds on the strength of his case and not on the weakness of the other party’s. See the case of PROF THEOPHILUS ADELODUN OKIN & ANOR MRS AGNES IYEBA OKIN (2016) LPELR-41165 CA where the court held;

“By the settled principle of law stemming from sections 131 and 132 of the Evidence Act 2011, a party who makes allegations in a pleading, has a legal obligation to produce evidence to substantiate them as part of his case. It is not sufficient for such a party to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading, although he may lean on any favorable evidence of the opposing party to strengthen his case. This is based on the legal stand that cases are won on the strength of credible evidence adduced by a party who asserts the position of a fact and/or claims the existence of those facts. See E.D. Tsokwa& Sons Company Ltd Vs Union Bank of Nigeria Ltd (1996) 10 NWLR (PT 478) 281, Orakwe& Anor Vs Obiora Chukwu &18 ors (2012),All FWLR (Pt 672) 1677”

Whatever the strength or weakness of the defense put up by the defendant in this suit, the primary duty is for the claimant to prove its claims with credible evidence.

  1. I must also observe here that neither counsel in this matter bothered to lay any foundation for the exhibits tendered through their respective witnesses. Although all the exhibits were admitted without objection from the other side, that does not take away the need to comply with the provisions of the law as to laying of proper foundation as to tendering of documents into evidence as exhibits. That said, this court in the interest of justice would overlook this lapse and depart from the provisions of the Evidence Act 2011 in this regarding laying of foundation for the exhibits admitted in this suit.  I so hold.

  1. The first claim derived its entitlement from the Exhibit C1 and C4. The claim is for “The sum of N881,871.77 (eight hundred and eighty-one thousand, eight hundred and seventy-one Naira Seventy-Seven Kobo) being the total outstanding entitlements due to him”. This total figure is broken down into specific claims which would be dealt with serially.
  2. The first head of claim is for the sum of N84,218.75 which was his pro-rated club membership allowance for the period of January-May 2016 which he worked WHICH shall be dealt with together with the N96,250 which represents his prorated annual travel ticket for January – May 2016 as they both represent items under reimbursable head of exhibit C2. Exhibit C2 has an attachment with various heads which indicate BASE PAY, REIMBURSABLES, SOCIAL COSTS AND OTHERS.
  3. The parties are at variance as to whether or not the payments underthe  Reimbursable Head are automatically earned or to be reimbursed upon proof of expenditure. Exhibits C7,C8,D1 (which referred to an attachment but didn’t have any when eventually tendered into evidence) and D12show the exchanges between the parties. Now as counsel on both sides rightly pointed out, parties are bound by their agreement and the court cannot go outside of this Agreement as evidenced by Exhibits C1,C2 and D4.  See the case of EMEKA S. ENEMCHUKWU Vs CHIMAROKE OKOYE & ANOR (2016) LPELR 40027 CA where Ogunwumiju JCA held;

“In civil matters, parties are bound by their agreement. The courts generally do not interfere in the manner that parties choose to do business with each other as long as it is not criminal. When contracts are voluntarily entered into by parties, they become binding on them based on the terms they have set out for themselves. It is trite that where there is a valid contract/agreement, parties must be held to be bound by the agreement and its terms and conditions”

  1. The term “reimbursable” as stated earlier appears prominently in the attachment to exhibit C2 which both parties have relied on and referred to. It has been defined in the Black’s Law Dictionary as;

“…..It means to make return or restoration of an equivalent for something paid, expended, or lost; to indemnify, or make whole.”

Flowing from the above definition and the exchanges between the parties, it is apparent that the term “reimbursable” was in used in its ordinary meaning. The claimant cannot at the end of his employment chose to give a different definition to that term and shy away from the implication of the terms of his contract. If there was an agreement that the items under the heading “reimbursable” were placed there for tax purposes (whatever that means), the parties could have indicated their agreement to that effect.Furthermore, if there was any tax purpose which overrides the wordings in the agreement between the parties, the claimant failed to furnish the court as to that overriding agreement. Exhibit C7 which referred to Exhibit C1 and C2 clearly show the invitation to the claimant to justify the reimbursement which he responded that the placement of these items were for tax purposes without more.

  1. In the absence of any clear and compelling reason to vary the financial terms as codified and freely entered into by the parties, I refuse to vary or tamper with the clear written wordings of the agreement of the parties as shown in Exhibit C2 and accordingly  find that the claim for N96,250 which represents the Claimant’s  prorated annual travel ticket and N84,218.75 which was the claimant’s pro-rated club membership allowance must fail as the conditions attached to the crystallization of the claim/ accrual of the right to claim have not been met by the claimant.

Accordingly, I find that the parties are bound by Exhibits C1 and C2 and the 2 heads of claim are hereby dismissed. I so find and hold.

  1.  Now coming to the claim for N175,355.78 which represented the claimant’s prorated Leave Allowance for January – May 2016 and N146,129.81 which represents the claimant’s prorated 13th month salary. In C5, the defendant paragraph 3 explicitly stated that;

“our records show that you have an outstanding balance of N660,850.02 only after your leave and 13th Month (pro rata) have been deducted from your outstanding loans”

  1.  On page 2 of Exhibit C2, the defendant provided a breakdown of the financial position of the claimant by its calculations. As can clearly be seen, the defendant acknowledged under “Leave Allowance” that N175,355.78 was payable to the claimant and also N146,129.81 was payable to the claimant as 13th Month salary on a pro-rated basis. The defendant went further in that exhibit to deduct the 2 amounts stated above as due to the Claimant from his loan balance of N982,335.61. To my mind, this is sufficient proof of these 2 heads of claim. The said exhibit C2 which emanated from the defendant, was not challenged in any way,shape or form by the defendant who has even relied on the computation in the said document to file its counterclaim. Without further ado, what is admitted needs no further proof in this instance and I find and hold that the claimfor leave allowance in the amount of N175,355.78 hereby succeeds and the claim for N146,129.81 representing the prorated 13th Month salary is also proven and succeeds. I so hold.

  1.  Next the claimant is asking for N621,715.94 which represents his Leave encashment for 39 days outstanding in accumulated leave. The first question to ask would be “what confers the entitlement for this claim on the claimant?  The parties are agreed that they are bound by the terms of Exhibits C1,C4 and D4. The defendant has quoted copiously from the HANDBOOK of the Bank to show the instances where encashment of unspent leave days are permissible. These conditions are codified in the Handbook with I quoted earlier in the defendant’s submissions.

  1. The claimant on his part is insistent that those conditions as stated in the handbook apply only to staff who were still in service of the defendant. But has not in proof of this head of claim, shown to the court where his own interpretation is derived from; that an exception exists for staff who have left service of the defendant to cash in their unspent leave days without complying with the conditions in the staff handbook for encashment of unspent leave days. As held earlier, parties are bound by the terms of their agreement. And he who asserts, must prove.  The defendant has shown that an application must be made for encashment. Then it may be approved subject to the management’s discretion. The Defendant’s handbook which is exhibit D4 in paragraph 9.12.2 clearly states;

“The CEO has the discretionary right to approve sale of due leave by any/all employees”

  1.  This court would not rewrite terms of an agreement freely entered into by parties based on the interpretation offered by a party to the agreement and tamper with what is subject to discretion. The claimant did not again place anything before this court to show where the entitlement for ex-employees is derived from.  All that is before the court are his testimony which has been challenged and the submissions of his counsel which is not evidence. The fact that the defendant acknowledged that the claimant had 39 unspent leave days in Exhibit C2 does not operate to confer any right to the amount quoted by the claimant as the defendant never acknowledged any sum as due to the claimant for those days. Rather the claimant had an opportunity even within the 6-week notice period he gave to make his claim for the encashment of the unspent leave days and for such requestto be subjected to the normal process in the handbook. But he did not for reasons best known to him. Accordingly, this claim for N621,715.94 for the unspent 39 leave days must fail as the claimant failed to show an entitlement to this amount whether by exhibit C2 or any other document. Again, I repeat, parties succeed on the strength of their cases and here, the claimant has failed to prove this claim. I so find and hold.
  2. N717,971.85 which represents the claimant’s 2015 year-end productivity bonus is also claimed by the claimant and disputed by the defendant as unmerited. For the year in question, recourse must be had to the document that confers entitlement and any conditions attached thereto.Exhibit C2 provides under OTHERS heading that 10% productivity pay is due to the claimant up to a total of N897,464.82 which is subject to “employee performance and administered in line with the incentive policy of the Bank”. That presupposes 2 conditions must be met before the payment is due.

  1. I have examined closely the provisions of exhibits C10 and C11 which combined, form the basis for conferment of entitlementon the claimant of the year end productivity bonus. But going further to examine Exhibit C12, I find that performance rating is not the only basis for the payment of the bonus.  Exhibit C10 must be read subject to Exhibit D4. Exhibit C10 is evidence that a self-assessment was carried out by the Claimant. Now, looking at Exhibit D4, I find that there are several conditions listed therein that must be fulfilled before reliance can be placed on C10 to confer entitlement for the productivity bonus on the claimant.

  1.  Exhibit D4 emanated from the Executive Assistant to the Managing Director of the Defendant and addressed to ACCION MICROFINANCE BANK. The salutation was “dear all” and was sent on the 14 of January 2016 to staff of the defendant. Let me address the claimant’s contention here that he was exempt from compliance with Exhibit D4. There is nothing on the face of D4 to show that exemption on the face of it. As at the 14th of January 2016, the claimant was an employee of the defendant and from the face of exhibit C10, his self-assessment was also subject to line manager/supervisor review as contained in D4. Indeed, the claimant had made reference to this review in paragraph 6 of exhibit C8. I therefore find that the claimant was bound by exhibit D4.I so hold.

  1. Exhibit D4 set several timelines for different steps to be taken after filling out the self-assessment forms. Between the 15th- 19th of February 2016, the Management Committee in charge of Bank wide Performance of the defendant bank was supposed to deliberate on and “finalize all performance Review recommendations and ensure that all recommendations fall within and comply with the approved Recommended Ratings Distribution(RRD) for presentation to the final Approvers”. On the 26th of February 2016, a final Approval was supposed to take place.

  1. Exhibit C10 was dated 1st of March 2016. That is after the date set down for final approval of the ratings, review and recommendations of the DECEMBER 2015 YEAR END REVIEW AND EVALUATION PROCESS. Exhibit D4 provides for all forms to be submitted by 29th January 2016. Exhibit C10 which I had earlier held is subject to exhibit D4 failed to comply with the provisions laid out in D10. It carries only the signature of the Claimant and no exemption has been shown to the satisfaction of this court that the claimant did not have to comply with D4.

  1. Exhibit C10 missed all the deadlines and was not even dated until after the close of the Performance evaluation process on the 26th of February 2016.  In the circumstances and from the documentary evidence before this court, I find that this court cannot rely on exhibit C10 for the conferment on entitlement of the year 2015 productivity bonus on the claimant. Only the first step necessary for the validation of Exhibit C10 was taken. There was no review by supervisor, no submission as at when due and was not subjected to Management Committee review. The claimant was obviously operating with a different set of rules but did not place before the court what entitles him to do so. All that is before the court is a document submitted out of time, not reviewed nor approved. Accordingly, the claim for N717,971.85 which represents the claimant’s 2015 year-end productivity bonus hereby fails on the ground that exhibit C10 does not show compliance with the defendant’s processes as to confer entitlement and this head of claim is hereby dismissed. I so hold.

  1. On the whole and for the avoidance of doubt, the claimant’s case succeeds in terms of the following orders;

(i)                Claimant’s claims of N175,355.78 which represented his prorated Leave Allowance for January – May 2016 and

(ii)              N146,129.81 which represents his prorated 13th month salary succeeds, and the totalsum of N321,485.59is hereby awarded in favour of the claimant.

  1. The following claims failed for the reasons given earlier and are dismissed accordingly.

(i)                N717,971.85 which represents the claimant’s 2015 year-end productivity bonus

(ii)              N621,715.94 which represents his Leave encashment for 39 days outstanding in accumulated leave,

(iii)           N84,218.75 which was his pro-rated club membership allowance for the period of January-May 2016 and

(iv)            N96,250 which represents his prorated annual travel ticket for January – May 2016.

Judgment is entered accordingly.

COUNTER CLAIM.

  1. Coming to the counter claim, there really isn’t a dispute as to this claim. The defendant to the counter claim had acknowledged that he owed the counterclaimant the sum of N982,335.61 which ought to be deducted from his outstanding claims due to him from the counterclaimant. An admission has been defined in ANASAN FARMS LTD VS NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 @ 252 as “ a statement oral or written by a party or his agent to legal proceedings and which statement is adverse to his case”. Reference also to IYEKE VS ABU (2015) LPELR-25735. What is admitted needs no further proof especially a categorical admission like the one made by the defendant to the counterclaim. See the cases of UNION BANK OF NIGERIA PLC VS IKECHUKWU ONUORAH & ORS (2007) LPELR 11845 (CA), ANKA VS LOKOJA (2001) 4 NWLR (PT702) 178 @182, NV SCHEEP VS MV ARAZ (2000) 15 NWLR (PT 691) 622 @ 634. Accordingly, I find that the admission of the defendant to the counterclaim is binding on him.
  2. The sum being claimed in the counterclaim is also contingent on the deduction of the defendant to the counterclaim’s dues from the counterclaimant. The counterclaim is for N660,850.02 and from the computation of the counterclaimant, it arrived at this sum after deduction of N321,485.59 which it had calculated as being due to the claimant for the 13th month salary as pro-rated and his pro-rated leave allowance. This court had earlier held that the sum of N321,485.59 is due to the defendant to the counterclaim. Further to the agreement of both parties that the sum of N982,335.61 is the outstanding indebtedness of the defendant to the counterclaim to the counterclaimant, the counterclaim succeeds in the sum claimed which is N660,850.02 and I hold that the counterclaimant is entitled to deduct the sum of N321,485.59 from the entitlement of the defendant to the counterclaim with the counterclaimant to offset the totalindebtedness of N982,335.61 of the defendant to the counterclaim  to it.I so hold.
  3.  For the avoidance of doubt, I make the following orders;

(i)                The counter claim succeeds in the sum of N660,850.02

(ii)             In addition, the counterclaimant is entitled to deduct the sum of N321,485.59 from the entitlement of the defendant to the counterclaim with the counterclaimant to offset the acknowledged and admitted debt of N982,335.61 owed the counterclaimant.

Judgment is hereby entered accordingly.

I make no order as to costs.

Terms of this judgment are to be complied with within 30 days.

Hon. Justice Paul Ahmed Bassi

JUDGE

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